Delhi District Court
State vs . : Krishan @ Kishan @ Chunda on 6 June, 2019
IN THE COURT OF SHRI CHANDRA BOSE, ADDL. SESSIONS JUDGE-03
NORTH DISTRICT, ROHINI COURTS: DELHI.
Session Case No.: 619/2018
CNR No. : DLNT01-008704-2018
FIR No. : 433/2018
Under Section : 302/506 IPC
Police Station : Samai Pur Badli
State Vs. : Krishan @ Kishan @ Chunda
S/o Shri Pappu
R/o E-494, Navjeevan Camp, Kalka Ji,
Govind Puri, Delhi.
Offence complained of : 302/506 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 18-09-2018
Date of Judgment : 06-06-2019
JUDGMENT :
1) On the intervening night of 21/22 May 2018 in barrack No.107, Ward No.2, Rohini, Jail at about 1:00 am Krishan one of the under trial prisoner asked another UTP Pawan to prepare Roohafza for him. Pawan refused to do so on which Krishan @ Chunda caught hold the hair of Pawan and hit on his chest with elbow due to which Pawan started taking long breath. Krishan @ Chunda said "Marne ka drame kar reha hai" and slapped him, put his foot on his chest and neck and continued to hit him. When Krishan Kumar tried to intervene he threatened him. Kalu one of the inmate rang the bell. Pawan was SC No. 619/2018 Page No. 1 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli shifted to hospital where he was declared dead. Police was informed, FIR was registered. Krishan was arrested. After completion of investigation, charge sheet against accused was filed. Ld. MM after complying with the provisions of section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC was exclusively triable by the Sessions Court.
2) Accused was charged for the offence punishable u/s 302 IPC and 506 IPC to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3) Prosecution in order to prove its case examined 40 witnesses.
4) Sh. Jagdish Singh, Deputy Supdt. Rohini Jail No.10 was examined as PW-1. He deposed that on 22.05.2018, he was working as Deputy Supdt. On that day Sh. Niranjan Dahiya, Asstt. Supdt. Jail informed him that UTP Pawan S/o Sh. Vijay Nath who was in barrack No.107, Ward No.2 was found unconscious. Sh. Niranjan Dahiya had taken Pawan to the Jail dispensary where he was examined and checked by the doctor. Thereafter, UTP Pawan was taken to Dr. BSA hospital by the Jail officials and the doctor examined Pawan and he was declared dead by the doctor. On inquiry, they came to know that inmate Krishan @ Chunda S/o Sh. Pappu who was also in the same barrack, had given beatings to Pawan on the demand of Roohafza in SC No. 619/2018 Page No. 2 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli the night hours at about 2:00 am to 3:00 am as Pawan refused to prepare Roohafza for him. Due to beatings, Pawan became unconscious and thereafter duty officer Niranjan Dahiya was informed. He accordingly, informed Supdt. Jail No.10, Rohini on telephone. Information was also sent to NHRC/Court/DCP Outer District/ SHO PS: S.P. Badli and family members of Pawan. He moved complaint Ex.PW1/P1. The copy of the wireless message is proved as Ex.PW1/P2. He also identified the accused correctly. He also pointed out the place of occurrence to the police on which police prepared the site plan.
5) During cross-examination by the Ld. Amicus Curiae he denied the suggestion that nobody informed him that accused gave beatings to the deceased or that he is deposing falsely to save the jail authorities.
6) Kamlesh was examined as PW-2. He deposed that on 21.05.2018 he was in barrack No.107, ward No.2 of Jail No.10, Rohini, Delhi in connection with a murder case of PS: Lajpat Nagar. There were 28 to 29 inmates in the barrack. In the intervening night of 21/22.05.18 at about 1:30 am after hearing noise he woke up. One of the inmate Pawan was lying unconscious. The other inmates were sprinkling water on the face of Pawan. Inmate Kalu, Khajanchi Chacha, Karan @ Mental, Suli Bhai, Kanak and other whose name he does not remember, were present and trying their best so that Pawan re-gains consciousness. When Pawan did not regain consciousness the bell of the SC No. 619/2018 Page No. 3 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli barrack was pressed. HC Sunil Balhara reached the barrack and on seeing the condition of Pawan, he called the doctor. Pawan was taken from the barrack. Krishan @ Chunda accused present in the court was also present in the barrack on that night.
7) During cross examination by APP for the State he admitted that Pawan used to work for Krishan and on that night Krishan gave a kick blow to Pawan to prepare Roohafza for him and thereafter, Krishan went to his bed. He does not remember if Pawan went to sleep and did not prepare Roohafza for Krishan. He did not support the case that he witnessed the incident that thereafter Krishan pulled the hair of Pawan and gave fist blows on the face of Pawan. He was confronted with his statement recorded by the police but he did not support the prosecution case.
8) During cross-examination by Ld. Amicus Curiae for accused, he denied the suggestion that accused never asked Pawan to do his work or that Pawan never work for Krishan. He did not tell the police that before he went to sleep, Krishan asked Pawan to prepare Roohafza for him and Krishan gave blow to Pawan. In reply to court question, he stated that he went to sleep at 10:00 pm. SC No. 619/2018 Page No. 4 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli
9) Kuber Jatav was examined as PW-3 he deposed that on 21.05.2018 he was in Rohini Jail, Barrack No.107, ward No.2, Jai No.10. He was in Jail in case of PS: Kapashera. There were 30 inmates in the barrack. At about 11:00 pm he went to sleep. Pawan was sleeping by his side. Pawan used to do the work of Krishan and Suli etc. At about 2:30 am he got up as the head of Pawan hit his foot. He saw that Krishan was putting his foot on the neck of Pawan and giving him kick blows. When he tried to save Pawan, Krishan threatened him that if he intervened he would also be killed. Accused gave repeated blows on the chest of Pawan saying Roohafza kaise nahi banayega. Pawan died on the spot. Kalu rang the bell of the barrack. Both Sunil and Balram warden reached there. At that time food of Ramzan was being served and that is why warden reached early. Doctor was called. Pawan was taken out of the barrack. He identified Krishan. He stated that accused has also threatened him if he deposed against him, he would also be killed.
10) During cross-examination by Ld. Amicus Curiae for the accused he deposed that he knew all the inmates of that barrack. He denied the suggestion that Pawan was not sleeping by his side. There was CCTV Camera inside the barrack. He denied the suggestion that accused never asked any inmate to work for him or that accused was maintaining good conduct in the jail. He denied the suggestion that he was not having good relations with Pawan or that he along with other inmates gave beatings to Pawan. He denied the SC No. 619/2018 Page No. 5 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli suggestion that accused was good friend of Pawan or that he has been falsely implicated so that accused may not depose against him. He denied the suggestion that accused never threatened him at any point of time. His statement was recorded in the morning of 22.05.18 by the police. All the inmates of barrack woke up when accused was giving beatings to Pawan. He denied the suggestion that Pawan used to take drugs in the jail or that he along with other inmates quarreled with Pawan on the issue of taking drugs and gave him beatings. The witness stated that accused used to take the drugs and also used to sell the drugs.
11) Sh. Balwan Singh, Deputy Supdt. Jail No.10 was examined as PW-4. He deposed that on 08.08.2018 he received notice u/s 91 Cr.PC Ex.PW4/P5. In reply to the notice he furnished the desired documents vide covering letter Ex.PW4/P6. He provided 8 history tickets that is of Pawan (deceased), Krishan (accused), Kuber Singh, Budha, Khazanchi Lal Garg, Kamlesh, Kishan Kumar s/o Sh. Karan Singh, Kalu @ Vijay and Pappu collectively Ex.PW4/P7. He also supplied the duly attested copy of register for persons put on work inside or outside from 21.05.2018 to 27.05.2018 Ex.PW4/P8. He also provided photo copy of duty roaster of warden on the intervening night of 21/22 May 2018 Ex.PW4/P9. The information of death of inmate Pawan given by medical officer of the dispensary of Jail is proved as Ex.PW4/P10. He deposed that there was no CCTV camera installed in the SC No. 619/2018 Page No. 6 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli barrack No.107 of ward No.2. There was no report of UTP Pawan (deceased) or doctors present on duty in the hospital regarding any assault by the accused on the left hand of deceased with a blade 2-3 days prior to the murder.
12) During cross-examination by the Ld. Amicus Curiae he admitted that there was CCTV camera installed in the barrack No.107, ward No.2. He voluntarily stated that camera was not working on that night. He admitted that in reply Ex.PW4/P6 it is mentioned that no CCTV Camera was installed in Barrack No.107, Ward No.2. He denied the suggestion that he intentionally did not give correct record with respect to the CCTV Camera installed in barrack No.107, ward No.2 in order to save the real culprit. He denied the suggestion that on the day of incident, CCTV was working properly in Barrack No.107 ward No.2.
13) In reply to a court question, he stated that he does not remember the name of the person who told him that there is no CCTV camera. He did not himself try to verify about the CCTV camera before answering the notice. He also does not remember as to who told him that CCTV camera was not working.
14) During further cross-examination by Ld. Amicus Curiae he denied the suggestion that he personally visited the barrack No.107, ward No.2 or that the camera was in working condition or that he watched the CCTV footage SC No. 619/2018 Page No. 7 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli which was withheld to save the actual culprits.
15) Ct. Naveen was examined as PW-5. He prepared the scaled site plan at the instance of Inspector Ved Parkash and proved the same as Ex.PW5/P11. Nothing material came on record to discredit the witness during cross-examination by Ld. Amicus Curiae.
16) Pappu was examined as PW-6. He deposed that on 21.05.2018 he was sleeping in his barrack. At about 2:00/ 2:30 am he woke up and saw that accused Krishan asked Pawan to prepare Roohafza and Pawan refused to prepare roohafza for him. Accused Krishan started giving beatings to Pawan with kick and fist blows. After giving beatings to Pawan accused Krishan was going towards the place where he used to sleep. The sound of Eeh - Eeh came from the mouth of UTP Pawan due to severe beatings given to him by the accused. Accused got enraged and again gave beatings to Pawan and told him you said Eeh - Eeh. Accused gave fist and kick blows on the chest of Pawan and also on his neck. Accused threatened all the inmates of the barrack that they should tell other people whoseover making enquiry from them that Pawan was making theft. He pressed the bell to call Head warden and told that Krishan ne Banda Maar Diya. Head warden saw Pawan lying on the ground unconscious. Thereafter, Head warden went out and returned with the doctor who checked Pawan. Pawan was shifted to the dispensary of jail. He also SC No. 619/2018 Page No. 8 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli deposed that one day prior to this incident accused Krishan had given a cut on the left hand of Pawan with a blade. That matter was not brought to the notice of doctor or jail warden. Pawan informed Suli Bhai and others that accused Krishan had given a cut on his left hand with blade on which accused threatened Pawan and on the same night accused killed him. He also deposed that he was threatened in the jail and asked that he will only depose that he was sleeping and had not seen anything otherwise it would not be good for him. But he refused and stated that he will report to the Judge and only thereafter they stopped threatening him. He correctly identified the accused.
17) During cross-examination by Ld. Amicus Curiae he deposed that he is lodged in the jail since 22.08.2016. He knows Krishan Kumar S/o Sh. Karan Singh as he was lodged in the same barrack in Rohini Jail. They used to treat Krishan Kumar as their younger brother. Kuber Jatav was earlier lodged in the same barrack but now on bail. Kuber Jatav and Krishan Kumar remained with him in the same barrack for about 1½ month after the murder. All the inmates of the barrak woke up at the time of quarrel. Police made inquiries from all the inmates in the room of Deputy Supdt. but he does not know if police recorded their statements. He denied the suggestion that IO tutored him as to what he has to depose in the court. He denied the suggestion that he was not having good relations with Pawan or that he along with Kuber Jatav, Krishan Kumar and other inmates gave beatings to Pawan or that accused has been SC No. 619/2018 Page No. 9 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli falsely implicated so that accused may not depose against them. He denied the suggestion that he concocted a false story in order to save himself. He denied the suggestion that he used to take smack inside the jail along with Kuber Jatav, Krishan Kumar and other inmates or that on the issue of taking drugs, they gave beatings to Pawan.
18) Krishan Kumar S/o Sh. Karan Singh was examined as PW-7. He deposed that on 21.05.2018 he was in barrack No.107 ward No.2, Jail No.10, Rohini. At about 2:30 am he woke up after hearing the noise. He saw that Krishan was asking UTP Pawan to prepare roohafza for him. Pawan replied, "main saara din apka kaam karta hu, ab to mujhe raat ko sone do". Krishan started abusing Pawan as Pawan did not get up. After 4-5 minutes Pawan got up and sat on his bed. Krishan came to Pawan and gave a fist blow on the chest of Pawan and 4-5 slaps on the face of Pawan. Pawan fell down on the ground. Krishan put his feet on the neck of Pawan. He requested accused Krishan, "mai tera kaam kar deta hu, isse mat maar". Accused Krishan threatened him to cause injury with blade. Thereafter, accused Krishan went to his bed and started taking his meal. Somebody rang the bell. After 3-4 minutes warden Balara reached there. After seeing Pawan warden went away and came back with doctor. They took Pawan with them. He stated that on 16.07.2018 his statement was recorded before court which is Ex.PW7/P12.
SC No. 619/2018 Page No. 10 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 19) During cross-examination by the Ld. Amicus he stated that he is
lodged in the Jail for the last 33 months. The bed of Pawan was adjacent to his bed placed diagonally. Some inmates woke up when accused Krishan gave beatings to Pawan.
Question: Whether you or other persons tried to save Pawan? Ans. I tried to save Pawan from the accused but everybody was afraid of accused.
20) PW-7 was on speaking terms with Kuber Jatav and also other inmates. He denied the suggestion that IO tutored him as to what he had to depose in the court. He denied the suggestion that he was not having good relations with the Pawan or that he along with Kuber Jatav, Krishan Kumar and other inmates gave beatings to Pawan or that accused has been falsely implicated so that accused may not deposed against them. He denied the suggestion that he concocted a false story in order to save himself. He denied the suggestion that he used to take smack inside the jail along with Kuber Jatav, Krishan Kumar and other inmates or that on the issue of taking drugs they gave beatings to Pawan.
21) Ms. Richa Manchanda, Ld. MM was examined as PW-8. She deposed that on 13.07.2018 IO/Inspector Ved Parkash moved application Ex.PW8/P13 for recording statement of Khazanchi Lal Garg and Kalu @ Vijay which was marked to her by the Ld. Link MM. Witness Khazanchi Lal Garg was produced before her from J/C. She conducted proceedings Ex.PW8/P14 U/s SC No. 619/2018 Page No. 11 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 164 Cr.PC she recorded statement of Khazanchi Lal Garg Ex.PW8/P15. She gave the certificate Ex.PW8/P16 that statement is recorded truly and correctly. Witness Kalu @ Vijay was produced before her from J/C. She conducted the proceedings Ex.PW8/P17 u/s 164 Cr.PC. She recorded statement of Kalu @ Vijay Ex.PW8/P18 she gave the certificate Ex.PW8/P19 that statement is true and correct. IO moved application Ex.PW8/P20 and Ex.PW8/P21 for supplying of copies of statement recorded u/s 164 Cr.PC which was allowed.
22) Ms. Sadhika Jalan, Ld. MM, North, Rohini Court, Delhi was examined as PW-9. She has deposed that on 16.07.2018, IO/Inspector Ved Prakash moved an application Ex. PW9/P-22 for recording of statement of Kamlesh @ Kamal and Krishan Kumar S/o Karan Singh which was marked to her by the Ld. Link MM and witness Kamlesh @ Kamal was produced from JC by the IO and she conducted the proceedings under Section 164 Cr.PC Ex. PW9/P-23 bearing her signature at point X. She recorded the statement of Kamlesh @ Kamal already Ex. PW2/P-4 bearing her signature at point X and witness signed at point A. She gave certificate Ex. PW9/P-24 that the statement was recorded truly and correctly which bears her signature at point X. Witness Krishan Kumar S/o Sh. Karan Singh was produced from JC by the IO. She conducted the proceedings under Section 164 Cr.PC Ex. PW9/P-25 bearing her signature at point X. She recorded the statement of Krishan Kumar S/o Sh. Karan Singh already Ex. PW-7/P-12 bearing her signature at point X SC No. 619/2018 Page No. 12 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli and witness signed at point A. She gave certificate Ex. PW9/P-26 that the statement is recorded truly and correctly which bears her signature at point X. IO moved an application Ex.PW9/P-27 for providing the copies of statements recorded under Section 164 Cr.PC of the witnesses Kamlesh @ Kamal & Krishan Kumar s/o Sh. Karan Singh which were allowed. No cross-examination was conducted by the ld. Counsel for the accused.
23) Dr. Bharti Bhardwaj, Sr. Scientific Officer, Physics, FSL, Delhi was examined as PW-10. She has stated that on 22.05.18 she received a call of police officials of PS SP Badli to reach at Rohini Jail, Ward no.2 and she along with her staff reached at BSA hospital where they came to know that a boy namely Pawan had been declared dead as he was in Rohini Jail, Ward no.2. They saw the dead body, there were blackish mark present on the neck of dead body. Thereafter, they went to Ward no.2 Rohini Jail, where the incident took place. The bedding and belongings of inmates were lying on the floor where the incident took place. The bedding of deceased/victim was also found wet when we inspected the same. During the inquiry made by Ld.MM, the other inmates informed that arguments had taken place between deceased and an inmate. She further deposed that they left the FSL at 11 AM and return to the FSL at about 2.30 PM. Inadvertently by typical error PM is mentioned instead of 11 AM. The detail report of crime team visit is Ex.PW-10/P-28 bearing her signature at point A. During cross-examination, some suggestions have been SC No. 619/2018 Page No. 13 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli put to the witness which she has stated as wrong.
24) Sh. Naval Kishore Joshi, Sr. Scientific Officer, Chemistry, FSL, Delhi was examined as PW-11 and he has stated that on 04.06.18, one sealed wooden box was received in the office of FSL and the seal was tallied as per forwarding authority specimen seal. He further stated that he opened the box and examined the exhibits and gave detail report Ex.PW-11/P-29 bearing his signature at point A. During cross-examination, some suggestions have been put to the witness which he has stated as wrong.
25) Dr. Joginder, Medical Officer, Central Jail, Rohini, Delhi was examined as PW-12 and he deposed that on 21.05.18/22.05.18, he was present in the dispensary of Rohini Jail complex and on that day he was on night emergency duty. He further deposed that on that night at about 2.50 AM of dated 22.05.18, he received a call from Jail Warden and went to Ward no.2, barrack no.107 where he found one inmate namely Pawan son of Vijay Nath, 28 year male unconscious. He further deposed that he examined the patient and Pawan was shifted to Minor illness room and patient was given oxygen. He further deposed that BP of inmate Pawan was going down and at 3.18 AM the patient was given fluid and CPR was started and BP was non-recordable and pulse rate not palpable. He further deposed that the patient was shifted to BSA Emergency and he and jail staff also accompanied the patient in the ambulance and patient was put on oxygen during shifting. He further deposed that he SC No. 619/2018 Page No. 14 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli came to know that victim Pawan was beaten by Kishan in the barrack and he noticed 3-4 bluish longitudinal marks over left lower neck of Pawan who was admitted in Dr. BSA hospital where he was declared dead. He filed copy of emergency register which was already Ex.PW-4/P-10 collectively (OSR) bearing his signature at point B and the report prepared by Medical Officer Incharge of Rohini Jail which was already Ex.PW-4/P-10 colly.
26) During cross-examination, PW-11 stated that they continued to provide CPR to Pawan till we reached BSA hospital. He denied the suggestion that he has not noticed 3-4 bluish longitudinal marks over left lower neck of Pawan. He further stated that there was a possibility of rib fracture during the process of CPR.
27) Sh. Vinay S/o Sh. Duli Chand was examined as PW-13 and he has stated that on 23.05.18, he went to Moulana Azad Medical College with other relatives where the post mortem on the dead body of my brother-in-law/ Sala Pawan S/o Vijay was to be conducted and he and Vishnu S/o Vijay Nath identified the dead body of Pawan and his statement in this regard was Ex.PW- 13/P-30 bearing his signature at point A and after post mortem the dead body was handed over to them vide dead body handing over memo Ex.P-13/P-31 bearing his signature at point A. No cross-examination was conducted by the ld. Counsel for the accused.
SC No. 619/2018 Page No. 15 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 28) Sh. Vishnu son of Sh. Vijay Nath was examined as PW-14 and he
has stated that on 23.05.18, he went to Moulana Azad Medical College with other relatives where the post mortem on the dead body of my brother-in-law/ Sala Pawan S/o Vijay was to be conducted and he and Vishnu S/o Vijay Nath identified the dead body of Pawan and his statement in this regard was Ex.PW- 14/P-32 bearing his signature at point A and after post mortem the dead body was handed over to them vide dead body handing over memo already Ex.P- 13/P-31 bearing his signature at point B. No cross-examination was conducted by the ld. Counsel for the accused.
29) Sh. Sunil Balhara, Head Warden, Central Jail, Rohini, Delhi was examined as PW-15 and he has stated that in the intervening night of 21/22.05.18, he was performing duty as Head Warden from 9.30 PM to 5.30 AM in Ward no.4, Rohini Jail, Delhi and at about 2.45 AM he along with Warden Parvinder were distributing the food to the under trial prisoners in ward no.2, who were observing Rozas. He has further stated that they heard the bell i.e. the emergency call, rung from barrack no.107 of ward no.2 and he asked Parvinder to check as to what is the reason and after some time Parvinder came there along with medical staff. He has further stated that he along with Medical staff and Warden Parvinder went to barrack no.107, ward no.2 and he opened the barrack and they found Pawan lying on his bed in unconscious SC No. 619/2018 Page No. 16 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli condition and Doctor examined Pawan in the barrack. He has further stated that thereafter, Pawan was taken to dispensary in the jail and Doctor gave medical aid to Pawan in the dispensary and thereafter, Doctor said that Pawan was to be shifted to hospital and he was taken to hospital in ambulance. He has further stated that he has not accompanied Pawan to the hospital in the ambulance and he along with Asst. Supdt. Jail Sh. Niranjan Dahiya, Warden Parvinder went to barrack no.107 and they made inquiries from the UTPs as to what had happened upon which inmates informed that Pawan was beaten by Kishan @ Chunda and thereafter, they came to the office of Dy. Supdt. Jail Sh. Jagdish and informed him about the incident. He has further stated that Doctor returned from the hospital and informed that Pawan had died and thereafter, IO came and visited the barrack and he also accompanied IO to that barrack. He has further stated that he had pointed out the bedding of Pawan on which he was lying and three multicolour chadar and two multi colour blankets and a bottle having label of Hamdard Sharbat were taken by the IO. He has correctly identified accused Krishan @ Chunda present in the court on that day.
30) Ld. Addl. PP sought permission to ask one leading question from PW-15 which was allowed. PW-15 has stated that it was correct that three multi colour bed sheets, two multi colour blankets were put in a bag and the mouth of the bottle having less than half quantity of red colour liquid was tied with cloth and the bag as well as the mouth of bottle were sealed with seal of NK and seized vide memo Ex.PW-15/P-33 bearing his signature at point A and SC No. 619/2018 Page No. 17 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli he can identify the bedding and bottle. Thereafter, MHC(M) has produced one bag duly sealed with the seal of NK bearing the particulars of present case which were intact and same was opened and found containing three multi colour bed sheets, two multi colour blanket and a bottle of 750 ml having label of Hamdard Dawakhana, LIC 10013064000251 and month of mfg.05/18 which were shown to the witness and he correctly identified three bed sheets, two blankets and bottle of Rooafjha which were seized by the police from barrack no.107, Ward no.2 as these articles belongs to Pawan and same were collectively Ex.MO-1.
31) During cross-examination, some suggestions were put to the witness which he had stated as wrong. This witness was confronted with statement Ex.PW-15/D-1 wherein it was not so recorded that rooafjha bottle was also seized from the barrack specifically qua rooafjha bottle. He has further deposed that he do not know the name of inmates who informed him about the incident
32) Sh. Pravinder S/o Sh. Risal Singh,Warden, Rohini Jail Complex, Delhi was examined as PW-16 and he has stated that in the intervening night of 21/22.05.18, he along with Head Warden Sunil Balhara was performing night duty in Ward no.1 and 2 from 9.30 PM to 5.30 AM. He has further stated that on that night about 2.45 AM, they were distributing food for Roza in barrack no.101 and 102, in ward no.2. At the same time, we heard a bell from barrack no.107 of Ward no.2 and he went to barrack no.107 where they were informed SC No. 619/2018 Page No. 18 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli by inmates that UTP Pawan was lying and conscious and he went to dispensary of Rohini Jail and made a medical call and also made a call in Deodhy for informing the medical call. He has further stated that he along with medical staff reached in barrack no.107, Ward no.2 and medical staff advised them to open the barrack no.107 and he took the key from head warden Sunil Balhara who was distributing the food for Roza in barrack no.101 and 102 and opened the barrack no.107, where UTP Pawan was lying unconscious and he was examined by medical staff who advised them to take the UTP Pawan to the jail hospital and he was taken out of barrack no.107 to jail hospital on a stretcher. He has further stated that DO Niranjan Dahiya met them on the way to the jail hospital and Doctor medically examined UTP Pawan and doctor of Rohini Jail advised to take UTP Pawan to BSA hospital and Doctor of dispensary, other staff and DAP guards took UTP Pawan in an ambulance to Dr. BSA hospital. He has further stated that he along with DO went to barrack no.107 where they made inquiry from other inmates, who informed that a quarrel took place between Pawan and Kishan and Pawan was beaten by Kishan. This witness correctly identified the accused Kishan who was present in the court on that day.
33) During cross-examination, PW-16 has deposed that he can not tell the names of the inmates who informed that Kishan gave beatings to Pawan.
SC No. 619/2018 Page No. 19 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 34) Sh. Niranjan Singh Dahiya S/o Sh. Chand Ram was examined as
PW-17 and he has stated that in the intervening night of 21/22.05.18, he was performing night duty from 10 PM to 6 AM as Asst. Supdt. of Rohini Jail and at about 2.55 AM, Head Warden Anil, no.702 informed him that there was a medical call in barrack no.107, ward no.2 and at that time he was present in front of the kitchen and he went to ward no.2 where Warden Pravinder and Warden Sunil and medical staff were taking UTP Pawan on a stretcher to the jail dispensary and he accompanied them to the dispensary where doctor Joginder Malik examined the patient and advised them to take UTP Pawan to the hospital. He has further stated that Dr. Joginder advised him to make arrangement for taking the UTP to the hospital and he made a call to the control room DAP and also informed to the driver of an ambulance and the ambulance entered the main gate of the dispensary and UTP Pawan was shifted to ambulance along with doctor and nursing staff took UTP Pawan to the hospital and DAP guard also boarded the ambulance from the Deodhy. He has further stated that he along with other staff of the jail authority went to barrack no.107, Ward no.2, where he came to know from the inmates that a quarrel took place between UTP Pawan and Kishan regarding preparing of rooafjha and he was also informed by the inmates that UTP Pawan was beaten by Kishan @ Chunda. The witness correctly identified accused Kishan @ Chunda who was present in the court on that day.
35) During cross-examination, some suggestions have been put to SC No. 619/2018 Page No. 20 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli
the witness which he has stated as wrong. He has further deposed that he do not know the name of inmates who informed him about the quarrel/incident.
36) Dr. Raj Kumar, Sr. Resident and Dr. Rohit Bharti Sr. Resident, Department of Forensic Medicines, Moulana Azad Medical College, Delhi were examined as PW-18 and PW-19 respectively and they have stated that on 23.05.18 they being member of the medical board conducted post mortem on the body of Pawan son of Vijay Nath, 28 year male along with chairman Dr. Dheeraj Buchade and Dr. Raj Kumar conducted post mortem on the body of Pawan and opined that death occurred as a result of cardiogenic shock consequent upon blunt force trauma to the chest which was sufficient to cause death in ordinary course of nature. They have further stated that all injuries are ante mortem in nature and fresh in duration except injury no.6 and prior to death and injury no.1 to 5 caused by blunt force and injury no.6 was caused by sharp edged weapon and 2-3 days old in duration. They have further stated that over all pattern of injuries is consistent with having been produced in a physical assault. They have further stated that the viscera, dry blood on gauze, nails clipping from both hands are packed, sealed and handed over to the police/IO along with sample seal of the department. They have further stated that they also prepared diagram sheet of injuries. They have further stated that all the inquest papers along with post mortem report were signed and handed over to the IO/police. The post mortem report was Ex. PW-18/P-34 bearing his signature at point B and signature of Dr. Raj Kumar at point A and Chairman Dr. SC No. 619/2018 Page No. 21 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli Dheeraj at point C on each page running into 7 pages including diagram sheet of injuries.
37) During cross-examination, PW-18 has deposed that it is correct that if a person fell on the corner of the bed or any hard blunt object the injury no.1 may be possible and voluntarily not possible in a case of fell on the ground. Suggestions given to PW-18 and PW-19 were denied as wrong.
38) Shri Anil Yadav S/o Shri Ram Gopal was examined as PW-20 and he has stated that in the intervening night of 21/22.05.2018, he was performing his duty from 9:30 pm to 5:30 am as deodhy audheydaar and at about 2:50 am warden Parvinder made a call through intercom at deodhy and informed me that emergency medical required in ward no. 2 barrack no. 107 and he went to the room of duty officer i.e. Asstt. Supdt. Nianjan Singh Dahiya and informed him regarding medical emergency requirement at barrack no. 107 ward no. 2 and Asstt. Supdt. Niranjan left for the said barrack and later on he came to know that one UTP Pawan was beaten by UTP Krishan @ Chunda. He further stated that he with the help of Niranjan and other staff sent UTP Pawan to BSA hospital. This witness correctly identified accused Krishan @ Chunda who was present in the court.
39) During cross-examination conducted by ld. Amicus Curie for the accused, PW-20 denied the suggestions given to him.
SC No. 619/2018 Page No. 22 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 40) ASI Kishan Kumar No. 7303 was examined as PW-21 and he has
stated that in the intervening night of 21/22.05.2018, he was performing his duty from 8:00 pm to 8:00 am and at about 3:30/3:25 am duty officer Rohini Jail informed him about emergency. He has further stated that he alongwith HC Jag Parvesh went to Deodhy where we boarded the Jail Ambulance which took UTP Pawan to Dr. BSA Hospital. He has further stated that in the jail ambulance Dr. Jogender Malik and nursing Asstt. Babloo were also present with UTP Pawan and oxygen mask was on the mouth of UTP Pawan and he was admitted in the hospital and doctor checked and examined UTP Pawan and declared him dead.
41) During cross-examination conducted by ld. Amicus Curie for the accused, PW-21 has deposed that UTP Pawan was unconscious in the Ambulance.
42) ASI Ram Kumar, No. 2569/D, Mobile Crime Team, Rohini was examined as PW-22 and he has stated that on 22.05.2018, he was working as Incharge Crime Mobile Team and on that day, on receipt a call from the control room, he alongwith Ct. Vikas, SI Manish Kumar & Ors. and left to BSA Hospital where they met ASI Naresh Kumar of PS S.P. Badli and FSL team Rohini. He has further stated that Ld. MM Sh. Sachin Gupta was also present in the hospital. He has further stated that they saw the dead body of UTP Pawan and SC No. 619/2018 Page No. 23 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli found injury marks on the neck of the dead body. He has further stated that the photographer Vikas took the photographs of the dead body from different angles and SI Manish tried his best to lift the finger prints but no finger prints could be lifted and FSL team also took the photographs of the dead body and thereafter, he alongwith mobile crime team, ld. MM and FSL team and police staff of PS S.P. Badli reached at Barrack no. 107, Ward no. 2, Rohini Jail where he inspected the scene of crime and photographer took the photographs of the scene of crime from different angles at my instance. He has further stated that they conducted the proceedings from 9 AM to 2.30 PM on both the places i.e. BSA hospital and scene of crime and he prepared scene of crime report which is Ex. PW22/P35 bearing his signature at point A.
43) During cross-examination, PW-22 has deposed that it is correct that SI Manish could not lift the chance print of hands or foot from the body including neck of the deceased and in his presence, no articles were seized or sealed and had not noticed any bottle of Roohafza at the scene of crime.
44) Ct. Vikas No. 1110/RD was examined as PW-23 and he has stated that on 22.05.2018, he was working as a photographer in Crime Mobile Team and on that day, on receipt a call from the control room, he alongwith ASI Ram Kumar, SI Manish Kumar & Ors. and Left to BSA Hospital where they met ASI Naresh Kumar of PS S.P. Badli and FSL team Rohini and Ld. MM Sh. Sachin Gupta was also present in the hospital. He has further stated that they saw the dead body of UTP Pawan and found injury marks on the neck of the SC No. 619/2018 Page No. 24 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli dead body and he took the photographs of the dead body from different angles and SI Manish tried his best to lift the finger prints but no finger prints could be lifted and the FSL team also took the photographs of the dead body and thereafter, he along with mobile crime team officials, ld. MM, FSL team and police staff of PS S.P. Badli reached at Barrack no. 107, Ward no. 2, Rohini Jail where ASI Ram Kumar inspected the scene of crime and he took the photographs of the scene of crime from different angles at the instance of ASI Ram Kumar and they conducted the proceedings from 9 AM to 2.30 PM on both the places i.e. BSA hospital and scene of crime and he took 75 photographs (colly.) in the hospital and also in Rohini Jail Barrack no. 107 ward no. 2 which were Ex. PW23/P-36 to PW23/P-110.
45) During cross-examination conducted by Ld. Amicus Curiae for accused, PW-23 denied the suggestion that he has not noticed any injury on the neck of the deceased. He further deposed that he did not notice any bottle of roohafza at the scene of crime.
46) Shri Kalu S/o Sh. Kashi Ram was examined as PW-24 and he has stated that on 21.05.2018, he was in Rohini Jail in case registered at PS Nizamuddin, Delhi and in the intervening night of 21-22.05.2018 he was in Barrack no. 107 ward no. 2 Rohini Jail. He has further stated that there were 31 inmates in the said Barrack and after counting of the inmates they were put in Barrack no. 107 and at about 10.45-11 pm, he went to his bed and sleep. He has further stated that at about 2.30 am, he was woken up by inmate Kuber SC No. 619/2018 Page No. 25 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli who informed me that Kishan S/o Papu had given beating to UTP Pawan by kicks and fists blow and Kuber also informed him that Kishan had put his foot on the neck of Pawan and after giving beatings to Pawan, Kishan went to his bed. He has further stated that Kuber also informed him that a quarrel took place because Kishan asked Pawan to prepare Roohafza for him. He has further stated that he had checked Pawan who was unconscious and after seeing the condition of UTP Pawan, he raised a noise and called the Head Warden from the gate of Barrack no. 107 and he also pressed the bell of the jail. He has further stated that the Warden and other staff reached in our Barrack and checked Pawan and thereafter, he left the Barrack and again reach in the Barrack with Doctor who examined and checked Pawan and UTP Pawan was taken from the Barrack on the stature by the jail staff and later on he came to know that Pawan had expired. He has further stated that on 13.07.2018, he was produced before Ld. MM where his statement already Ex. PW8/P-18 was recorded in a room which bears his signature at point B. This witness has correctly identified accused Kishan @ Chunda who was present in the court.
47) During cross-examination, PW-24 has deposed that it is correct that I had not seen the incident. He has further deposed that all the inmates in the Barrack woke up. After the incident, for some time I was in jail and stayed in the same Barrack. He has denied the suggestions given to him as wrong.
SC No. 619/2018 Page No. 26 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 48) Sh. Vakil S/o Mohd. Aziz was examined as PW-25 and he has
stated that on 23.05.2018, a police official of PS Adarsh Nagar reached at his abovesaid shop and requested me for videography and photography of the postmortem proceedings at MAMC and he accompanied the said police official and reached at mortuary of MAMC. He has further stated that the dead body was identified by the relatives of the deceased and he was called inside the mortuary and he took photographs and conducted videography of the postmortem proceedings of a male dead body. He has further stated that the ld. MM conducted his proceedings and thereafter, the dead body was handed over to the relatives of the deceased and he took the photographs and conducted videography and on 31.05.2018, he had handed over two sets of 20 photographs and two CDs to the IO which were seized by the IO vide seizure memo Ex. PW25/P-111 bearing his signature at point A. He has further submitted that on 01.06.2018, he gave certificate u/s 65B of the Evidence Act which is Ex. PW25/P-112 bearing his signature at point A and 20 photographs are Ex. PW25/P-113 to PW25/P-132 and CD containing the videography done at the time of postmortem was Ex. PW25/P-133.
49) During cross-examination by the Ld. Amicus Curiae he denied the suggestion that he has not taken any photographs and prepared videography and Ex. PW25/P-112 is a false document.
SC No. 619/2018 Page No. 27 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 50) WHC Mamta Dabas, No. 1856/RD was examined PW-26 and she
has stated that on 22.05.2018, at 4 am an information was received through Ct. Sukhram from BSA Hospital that Pawan S/o Vijay Nath of Rohini jail no. 10, was admitted in the hospital vide MLC 6983/18 by ASI Kishan of 3 rd battalion and Pawan was declared brought dead and ASI Naresh alongwith Ct. Praveen left for hospital for taking necessary action and the information was recorded vide DD no. 5A Ex. PW26/P-134 (OSR) which was recorded by ASI Jai Bhagwan and the same was handed over to ASI Naresh. She has further stated that on 22.05.2018, he was working as Duty Officer from 8 am to 4 pm and on that day at about 2.45 pm, SHO S.P. Badli handed over her a rukka for registration of FIR. She has further stated that she received rukka vide DD no. 12A and went to the room of CCTNS for feeding the contents of rukka through computer operator Ct. Darshan who fed the contents of rukka in the computer and computer generated copy of FIR is Ex. PW26/P-135 (OSR) bearing her signature at point A and she made endorsement on the rukka Ex. PW26/P-136 bearing her signature at point A and copy of FIR and original rukka were handed over to Ct. Jitender for presenting the same to Inspector Ved Prakash as per the order of SHO and copies of FIR were handed over to Ct. Subhash for delivering the same to Joint C.P., DCP, Addl. DCP, ACP and Ilaqua Magistrate, thereafter. Ct. Subhash left the PS on a motorcycle number DL1S Z 5159. She has further stated that she gave certificate u/s 65 B Evidence Act Ex. PW26/P-137 bearing her signature at point A and she closed recording FIR vide DD no. 13A (OSR) which is Ex. PW26/P-138 bearing her signature at point SC No. 619/2018 Page No. 28 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli A. No cross-examination was conducted by the ld. Counsel for the accused.
51) Ct. Subhash, No. 1359/RD was examined PW-27 and he has stated that on 22.05.2018, he was called by the DO who handed over me copies of FIR for delivering the same to Joint C.P., DCP, Addl. DCP, ACP and Ilaqua Magistrate and at about 3.45 pm he left the PS on a motorcycle number DL1S Z 5159 and after delivering the copies of FIR to the above named officers, he returned to the PS at about 9.45 pm.
52) During cross-examination conducted by ld. Proxy counsel for ld. Amicus Curie for the accused, PW-27 has deposed that he does not know the DD number of his departure and arrival in the PS and no entries made by him in the DD register. He further deposed that he had handed over the copies of FIR to the SO and operator in the office of Joint CP, DCP and Addl. DCP but he does not know the names of SO and operator of abovesaid officials.
53) HC Naresh, No. 487/RD was examined as PW-28 and he has stated that on 22.05.2018, he was posted at PS S.P. Badli as MHC(M) and on that day, ASI Naresh deposited with him two pulandas duly sealed with the seal of NK and casualty govt. Delhi Dr. BSAH and copy of seizure memos and he made entry in register no. 19 Ex. PW28/P-139 at serial no. 5043 (OSR). He has further stated that on 23.05.2018, Inspector Ved Prakash deposited with SC No. 619/2018 Page No. 29 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli him three pulandas duly sealed alongwith three sample seal and copy of seizure memo and he made entry in register no. 19 Ex. PW28/P-140 at serial no. 5047 (OSR) (running into two pages). He has further stated that on 04.06.2018 on the direction of SHO and IO, he had handed over one duly sealed wooden box and sample seal with unsealed envelope to Ct. Virender for depositing the same with the FSL vide RC no. 219/21/18 Ex. PW28/P-141 (OSR) and Ct. Virender deposited the same and obtained the acknowledgement of FSL Ex. PW28/P-142 and copy of RC which he handed over the same to him on his return to the PS and he made entry in register no. 19 in this regard. He has further stated that on 05.06.2018 on the direction of SHO and IO, he handed over three duly sealed parcels and three sample seals to HC Praveen for depositing the same with the FSL vide RC no. 221/21/18 Ex. PW28/P-143 (OSR) and HC Praveen deposited the same and obtained the acknowledgement of FSL Ex. PW28/P-144 and copy of RC which he handed over the same to him on his return to the PS and he made entry in register no. 19 in this regard. He has further stated that during the period, exhibits and case property remained in his possession no one tampered the same in any manner.
54) During cross-examination conducted by ld. Proxy counsel for ld. Amicus Curie for the accused, PW-28 denied the suggestions given to him.
SC No. 619/2018 Page No. 30 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 55) ASI Naresh Kumar No. 802/RD was examined as PW-29 and he
has stated that on 22.05.2018 he was posted at PS S.P. Badli and on that day, he received DD No. 5A already Ex. PW26/P-134 regarding Pawan declared brought dead in BSA Hospital and he was admitted by ASI Sri Kishan, he alongwith HC Praveen reached in BSA Hospital where he collected the MLC of UTP Pawan and during enquiry he came to know that UTP Pawan was in Rohini Jail ward no. 2 Barrack no. 107 and he left HC Praveen in the hospital and went to the house of ld. MM Sh. Sachin Gupta at Ashok Vihar Delhi. He has further stated that he had informed ld. MM and other senior officers of police regarding death of UTP Pawan in Rohini Jail and gave written application to ld. MM for conducting proceedings. He has further stated that he alongwith ld. MM Sh. Sachin Gupta reached at BSA Hospital where crime team and FSL team were called and they reached there and inspected the dead body. He has further stated that photographer, crime mobile team and of FSL team took the photographs of the dead body. He has further stated that finger print expert SI Manish tried his best to lift finger prints from the neck of dead body but the same could not be lifted. He has further stated that on the direction of Ld. MM, the Doctor of BSA hospital got seized the clothes of deceased which were handed over him in one sealed carton box which he seized vide seizure memo Ex. PW29/P-145 bearing his signature at point A. He has further stated that he prepared application for preserving the dead body in the mortuary of BSA hospital. He has further stated that ld. MM directed for constituting a board of Doctors for conducting postmortem on the dead body SC No. 619/2018 Page No. 31 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli and a letter was sent to Ministry of Health in this regard and he alongwith ld. MM, crime team and FSL team left for Rohini jail where they reached in ward no. 2 at Barrack no. 107 where crime team officials and FSL team conducted inspection and photographers of crime team and FSL team took photographs. He has further stated that on the direction of ld. MM, the beddings and clothes lying at the place where deceased Pawan was beaten, were taken in possession i.e. three multicolour bedsheets, two multicolour blankets and bottle of Humdard Davakhana less than half of its capacity were taken in possession which were put in a bag and the mouth of the bottle was wrapped with a piece of cloth and said bag was sealed with the seal of NK and taken in possession vide seizure memo already Ex. PW15/P-33 bearing his signature at point B and at the same time IO Inspector Ved Prakash reached there and made investigation from crime mobile team officials and officials of FSL team. He has further stated that on 23.05.2018, on the direction of IO and SHO, he went to BSA hospital mortuary where he had handed over the letter of Govt. of NCT for conducting postmortem on the body of deceased at MAMC mortuary. He has further stated that the dead body of UTP Pawan was taken to MAMC New Delhi where he met ld. MM Sachin Gupta who conducted proceedings u/s 176 Cr.P.C. He has further stated that the dead body was identified by the relatives of deceased and handed over to them. He has further stated that private photographer was called for videography and photography of postmortem proceedings. He has further stated that after postmortem, the hospital/Doctors handed over wooden box, plastic container, envelope duly sealed alongwith SC No. 619/2018 Page No. 32 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli three sample seals to Inspector Ved Prakash who seized the same vide seizure memo Ex. PW29/P-146 bearing his signature at point A. He has further stated that he can identify the case property if shown to him, thereafter, MHC(M) has produced one bag duly sealed with the seal of court which was opened and found containing three multi colour bedsheets, two multi colour blankets and a bottle of 750 ml. having label of Humdard Davakhana which are shown to him and he correctly identified the same seized at Rohini Jail Barrack no. 107 as these articles belong to UTP Pawan, same were already Ex. MO-1 (Colly).
56) During cross-examination conducted by ld. Amicus for accused, PW-29 has deposed that it is correct that no inmates were asked to join the investigation at the time of seizing of bedding and bottle. He has further deposed that no crime team official and LD.MM were asked to sign the seizure memo of aforesaid bedding and bottle. Suggestions given to him are denied as wrong.
57) Ct. Jitender no. 2300/Security, Parliament House was examined as PW-30 and he has stated that on 22.05.2018, at about 3.45 pm DO handed over me the copy of FIR of the present case with original rukka for presenting the same to Inspector Ved Prakash in Rohini Jail and he left to the Rohini jail and handed over the same to the IO at 8 PM.
58) During cross-examination conducted by ld. Proxy counsel for ld.
SC No. 619/2018 Page No. 33 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli
counsel Amicus Curie for the accused, PW-30 has denied the suggestions as wrong.
59) Ct. Virender no. 2183/RD was examined as PW-31 and he has deposed that on 04.06.2018 on the direction of SHO and IO, he received from MHC(M) one duly sealed wooden box, sample seal with unsealed envelope for depositing the same with the FSL vide RC no. 219/21/18 already Ex. PW28/P- 141 and he deposited the same and obtained the acknowledgement of FSL already Ex. PW28/P-142 and copy of RC of the same handed over to MHC(M) on his return to the PS. He has further stated that during the period, case property remained in his possession, no one tampered the same in any manner.
60) During cross-examination conducted by ld. Proxy counsel for ld.counsel Amicus Curie for the accused, PW-31 has denied the suggestions as wrong.
61) HC Praveen Kumar No. 1132/RD was examined as PW-32 and he has stated that on 22.05.2018 he was posted at PS S.P. Badli and on that day, on receipt of DD No. 5A already Ex. PW26/P-134 regarding Pawan declared brought dead in BSA Hospital and he was admitted by ASI Sri Kishan, he alongwith ASI Naresh reached in BSA Hospital where he collected the MLC of UTP Pawan and during enquiry we came to know that UTP Pawan was in SC No. 619/2018 Page No. 34 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli Rohini Jail ward no. 2 Barrack no. 107 and he remained in the hospital and ASI Naresh left the hospital. He has further stated that ASI Naresh alongwith ld. MM Sh. Sachin Gupta reached at BSA Hospital where crime team and FSL team were called and they reached there who inspected the dead body. He has further submitted that photographer, crime mobile team and of FSL team took the photographs of the dead body. He has further stated that finger print expert SI Manish tried his best to lift finger prints from the neck of dead body but the same could not be lifted. He has further stated that on the direction of Ld. MM the Doctor of BSA hospital got seized the clothes of deceased which were handed over to ASI Naresh one sealed carton box which he seized vide seizure memo already Ex. PW29/P-145 bearing his signature at point B. He has further stated that ASI Naresh prepared application for preserving the dead body in the mortuary of BSA hospital through him. He has further stated that Ld. MM directed for constituting a board of Doctors for conducting postmortem on the dead body and a letter was sent to Ministry of Health in this regard. He has further stated that he alongwith ASI Nareash, ld. MM, crime team and FSL team left for Rohini jail where we reached in ward no. 2 at Barrack no. 107 where crime team officials and FSL team conducted inspection. He has further stated that on the direction of ld. MM the beddings and clothes lying at the place where deceased Pawan was beaten, were taken in possession i.e. three multicolour bedsheets, two multicolour blankets and bottle of Humdard Davakhana less than half of its capacity were taken in possession and put in a bag and the mouth of the bottle was wrapped with a piece of cloth, the said bag SC No. 619/2018 Page No. 35 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli was sealed with the seal of NK and taken in possession vide seizure memo already Ex. PW15/P-33 bearing his signature at point C and the same time IO Inspector Ved Prakash reached there and made investigation from crime mobile team officials and officials of FSL team. He has further stated that on 05.06.2018 on the direction of SHO and IO, he received from MHC(M) three duly sealed parcels and three sample seals for depositing the same with the FSL vide RC no. 221/21/18 already Ex. PW28/P-143 and he deposited the same and obtained the acknowledgement of FSL already Ex. PW28/P-144 and copy of RC which he had handed over to MHC(M) on his return to the PS. He has further stated that on 07.06.2018, on the direction of IO/SHO he had received one sealed envelope duly sealed of VP, FSL form from MHC(M) with documents for depositing the same in FSL vide RC no. 390/21/18 and he had deposited the same and obtained the acknowledgement of FSL and copy of RC which he handed over the same to MHC(M) on his return to the PS. He has further stated that during the period, exhibits and case property remained in his possession no one tampered the same in any manner. He has further stated that he can identify the case property if shown to him and MHC(M) has produced three multi colour bedsheets, two multi colour blankets and a bottle of 750 ml. having label of Humdard Davakhana which are shown to the witness who correctly identified the same seized at Rohini Jail Barrack no. 107 as these articles belong to UTP Pawan and correctly identifies the same which are already Ex. MO-1 (Colly).
SC No. 619/2018 Page No. 36 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 62) During cross-examination conducted by Ld. Amicus for accused,
PW-32 has denied all the suggestions given to him as wrong.
63) Sh. Khazanchi Lal Garg son of Sh. Puran Chand was examined as PW-33 and he has stated that on 21.05.18 he was in Rohini Jail, Barrack no.107, Ward no.2 in a case registered against him at PS Swaroop Nagar and on the same night at about 6.30 PM after counting of the inmates they were sent in the barrack no.107 and at about 10.30 PM he was sleeping on his bedding and at about 2 AM on dt.22.05.18 he woke up due to the sound of T.V. FM and he went up to the T.V.and pulled out the wire connected with T.V in order to close the FM TV, thereafter, he went to toilet. He has further stated that Krishan was beating Pawan as Pawan had not prepared rooafjha for Krishan and in the jail language those who are big criminals they are known as "bhai log" and shooter are known those persons, who used to serve "bhai log". He has further stated that Pawan was a shooter and used to serve Krishan by washing his utensils etc. when Krishan was beating to pawan, who said "mai poora din tera kaam karta hun, ab raat ke do baje hai ab mai kaam nahi karunga kuanki mujhe bhi sona hai, ab tu jitna chahe maar le, ab mai rooafjha bhi nahi banunga". He has further stated that Krishan was continuously giving beating to Pawan with kicks and fist blows and was hitting with his foot to Pawan and continuously gave beating to the Pawan till he become unconscious. He has further stated that all the inmates woke up and someone presses the bell and after 2-3 minutes jail warden Sunil Balhara SC No. 619/2018 Page No. 37 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli reached there. He has further stated that in those days the jail staff were distributing food for inmates who observe Roza and Sunil warden informed that he has no key with him and he is going to office to bring the key and the hospital staff as he informed to him that Pawan is lying unconscious. He further stated hat we sprinkled water on the face of Pawan in order to wake him and after some time doctor and other staff entered the barrack and check the Pawan and later on Warden informed us that Pawan had expired. He has further stated that Police also visited their barrack and made inquiries from him and he gave statement to the police. He has further stated that on 13.07.18 he was produced before Judge Sahab where he gave statement which he had deposed and he signed his statement already Ex.PW-8/P-15 bearing his signature at point B and he correctly identified accused Krishan who present in the court on that day.
64) During cross-examination conducted by ld. Amicus Curie for the accused, PW-33 has deposed that he was not confirmed for how much time he remained in the aforesaid barrack after the incident voluntarily it may be one month or more than one month. He has further deposed that 'Mai apne pichle byan per kayam hun'. He has further deposed that he has cordial relation with Krishan Kumar, Kuber, Pappu. He has further stated that at the time of incident we did not raise alarm/bell to save Pawan. Vol. 'Aisa kisi ko andesha nahi tha ki voh maar dega ya vo mer jayega, bell bajane per warden aata hai aur gussa hota hai ko chhoti moti baat per bell mat bajaya karo'. Suggestions SC No. 619/2018 Page No. 38 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli given to this witness were denied as wrong.
65) HC Naresh Kumar no.156, RD was examined as PW-34 and he has stated that on 07.06.18 he was posted at PS SP Badli as record clerk and on that day on the direction of SHO and IO, he had handed over 17 pages of FSL form and one sealed envelope duly sealed with the seal of VP to HC Praveen for depositing the same in FSL, Rohini vide RC no.390/21/18 which was Ex.PW-34/P-147 bearing his signature at point A. HC Praveen deposited the same in FSL and obtained the acknowledgment of FSL Ex.PW-34/P-148 and copy of road certificate which he handed over the same to him on his return to PS and during the period the case property and documents remained in his possession no one tampered the same in any manner. He has also brought the previous involvement of accused Krishan son of Sh. Pappu, copy of the same was Ex.PW-34/P-149 bearing signature of HC Jagdish/MHC(R) at point B.
66) During cross-examination conducted by ld. Amicus Curie for the accused, PW-34 has denied all the suggestions as wrong.
67) Ct. Jitender No.1616, RD was examined as PW-35 and he has stated that on 23.05.18 he joined the investigation with Inspector Ved Prakash and reached at court no.319 Rohini Court complex where accused Krishan @ Krishan @ Chunda was produced before Ld.MM. He has further stated that IO SC No. 619/2018 Page No. 39 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli moved an application for interrogation and arrest of the accused which was allowed and accused was interrogated and arrested vide arrest memo Ex.PW- 35/P-150, personal search of accused was conducted vide memo Ex.PW-35/P- 151 and accused made disclosure statement Ex.PW-35/P-152 bearing his signatures on them at point A. He has further stated that accused was taken on police remand and he was got medically examined and interrogated by the IO. This witness correctly identified the accused.
68) During cross-examination conducted by ld. Amicus for accused, PW-35 has denied all the suggestions given to him as wrong.
69) Shri Manoj Kumar, Jr. Forensic/ Chemical Examiner (Biology), FSL, Rohini, Delhi was examined PW-36 and he has stated that on 05.06.2018, three sealed parcels were received in FSL and seals were intact and tallied with the sample seal. He has further stated that he has conducted the biological and DNA examination on the exhibits and gave his detailed report Ex. PW36/P- 153 bearing his signature at points A and B. No cross-examination was conducted by the ld. Amicus Curie for the accused.
70) Mrs. Priyanka Kumari, Supdt. Central Jail-10, Rohini was examined as PW-37 and she deposed that with reference to letter no.4744 dt.22.11.18 in case FIR no.433/18 dt.22.05.18 under Sec.302/506 IPC PS SP Badli, she has submitted the report with respect to the network of CCTV SC No. 619/2018 Page No. 40 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli cameras installed. She has further stated that 31 cameras were installed in first phase, 23 cameras were installed in second phase and 9 cameras were installed in third phase and location chart of all the cameras installed in Rohini Jail was Ex.PW-37/P-154 running into two pages having her signature and seal at point A on each page.
71) During cross-examination conducted by Ld. Amicus for accused, PW-37 has denied all the suggestions given to her as wrong.
72) HC Jag Parvesh no.7837 was examined as PW-38 and he has stated that in the intervening night of 21/22.05.18 he was performing duty from 8 PM to 8 AM. At about 3.25/30 AM duty officer of Rohini Jail Complex informed him about emergency and he along with ASI Krishan Kumar went to deodhy where one UTP Pawan was brought in jail ambulance for taking him to BSA hospital and he along with ASI krishan Kumar also boarded the said jail ambulance and reached at BSA hospital. He has further stated that in the said ambulance Dr. Jogender Malik and nursing Asst.Bablu were also present with UTP Pawan, who was having oxygen mask on his mouth and he was admitted in the hospital and Doctors of BSA hospital examined and checked UTP Pawan and declared him dead.
73) During cross-examination conducted by Ld. Amicus Curie for accused, PW-38 has deposed that it is correct that UTP Pawan was SC No. 619/2018 Page No. 41 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli unconscious in the ambulance. No further cross was conducted by the ld. Amicus Curie for the accused.
74) Inspector Ved Prakash, No.D-1185 RD was examined as PW-39 and he has deposed that on 22.05.18 he was posted at PS SP Badli as Inspector investigation and on that day at about 3.45 PM he was present in Rohini Jail complex regarding death of UTP Pawan. He has further stated that in the jail complex he had met ASI Naresh Kumar and other staff of the police and he also met Ld. MM Shri Sachin Gupta, who conducted the proceeding. He has further stated that ASI Naresh Kumar briefed him the fact of the case and cime team officials and FSL team officials were also present there. He has further stated that PW30/Ct. Jitender handed over me the copy of FIR and original rukka for further investigation. He has further stated that in the Rohini jail Dy.Supdt. Jagdish Singh briefed me the facts of the case and thereafter they all went inside ward no.2, barrack no.107 where the offence took place and he inspected the scene of crime and prepared site plan Ex.PW-39/P-155 bearing his signature at point A at the instance of PW1/Dy.Supdt. Jagdish Singh and recorded statement of Jagdish Singh and he also recorded statement of Niranjan Singh Dahiya, Asst.Supdt. Rohini Jail, Warden Parvinder, Head Warden Anil Yadav, Warder Sunil Balhara, ASI Kishan Kumar, HC Jag Parvesh, UTP Pappu, Kamlesh @ Kamal, Krishan Kumar, Khazanchi Lal, Kalu @ Vijay, Kuber Jatav under Sec.161 Cr.PC. He has further stated that the accused Krishan @ Chunda was produced before him and he interrogated him. He has SC No. 619/2018 Page No. 42 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli further stated that he prepared a letter Ex.PW-39/P-156 requesting Supdt. Jail to produce the accused Krishan before Ld. MM concern, Rohini Court on 23.05.18. He has further stated that he along with other staff of PS SP Badli returned to the PS. Case property was deposited with MHC(M) and he recorded statement of witnesses i.e. Ct. Jitender, Ct. Subhash, ASI Naresh, HC Praveen and Crime team officials. He has further stated that on 23.05.18 he along with Ct. Jitender went to MAMC Mortuary where the dead body of UTP Pawan was brought by ASI Naresh. He has further stated that Ld. MM Sh. Sachin Gupta was also present at the mortuary where the relatives of deceased identified the dead body of UTP Pawan and ASI Naresh handed over the letter of Govt. of NCT for conducting postmortem on the body of deceased at MAMC mortuary. He has further stated that ld. MM Sachin Gupta conducted proceedings u/s 176 Cr.P.C. He has further stated that the private photographer namely Vakil was called for videography and photography of postmortem proceedings and postmortem was conducted and same was photographed and videographed by him. He has further stated that after postmortem, the hospital/Doctors handed over wooden box, plastic container, envelope duly sealed alongwith three sample seals to him which he seized vide seizure memo already Ex. PW29/P-146 bearing his signature at point B. He has further stated that dead body was handed over to relative of deceased vide memo already Ex.PW-13/P-31 bearing his signature at point B and he recorded statement of Vishnu and Vinay, who identified the dead body of Pawan and they returned to PS and he deposited the case property with MHC(M). He has SC No. 619/2018 Page No. 43 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli further stated that he recorded statements of witnesses. He has further stated that on the same day he along with Ct. Jitender reached at court no.319 Rohini Court complex where accused Krishan @ Krishan @ Chunda was produced before Ld.MM and moved an application for interrogation and arrest of the accused which was allowed and accused was interrogated and arrested vide arrest memo already Ex.PW-35/P-150, personal search of accused was conducted vide memo Ex.PW-35/P-151 and accused made disclosure statement already Ex.PW-35/P-152 bearing his signature at point B on the all the documents. He has further stated that accused was taken on police remand and was got medically examined and interrogated by him and he recorded statement of witnesses ASI Naresh Kumar and Ct. Jitender. He has further stated that on 31.05.18 private photographer Vakil handed over him two sets of photographs and CD which he seized vide seizure memo Ex.PW-25/P- 111 bearing his signature at point B. He has further stated that witness Vakil gave certificate under Sec.65B of Evidence Act which he placed the same on record. He has further stated that on 01.06.18, he collected post mortem report and report of crime team which he placed on record. He has further stated that on 04.06.18, he sent Ct. Virender to FSL for depositing the exhibits; on 05.06.18, he sent HC Praveen to FSL for depositing the exhibits; on 07.06.18, he sent HC Praveen to FSL for depositing the exhibits; on 09.07.18, Ct. Naveen accompanied him to Rohini Jail and prepared rough notes and took measurement for scaled site plan which was placed on record; on 11.07.18, he moved application for production of UTP Khazanchi Lal Garg and Kalu @ Vijay SC No. 619/2018 Page No. 44 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli in the court; on 13.07.18, UTP Khazanchi Lal Garg and Kalu appeared in the court and he moved an application already Ex.PW-8/P-13 for recording of statement under Sec.164 Cr.PC and marked to Link MM. Ld.Link MM Ms. Richa Manchanda recorded statement of both the witnesses and moved applications Ex.PW-8/P-20 and P-21 for obtaining the copies of statement under Sec.164 Cr.PC which were allowed and on the same day he moved an application for production of UTP Kamlesh and Kishan Kumar which was listed for 16.07.2018 and both UTP appeared in the court and he moved an application already Ex.PW-9/P-22 for recording of statement under Sec.164 Cr.PC which was marked to Link MM, Ld.Link MM Ms. Sadhika Jalan recorded statements of both the witnesses and he moved an application Ex.PW-9/P-27 for obtaining the copies of statements under Sec.164 Cr.PC which was allowed; on 26.07.2018, he obtained the previous criminal record of accused Kishan which was supplied to him on information sheet Ex.PW39/P-157 & ExPW39/P- 158 respectively. He has further stated that he had collected the FSL results and placed the same on record and collected the FSL finger print examination report Ex.PW39/P-159 (Colly.) and placed the same on record. He has further stated that on 08.08.2018, he served notice under Sec. 91 Cr.P.C. to Deputy Superintendent, Rohini Jail already Ex.PW4/P-5 for supplying the necessary documents and information which were replied vide letter already Ex.PW4/P-6 along with documents Ex.PW4/P-7, Ex.PW4/P-8, Ex.PW4/P-9 & Ex.PW4/P-10 (Colly). He has further stated that the photographer of Crime Mobile Team Ct. Vikas gave certificate under Sec. 65 of Evidence Act Ex.PW39/P-160 with SC No. 619/2018 Page No. 45 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli regard to Computer System used I printing etc. and photograph taken by digital camera bearing the signature of Ct. Vikas at point A and he identified the signature of Ct. Vikas. He has further stated that on 22.05.2018, Inspt. Akshay Kumar, SHO S.P. Badli made endorsement Ex.PW39/P-161 bearing his signature at point A on typed complaint of Deputy superintendent Jagdish Singh of Jail no. 10, Rohini, Delhi and Inspt. Akshay Kumar gave the rukka to Duty Officer for registration of FIR under Sec. 302 IPC and investigation was entrusted to him and he identified the writing and signature of Insp. Akashay Kumar with whom he was working at that time. He has further stated that he prepared the chargesheet against the accused which was forwarded by the SHO and sent to court by the ACP concerned. He has further stated that on 26.11.2018, he moved an application by which he filed the location of CCTV camera installed in Rohini Jail which is already Ex.PW37/P-154. He has further stated that he has recorded the statements of all the witnesses. PW-39 has correctly identified the accused.
75) During cross-examination conducted by ld. Amicus Curiae for accused, PW-39 stated that on receipt of information regarding DD no.5A, he reached at Rohini Jail and he has not lodged any separate DD entry when he left the Police Station for Rohini Jail. Vol. As the information was already recorded in DD no.5A. He further deposed that he reached at Rohini Jail at about 5-5:30AM and met the staff of jail authorities, however, no police official of PS S.P. Badli were present in the jail and he made enquiry from the Jail SC No. 619/2018 Page No. 46 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli Officials regarding the incident, however, has not recorded their statement at that time and has not made enquiry from accused and made enquiry to other UTPs of ward no.2 barrack no.107. He has further deposed that during the enquiry from other UTPs, he had not prepared any document regarding the same and in the morning, he made enquiry from 10-15 UTPs of the said barrack and later on after registration of the case, he made enquiry from all the UTPs of the said barrack. He has further deposed that after registration of the FIR, he made enquiry from the accused, however, he had not prepared any document regarding the enquiry made to the accused. It is wrong to suggest that I did not prepare any document regarding the same as accused was not involved in the crime or that nothing came in the enquiry made to the accused. After registration of the case, I made enquiry from accused while sitting in the office of Jail Authority. After enquiry, I did not formally arrest the accused. Vol. I gave written request to the Jail Authorities to produce the accused before the court concerned for 23.05.2018. Prior to giving written request to Jail Authorities for producing the accused before the court concerned, I recorded the statement of UTPs and Jail Authorities. I made enquiry from other UTPs and also recorded their statement in the office of Deputy Jail Superintendent. The Deputy Superintendent of Rohini Jail was present in his office during the investigation. However, he was busy in his official work.
76) Inspector Akshey Kumar No.DI-457 was examined as PW-40 and he has stated that on 22.05.18, he was posted at PS SP Badli and on that day SC No. 619/2018 Page No. 47 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli one written intimation regarding death of accused Pawan son of Vijay Nath i.e. under trial prisoner in FIR no.130/18 under Sec.380/511/34 IPC PS Begum Pur addressed to SHO PS SP Badli was received and he had gone through the contents of the said intimation which is already Ex.PW-1/P-1 and he made endorsement which was already Ex.PW-39/P-161 and handed over the said intimation with his endorsement to duty officer for registration of FIR with direction for handing over the investigation to Inspector Ved Prakash.
77) During cross-examination conducted by Ld. Amicus Curie for accused, PW-40 has denied the suggestion that the false FIR was registered as wrong.
78) Thereafter, prosecution evidence was closed. Statement of accused was recorded under Section 313 Cr.PC wherein he denied the entire evidence and stated that he has been falsely implicated and he chose not to lead defence evidence. Thereafter, the case was fixed for final arguments.
79) I heard and considered the submissions of Ld. Addl. PP for the State, Ld. Amicus Curie for the accused and perused the entire record.
80) It is submitted by the ld. Counsel for the accused that PW2- Kamlesh (involved in murder case), PW3-Kuber Jatav (involved in Section 20 of NDPS Act), PW6-Pappu (involved in murder case), PW7-Krishan Kumar SC No. 619/2018 Page No. 48 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli (involved in kidnapping and rape cases), PW24-Kalu (involved in two cases of robbery) and PW33-Khajanchi Lal Garg (involved in rape and POSCO Act and also in 9 D. Excise Act) are alleged eye witnesses of the incident and the prosecution case is based on the statements of these witnesses and since they are involved in criminal activities and their conducts and characters are doubtful, it can not be said that they are law abiding citizen and their deposition should not be considered as trustworthy. On the other hand, ld. Addl. PP for the State submits that the offence involved in the present case, has been committed in Barrack no. 107 and ward No. 2 in Rohini Jail, therefore, eye witnesses of the case are under trial prisoners involved in criminal cases but testimonies of witnesses as pointed out by the ld. Counsel for the accused can not be rejected on this ground.
81) I considered the submissions of ld. Counsel for the accused and ld. Addl. PP for the State as submitted above. Since the offecne has been committed in Barack No. 107 and ward No. 2 in Rohini Jail where only under trial prisoners could have been the eye witnesses in the case, I agree with the submissions of ld. Addl. PP for the State that the testimonies of PW2-Kamlesh, PW3-Kuber Jatav, PW6-Pappu, PW7-Krishan Kumar, PW24-Kalu and PW33- Khajanchi Lal Garg can not be rejected on the ground that they are under trial prisoners. Ld. Counsel for the accused has not cited any case-law in support of his arguments that the testimonies of PW2-Kamlesh, PW3-Kuber Jatav, PW6-Pappu, PW7-Krishan Kumar, PW24-Kalu and PW33-Khajanchi Lal Garg SC No. 619/2018 Page No. 49 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli can be rejected on the ground that they are involved in criminal cases or that the testimonies of these witnesses who are involved in criminal cases, can not be taken to be as trustworthy. Ld. Counsel for the accused submits that the testimony of PW-2 be read in evidence to the effect that he had not seen the accused beating the deceased Pawan and PW-33 also stated that he has not seen the accused causing beatings to the deceased. If contention of the ld. Counsel for the accused is accepted as above, how the testimonies of PW-2 and PW-33 can be read in evidence to the effect that they have not seen accused giving beatings to the deceased because they are under trial prisoners.
82) Ld. Counsel for the accused has submitted that PW6-Pappu, during his cross-examination, has stated that before examination, he met IO and IO told him about the date of incident etc. before lunch and after lunch he has stated that his statement regarding present case recorded under Section 161 Cr.P.C. on 21-05-2018 and he had gone through the same, although he is illiterate. It is further submitted that PW33- Khajanchi Lal Garg also admitted during his cross-examination that he was tutored by IO-Ved Prakash and his statement under Section 161 Cr.P.C. was read over to him and he deposed accordingly. It is further submitted that the credibility of these witnesses who were tutored by the IO has lost and their testimonies should not be accepted against the accused.
SC No. 619/2018 Page No. 50 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 83) I have gone through the cross-examination of PW-6 recorded on
20-11-2018. PW6-Pappu has stated during his cross-examination recorded before lunch that "I had gone through my statement recorded by police as I am illiterate and police recorded my statement as told by me". I am of the view that it is a clerical mistake when witness states that "I am illiterate", how he could have gone through his statement which was recorded by the police under Section 161 Cr.P.C. and he would have stated that "I have not gone through my statement" because he is illiterate and can not read his statement. I am of the view that if IO and PW-6 had met and IO told him about the date of incident, the testimony of PW-6 can not be rejected only on this ground. PW-6 has categorically stated that "my statement was not read over to me". This shows that IO had not tutored him about his testimony. He has categorically denied as wrong the suggestion put to him by the ld. Counsel for the accused that he was tutored by the IO and by Dy. Jail Superintendent.
84) I have gone through the testimony of PW33-Khajanchi Lal Garg recorded during his cross-examination and it is observed that PW-33 has stated that "I met IO Ved Prakash in the morning hours at about 10 AM today inside the court room and my statement was read over to me by the IO Inspector Ved Prakash". Ld. Counsel for the accused has not cited any case-law in support of his arguments that if the statement recorded under Section 161 Cr.P.C. is readover to the witness by the IO, his entire testimony SC No. 619/2018 Page No. 51 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli can not be read in evidence only on this ground. Therefore, I do not agree with the submissions of ld. Counsel for the accused in this regard.
85) It is submitted by the ld. Counsel for the accused that PW3-Kuber Jatav had admitted that there was camera inside the barrack and similarly, PW4-Dy. Supdt. Balwan Singh also confirmed the same fact that there was CCTV camera in the barrack but it was not functioning. It is further submitted that in contrary to the version of these two witnesses, IO without obtaining the permission of the Hon'ble Court for further investigation about the CCTV camera in the said barrack, he got examined PW37-Priyanka with her false report that there was no CCTV camera in the place of incident and it shows that to save the real culprits, IO in connivance with Jail Authority destroyed the evidence of CCTV camera, present in the place of incident at the time of occurrence.
86) I have gone through the evidence of PW3-Kuber Jatav and it is observed that during his cross-examination he has stated that "there was CCTV camera inside the barrack". In the reply Ex. PW-6/P-6 given by PW4- Dy. Suptd. Balwan Singh in response to notice under Section 91 of Cr.P.C. it is mentioned that no CCTV camera was installed in barrack No. 107 Ward No. 2. PW37-Priyanka Kumari, Suptd. Central Jail-10, Rohini, Delhi has been examined in the court and "no objection" has been raised by the ld. Counsel for the accused at the time of her examination rather she was cross-examined by SC No. 619/2018 Page No. 52 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli ld. Counsel for the accused. Therefore, I am of the view that no objection can be raised at the stage of final arguments to the effect that PW-37 was examined without taking a leave of the court.
87) PW4-Dy. Suptd. Balwan Singh during his chief-examination and in the reply Ex. PW-4/P-6, has clearly stated that "there was no CCTV camera installed in the barrack No. 107 ward No. 2 Jail No. 10, Rohini Jail".
88) I perused testimonies of PW2-Kamlesh @ Kamal, PW6-Pappu, PW7-Kishan Kumar, PW24-Kalu and PW33- Khajanchi Lal who were inmates of barrack no. 107 ward no. 2 and it is observed that Ld. Counsel for the accused has not asked any question on the point of CCTV camera in barrack no. 107 and therefore, they have not stated that there was CCTV camera or not in barrack no. 107. Therefore, I am of the view that merely stating by PW3- Kuber Jatav during his cross-examination that "there was CCTV camera in the barrack" is not sufficient to hold that there was CCTV camera in barrack No. 107. I have also gone through the testimonies of PW1-Jagdish Singh, Dy. Suptd. Rohini Jail No. 10; PW15-Sunil Balhara, Head Warden, Central Jail, Rohini; PW16-Parvinder, Warden, Rohini Jail Complex and PW17-Niranjan Singh Dahiya, Asstt. Suptd., Rohini Jail who were officials of Rohini Jail at the time of incident and it is observed that ld. Counsel for the accused has not cross-examined them on the point whether CCTV camera was installed in barrack No. 107, ward no. 2 or not. Even no suggestion had been put to them SC No. 619/2018 Page No. 53 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli that CCTV camera was installed in barrack No. 107.
89) PW4-Dy. Suptd. Balwan Singh, Rohini Jail has stated in document Ex.PW-4/P-6 that there was no CCTV camera installed in barrack No. 107 and his oral testimony during his cross-examination that "there was CCTV camera installed in barrack No. 107 of Ward No. 2, Jail No. 10" is against the document Ex. PW-4/P-6 and as such can not be read in evidence. Moreover, PW-4 has stated during his chief-examination that "there was no CCTV camera in barrack No. 107". Moreover, if the report Ex. PW-37/154 which has been filed by PW37-Priyanka, Kumari, Suptd. Central Jail 10, Rohini, Delhi is read in evidence, it again shows that there was no CCTV camera installed at barrack No. 107 Ward no. 2 Jail No. 10, Rohini Jail.
In the light of the above reasons and discussions, it is held that there was no CCTV camera installed in barrack No. 107 Ward no. 2 Jail No. 10, Rohini Jail on the date of incident.
90) It is submitted by the ld. Counsel for accused that accused has been falsely implicated by the prosecution for causing the death of Pawan in barrack No. 107 in ward no. 2 by beating him as PW2-Kamlesh who was present in the said barrack, had not seen the accused beating deceased Pawan and PW24-Kalu has also said the same fact.
91) I perused the testimony of PW2-Kamlesh @ Kamal who has SC No. 619/2018 Page No. 54 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli
stated that "in the intervening night of 21/22-05-2018 at about 1:30 a.m. after hearing noise when all the inmates of our barrack were awake and one of inmate Pawan was lying unconscious. The other inmates were sprinkling the water on the face of Pawan in order to make him conscious and after 5-6 minutes when Pawan did not regain consciousness, the bell of the barrack was pressed to call the staff of Jail". This witness has proved that when he had awakened due to hearing of noise of the other inmates who were present in the barrack on the said day, inmate Pawan was lying unconscious and inmates namely Kalu, Khajanchi Chacha, Karan @ Mental, Solli Bhai, Kanak and others were trying to make him conscious but he could not be made conscious. He has also proved that Head Warden Sunil Ballara had reached their after 5-6 minutes since the bell was pressed and he went to call the Doctor. He has also proved that Pawan used to work for accused Krishan and accused krishan gave kick blows to Pawan and asked him to prepare Roohafza and thereafter, accused Krishan went to his bed in our barrack and I had witnessed this incident.
92) I agree with the submissions of ld. Counsel for the accused that it could be not proved that PW-2 has given testimony to the effect that he had seen the accused Krishan beatings to Pawan.
93) It is submitted by the ld. Counsel for the accused that as per statement of PW2-Kamlesh, PW3-Kuber Jatav and PW39-IO Ved Prakash of SC No. 619/2018 Page No. 55 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli the present case confirms the fact that there were around 29-30 inmates present in the barrack no. 107, ward no. 2 at the place of incident but only 6 inmates were made eye witnesses in this case, who were arranged by the Jail Staff, however, all these inmates have deposed that all the inmates had waked up at that time, why the IO has made only 6 inmates as witnesses in the case, although they were interrogated by him.
94) I considered the submissions of ld. Counsel for the accused as submitted above.
95) I am of the view that how it can be said that six inmates who were examined by the IO-Ved Prakash were arranged by Jail Staff to depose against the accused. I am also of the view that it would have been futile exercise to examine all the inmates present in the barrack no. 107, ward no. 2 Jail no. 10, Rohini Jail at the time of incident and it was sufficient to examine six witnesses by the IO. If the accused had the defence that six witnesses examined by the IO were arranged by the Jail Staff to depose against him, he could have summoned the other inmates for his defence evidence but no defence evidence has been led on behalf of the accused and therefore, the contention of the ld. Counsel for the accused is not tenable.
96) It is submitted by the ld. Counsel for the accused that the SC No. 619/2018 Page No. 56 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli
investigating officer of the present case stated during his cross-examination that he did not record the statements of jail staff and UTPs when he made enquiry from them last time and he made enquiry from accused and UTPs but did not prepare any documents regarding the same. It is further submitted that IO further confirms in his testimony that he enquired from 10-15 UTPs in the morning and other UTPs were interrogated later on but in the file there are no such statements and IO made 6 inmates witness in this case and there is no record of examination of other inmates to the effect that as what they said whether in favour of the accused or against the accused. It is further submitted that the IO had opted pick and choose policy and only select 6 witnesses out of 29-30 which shows that the witnesses were chosen as per instructions of the jail authority who were made ready by force to depose against the accused to save the jail authority for murder of Pawan and he has not fairly investigated the matter and implicated an innocent man who is facing trial as an accused without committing any offence. It is further submitted that there was two month delay in recording the statements of witness under Section 164 Cr.P.C. and no investigation was made in the presence of Shri Sachin Gupta, then ld. MM and all the witnesses were examined in the office of Dy. Suptd. and why they were not examined in the presence of ld. MM.
97) I considered the submissions of ld. Counsel for the accused as submitted above.
SC No. 619/2018 Page No. 57 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 98) It is correct that IO had made enquiry from all the UTPs who were
present in the barrack no. 107, ward no. 2 Jail no. 10, Rohini Jail on the night of incident but only six inmates were made as eye witnesses in the case and no statement of other inmates were recorded and filed on record. I am of the view that if IO had not recorded the statement of all the UTPs and only made six witnesses as eye witnesses accused could have summoned those whose statements were not recorded by the IO as his defence witnesses but he had not done so. Therefore, I am of the view that the testimonies of six witnesses can not be rejected on the ground that the statements of other inmates were not recorded and placed on judicial file by the IO-Ved Prakash and it can not be said that these witnesses were chosen as per the instructions of the Jail Staff. I am also of the view that veracity of the prosecution case does not affect, if the statements of witnesses under Section 164 Cr.P.C. were got recorded after two months of the incident. I am also of the view that if Shri Sachin Gupta, then Ld. MM was present in the jail for conducting his proceedings, it was not necessary for the IO to examine witnesses in presence of Ld. MM because the investigation was being conducted by IO and Ld. MM was conducting his proceedings. I am of the view that it can not be said that the six witnesses were planted by IO at the instance of officials of the Jail and they are hard-core criminals and they have falsely deposed because they were present in the barrack on the night of the incident and their testimony can not be rejected on this ground. Since IO had not recorded statements of other inmates and only made enquiries from accused and from them, therefore, question of SC No. 619/2018 Page No. 58 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli destroying the statements of accused and other inmates does not arise.
99) It is submitted by the ld. Counsel for the accused that the accused has been falsely implicated by IO to save jail authority who were dealing in drugs trade and supply of blade etc. and death of Pawan S/o Vijay Nath was caused by beatings given by jail authorities and IO has not taken into consideration of fact that CCTV installed in barrack no. 107, Ward no. 2 and filed false report dated 22-11-2018 in the court.
100) I considered the submissions of ld. Counsel for the accused as submitted above. It has already been considered whether CCTV camera was installed in barrack no. 107, ward no. 2 or not and it has already been held that no CCTV camera was installed in barrack no. 107, ward no. 2 and the report dated 22-11-2018 Ex. PW137/154 filed on record is not false.
101) PW3-Kuber Jatav has stated during his cross-examination that accused used to take and sell the drugs in the jail. It has come in the statement of Kalu, Krishan S/o Karan Singh recorded under Section 164 Cr.P.C. that accused Kisshan had consumed the drugs on the night of the incident. I do not agree with the submissions of ld. Counsel for the accused that IO should have investigated on the taking and selling of smack in the jail because these points were not relating to the murder of Pawan @ Pappu. Therefore, accused can not take benefit of the fact that SC No. 619/2018 Page No. 59 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli IO had not investigated on these points.
102) It is submitted by the ld. Counsel for the accused that some of the prosecution witnesses except PW6-Pappu have stated that accused caused death of Pawan by beating him on his refusal to make roohafza for him but PW- 6 has stated that the accused killed him for different reason and stated that "one day prior to this incident, accused Krishan had given a cut on the left hand of Pawan with a blade. The matter was not brought to the Doctor as well as Jail Warden. Pawan informs Sulli Bhai and others that accused Krishan had given a cut on his left hand with a blade on which accused had threatened Pawan and on the same night accused killed him".
103) I considered the submissions of ld. Counsel for the accused as submitted above.
104) PW2-Kamlesh has stated when he was cross-examined by Ld. APP for the State that "Kishan gave kick blow to Pawan and asked to prepare Roohafza for him and thereafter, Kishan went to his bed". PW3- Kuber Jatav has also stated that "accused was giving repeated blows on the chest of Pawan and saying him that Roohafza kaise nahi banayega". PW6-Pappu has also stated that "I saw accused Kishan asked UTP Pawan to prepare Roohafza and UTP Pawan refused to prepare Roohafza for him and accused Kishan starting giving beatings to Pawan with kick and fist SC No. 619/2018 Page No. 60 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli blows". PW-6 has also stated that "one day prior to this incident, accused Krishan had given a cut on the left hand of Pawan with a blade. The matter was not brought to the Doctor as well as Jail Warden. Pawan informs Sulli Bhai and others that accused Krishan had given a cut on his left hand with a blade on which accused threatened Pawan and on the same night accused killed him". This does not mean that Pawan was murdered for different reason. Therefore, the contention of ld. Counsel for the accused that PW-6 had stated that accused killed Pawan for different reason, is not tenable.
105) It is further submitted by the ld. Counsel for the accused that there are contradictions in the testimonies of witnesses about the beatings and injuries reflected in the postmortem report of the deceased Pawan. It is further submitted that as per the statement of eye witnesses of the prosecution, Pawan S/o Shri Vijay Nath was beaten by the accused on his neck, chest etc. but as per the postmortem report, the deceased was having multiple contusions over the lugs which are situated on the back of body and the witnesses are not aware that Pawan S/o Vijay Nath was beaten by the jail staff on his back side and due to said beatings, he received injuries on his lungs.
106) I considered the submission of ld. Counsel for the accused as submitted above. No evidence has been led on behalf of the accused in support of his defence. There is no evidence on record that deceased Pawan SC No. 619/2018 Page No. 61 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli was given beatings by Jail staff. Therefore, how it can be said that deceased Pawan was given beatings by Jail staff on the backside of his body and due to said beatings, he received injuries on his lungs.
107) I perused the postmortem report Ex. PW18/P-34 and it is observed that multiple contusions were present on anterior surface of upper and lower lobes of right lung and contusions was present within inter-lober surface of left lung. I do not agree with the submissions of ld. Counsel for the accused that lungs are situated on the back of the body. As per evidence on record, the beatings were badly given to the deceased Pawan on the chest and that is why he suffered contusions on his left and right lungs as mentioned in the postmortem report ex. PW-18/P-34. How it can be accepted that deceased Pawan was shifted from Chakkar after having given beatings by Jail staff when there is no evidence at all in this regard. Witnesses PW2-Kamlesh; PW3- Kuber Jatav; PW6-Pappu; PW33-Khajanchi Lal have stated that accused had given beatings to deceased Pawan on the neck and chest and as per postmortem report Ex. PW-18/P-34, the external injuries were found on chest over the left side of neck and internal injuries also found on the neck, chest and lungs and therefore, the facts of beatings given to Pawan as stated by the witnesses and injuries matched with the postmortem report of the deceased Pawan.
108) It is submitted by the ld. Counsel for the accused that as per SC No. 619/2018 Page No. 62 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli
prosecution story, deceased Pawan was beaten and marks over his neck and chest were present but FSL report of finger print experts says that prints taken from the body could not be matched with finger or foot prints of the accused.
109) As per foot prints examination report Ex. PW-9/P-159 (colly), the result of examination is that the questioned finger print present on the neck in photographs marked as Q1, Q2, Q3 and Q4 are not showing any visible patterns/ characteristics to be compared with and this shows that the questioned finger prints present on the neck could not be compared with and no opinion can be furnished. I am of the view that if the opinion regarding questioned finger prints could not be given due to not seeing any visible patterns / characteristics which could have been compared with the admitted finger prints of the accused, it can not be said that the accused had not given beatings to the deceased Pawan as the eye witnesses have deposed that accused had given beatings to deceased Pawan on his neck and chest.
110) There are witnesses who have categorically stated that accused had given beatings to the deceased on his neck and chest and they have corroborated version of each other on the point of giving beatings by the accused on the neck and chest of the deceased. Therefore, no benefit of the result of examination on the point of finger print report Ex. PW-39/P-159 can be given.
SC No. 619/2018 Page No. 63 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 111) It is submitted by the Ld. counsel for the accused that the name of
the accused was disclosed at the belated stage by the eye witnesses and he has relied upon case-laws Panda Nana Kare Vs State of Maharashtra reported as 1978 LawSuit(SC)371 and Brij Nandan Rai Vs State of Bihar reported as 1991 LawSuuit(Pat)61 in support of his arguments.
112) PW-39 Inspector Ved Prakash, IO of the case recorded the statements of eye witnesses on 22-05-2018 i.e. on the same day, in which name of the accused was disclosed by eye witnesses. During his cross- examination, he has categorically stated that he had recorded the statements of UTPs at about 5/6 p.m. in Rohini Jail on 22-05-2018 i.e. on the same day. Since eye witnesses in the present case had disclosed the name of the accused on the day of the incident itself, the ratio of case-laws Panda Nana Kare Vs State of Maharashtra (Supra) and Brij Nandan Rai Vs State of Bihar (Supra) is not applicable to the facts of the present case.
113) Ld. Counsel for the accused has relied upon case-law namely Dilip Singh and Anr. Vs Emperor reported as 1924 LawSuit(Lah) 278.
114) In case-law Dilip Singh and Anr. Vs Emperor (Supra), prosecution was not able to prove that which of the appellants had caused injury on the head of the deceased which was proved to be fatal and the SC No. 619/2018 Page No. 64 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli Hon'ble High Court of Lahore had held that we can not convict either of them for the offence of culpable homicide under Section 304 IPC but in the present case accused has only one who had given injuries to the deceased and therefore, the case-law relied by the ld. Counsel for the accused is not applicable to the facts of the present case.
115) Ld. counsel for the accused submits that the accused had not given beatings to the deceased with the intention of causing death or the act of beatings was not done by the accused with the intention of such boldly injuries as he knows to be likely to cause death of the deceased and therefore, he can not be held guilty for the offence punishable under Section 302 IPC.
116) On the other hand, ld. Addl. PP for the State submits that act of giving beatings to the deceased was done by the accused with the intention of causing boldly injuries and such boldly injuries were sufficient, in the ordinary course of nature to cause death of the deceased and therefore, as per Clause third of Section 300 IPC, the accused is guilty of offence punishable under Section 302 IPC. He has relied upon case-law namely (1) Rajwant Singh (in CRA No.102 of 1965) 2. Kalarimadathil Unni (in CR.A. No. 103 of 1965), appellants Vs State of Kerala (in both the appeals), respondent reported as AIR 1966 SC 1874 in support of his arguments.
SC No. 619/2018 Page No. 65 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli 117) I considered the submissions of ld. Counsel for the accused and
ld. Addl. PP for the State as submitted above and gone through the case-law (1) Rajwant Singh (in CRA No.102 of 1965) 2. Kalarimadathil Unni (in CR.A. No. 103 of 1965), appellants Vs State of Kerala (supra) relied by the ld. Addl. PP for the State.
118) PW-18 Dr. Raj Kumar and PW-19 Dr. Rohit Bharti were the members of the Medical Board who had conducted the postmortem of body of Pawan S/o Shri Vijay Nath (deceased) and both have given opinion that death of Pawan had occurred as a result of cardiogenic shock consequent upon blunt force trauma to the chest which was sufficient to cause death in ordinary course of nature. Since boldly injuries caused by the accused on the chest of the deceased by blunt force, has been opined as sufficient to cause death in the ordinary course of nature, therefore, in view of ratio of case-law (1) Rajwant Singh (in CRA No.102 of 1965) 2. Kalarimadathil Unni (in CR.A. No. 103 of 1965), appellants Vs State of Kerala (supra), the offence falls under the definition of murder punishable under Section 302 IPC whether the offender had knowledge or not of the consequences of those injuries does not matter and the prosecution has to first establish that injury is caused, next if must be established objectively what is the nature of that injury in the ordinary course of nature and if the injury is found to be sufficient to cause death, one test is satisfied, then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or SC No. 619/2018 Page No. 66 of 67 FIR No. : 433/2018 State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli unintentional and if this is also held against the offender, the offence of murder is established.
119) In the present case, the cause of death has been opined by PW- 18 and PW-19, I am of the view that the present case falls in 3 rd Clause of Section 300 IPC.
120) In view of the above discussions and reasons therein, it is held that accused has committed the offence punishable under Section 302 IPC. Since there is no trustworthy evidence on record on the basis of which accused can be held for the offence punishable under Section 506 IPC, he is acquitted for the said offence.
Digitally signedby CHANDRA
CHANDRA BOSE
BOSE Date:
2019.06.06
17:24:10 +0530
Pronounced in the open court CHANDRA BOSE
on 6th day of June 2019 Addl. Sessions Judge-03
North District, Rohini Courts Delhi.
SC No. 619/2018 Page No. 67 of 67 FIR No. : 433/2018
State Vs Krishan @ Kishan @ Chunda PS : S.P. Badli