Delhi District Court
State vs . Sanjeet Kumar on 11 December, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 55/11
Unique Case ID No.: 02404R0222312011
State Vs. Sanjeet Kumar
S/o Ram Avtar
R/o Jhuggi No. 85, BG1,
East Shalimar Bagh, Delhi
FIR No.: 170/2011
Police Station: Shalimar Bagh
Under Sections: 302/201 Indian Penal Code
Date of committal to Sessions court: 19.8.2011
Date on which judgment was reserved: 17.11.2012
Date on which judgment pronounced: 27.11.2012
JUDGMENT:
(1) As per the allegations, in the intervening night of 1617.5.2011 in Jhuggi No. 85, BG1, East Shalimar Bagh, Delhi the accused Sanjeet Kumar committed the murder of Suresh @ Nati by manually strangulating him. It is also alleged that the accused Sanjeet Kumar knowingly or having reasons to believe that an offence of murder had been committed by him, concealed the blood stained pillow thereby caused the evidence of murder to disappear with intention to screen himself from legal punishment and thereafter he got recovered the said St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 1 pillow from Khatta (koora ghar) at BH Block, Shalimar Bagh. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 17.5.2011 at about 5:51 AM a telephone call was received in PCR from mobile No. 9818232880 that the brother of the caller had been murdered pursuant to which information was sent to Police Station Shalimar Bagh and DD No. 11B was lodged in this regard. Thereafter SI Baljeet Singh along with Ct.
Devender reached the spot i.e. P86, BG1 Block, East Shalimar Bagh, Delhi where they found the dead body of a male aged about 2425 years in front of Jhuggi No. P86. The caller Santosh Kumar met the police and disclosed that the dead body was of his brother Suresh @ Nati. Santosh Kumar informed the police that his deceased brother Suresh @ Nati was a daily wager and a compulsive alcoholic. He further informed the police that on 16.5.2011 at about 6:00 PM Suresh @ Nati came to the Jhuggi in an intoxicated condition and told them that he was going outside and would sleep outside after which he went back. According to Santosh Kumar in the morning at about 5:45 AM he noticed the dead body of his brother Suresh in front of Jhuggi No. P86, BG1 Block on which he made a call at 100 number.
(3) On the basis of the statement of Santosh Kumar the present FIR was got registered under Section 302 IPC. Thereafter the postmortem examination of the dead body was got conducted. During St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 2 investigations it was revealed that the resident of Jhuggi No. 85 (i.e. the jhuggi adjoining the Jhuggi no. 86 in front of which the dead body was found) namely Sanjeet Kumar was missing. On 20.5.2011 pursuant to a secret information the suspect/ accused Sanjeet Kumar was apprehended from Children Park, Shalimar Bagh. On interrogation the accused admitted having committed the murder of Suresh @ Nati on the intervening night of 1617.5.2011. He had disclosed that there was a quarrel/ brawl between him and Suresh @ Nati who was his friend during which he committed his murder and thereafter dragged his body in front of Jhuggi No. 86 and cleaned the floor of his jhuggi with newspapers. Pursuant to his disclosure statement the accused got recovered the blood stained pillow from the garbage dump (koora ghar) near DDA flats. Thereafter provisions of Section 201 Indian penal Code were also added and after completion of investigations charge sheet was filed against the accused Sanjeet Kumar for the offence under Section 302/201 IPC.
CHARGE:
(4) Charges under Sections 302 and 201 Indian Penal Code were settled against the accused Sanjeet Kumar to which he pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 3
List of witnesses:
Sr. No. PW No. Name Nature of witness
1 PW 1 Ct. Subash Police witness/ crime team
photographer
2 PW 2 W ASI Manisha Police witness/ Duty
Officer
3 PW 3 ASI Raghunath Police witness/ PCR
official
4 PW 4 SI Manohar Police witness/ Draftsman
5 PW 5 Ct. Rajender Police witness
6 PW 6 Ct. Shokender Police witness/ Special
Messenger
7 PW 7 HC Kewal Police witness
8 PW 8 HC Mukesh Police witness/ MHCM
9 PW 9 Ct. Udey Veer Police witness/ PCR
official
10 PW 10 Sh. Shambu Public witness/ brother of
the accused
11 PW 11 Sh. Asha Ram Public witness/ last seen
witness
12 PW 12 Sh. Suresh Chander Public witness/ pheriwala
13 PW 13 Sh. Narender Kumar Public witness/ private
photographer
14 PW 14 Chameli Devi Public witness/ mother of
the deceased
15 PW 15 Sh. Dinesh Kumar Public witness/ brother of
the deceased
16 PW 16 Sh. Rajiv Kumar Public witness/ neighbour
of the accused
17 PW 17 Ms. Kavita Goel FSL Expert
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 4
18 PW 18 Ms. L. Babyto Devi FSL Expert
19 PW 19 SI Satpal Singh Police witness/ Incharge
Crime Team
20 PW 20 Ct. Devender Singh Police Witness
21 PW 21 SI Rattan Lal Police witness
22 PW 22 SI Baljeet First Investigating Officer
23 PW 23 Sh. D. S. Paliwal FSL Expert
24 PW 24 Sh. Santosh Kumar Public witness/ brother of
the deceased
25 PW 25 Dr. V K Jha Autopsy Surgeon
26 PW 26 Inspector Veer Singh Investigating Officer
List of documents exhibited:
Sr. Exhibit No. Details of documents Proved by
No.
1 Ex.PW1/1 Affidavit of Ct. Subhash Ct. Subash
2 Ex.PW1/A1 Photographs
to A10
3 Ex.PW1/B Negative
4 Ex.PW2/1 Affidavit of ASI Manisha W/ASI Manisha
5 Ex.PW2/A Copy of FIR
6 Ex.PW2/B Endorsement on Rukka
7 Ex.PW2/C DD No. 11A
8 Ex.PW3/1 Affidavit of ASI Raghunath ASI Raghunath
9 Ex.PW4/1 Affidavit of SI Manohar Lal SI Manohar Lal
10 Ex.PW4/A Site Plan
11 Ex.PW5/1 Affidavit of Ct. Rajender Ct. Rajender
12 Ex.PW6/1 Affidavit of Ct. Shokender Ct Shokender
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 5
13 Ex.PW7/1 Affidavit of HC Kewal HC Kewal
14 Ex.PW8/A Copy of entry No. 3662 HC Mukesh
15 ExPW8/B Copy of entry No. 3363/11
16 Ex.PW8/C Copy of entry Sr. No. 3667/11
17 Ex.PW8/D1 Copy of RC
to D3
18 Ex.PW8/D3 Copy of RC
19 Ex.PW8/E1 Copy of FSL Receipt
to E3
20 Ex.PW9/A PCR Form Ct. Uday Veer
21 Ex.PW10/A Arrest memo of Sanjeet Sh. Shambu
22 Ex.PW13/A1 Photographs of Jhuggi Sh. Narender
to A3
23 Ex.PW13/B1 Photographs of inside the Jhuggi
to B2
24 Ex.PW15/A Dead body identification memo Sh. Dinesh
25 Ex.PW15/B Dead body handed over memo
26 Ex.PW17/A Viscera Report Ms. Kavita Goyal
27 Ex.PW18/A Crime Team Report Ms. L. Babyto
28 Ex.PW18/B FSL Biological report Devi
29 Ex.PW18/C FSL Serological report
30 Ex.PW19/A Crime Team Report SI Satpal
31 Ex.PW21/A Seizure memo of Pullanda No.1A SI Rattan Lal
and 2A
32 Ex.PW21/B Seizure memo of Pullanda No.3A
33 Ex.PW21/C Seizure memo of Pullanda No.4A
34 Ex.PW21/D Seizure memo of Pullanda No.5A
35 Ex.PW21/E Seizure memo of Pullanda No. 6A
36 Ex.PW21/F Seizure memo of photographs
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 6
37 Ex.PW21/G Arrest memo
38 Ex.PW21/H Personal search memo
39 Ex.PW21/J Disclosure statement
40 Ex.PW21/K Pointing out memo
41 Ex.PW21/L Seizure memo of Pillow
42 Ex.PW21/M Seizure memo of Baniyan
43 Ex.PW21/N Disclosure statement
44 Ex.PW21/O Seizure memo of Electricity Bill
45 Ex.PW21/P Electricity Bill
46 Ex.PW21/Q Seizure memo of Photographs
47 Ex.PW22/A DD No. 11B SI Baljeet
48 Ex.PW22/B Seizure memo of Blouse and
Petticoat
49 Ex.PW22/C Seizure memo of Chappal
50 Ex.PW22/D Seizure memo of Two Half Bricks
51 Ex.PW22/E Seizure memo of Match box
52 Ex.PW22/F Seizure memo of Blood Sample
53 Ex.PW22/G Statement
54 Ex.PW22/H Rukka
55 Ex.PW22/I Seizure memo of Articles
56 Ex.PW23/A DNA Finger Print Report Sh. D S Paliwal
57 Ex.PW23/B Genotype Data in respect of
Exhibit 1 & 4
58 Ex.PW23/C Forwarding Letter
59 Ex.PW24/A Dead Body identification statement Sh. Santosh
Kumar
60 Ex.PW25/A Postmortem Report Dr. V K Jha
61 Ex.PW26/A Inquest Documents Inspector Veer
62 Ex.PW26/B Brief Fact Singh
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 7
63 Ex.PW26/C Request for Postmortem
64 Ex.PW26/D Site Plan
65 Ex.PW26/E Site plan (Place of Recovery of
Pillow)
EVIDENCE:
(6) In order to prove its case the prosecution has examined as
many as twenty six witnesses as under:
Public Witnesses:
(7) PW10 Shambhu is the brother of the accused and is a daily
wages labourer residing at Jhuggi No. P86, BG 1 Block, East Shalimar Bagh, Delhi along with his family comprising of his wife, two children (both sons) whereas his father is residing separately in another jhuggi near his house. He has deposed that on 16.05.2011 his father had gone to the village and accused Sanjeet who is his younger brother was in his jhuggi which was also near to his (witness's) jhuggi. He has further deposed that on the intervening night of 16/17.05.2011 at around 6 AM large number of persons had gathered at the jhuggies and people were talking that somebody had expired. According to the witness, the dead body of Kalu who was residing in neighbouring jhuggi was lying in front of his door. He has testified that there were signs of injuries on the body of the deceased on the nose and face on which they called the pardhan who telephoned the police. The witness has also deposed that he did not see Sanjeet on that day and that Sanjeet was found on the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 8 third day (teesre din) and was apprehended by the police from the jhuggi when he had come there.
(8) A specific Court Question was put to the witness as to why was Sanjeet apprehended, to which the witness explained that Sanjeet had informed that he had killed Kalu on which police had apprehended him (usne kaha tha maine usko, Kalu ko, mara hai to police ne usko pakar liya). The witness has further deposed that on the day police arrested Sanjeet they had taken the photocopy of the ration card when the police informed him about arrest of Sanjeet. He has proved the arrest memo of accused Sanjeet which is Ex.PW10/A. (9) Leading questions were put to the witness by the Ld. Addl. PP for the State, on which the witness has deposed that he does not recollect if he had told the Investigating Officer that the name of the deceased was Suresh S/o Moti Lal and has voluntarily stated that the deceased was known as Kalu in the area. He is also not aware if he (Kalu) was a resident of Jhuggi No.N54/211, BG1, East Shalimar Bagh and has voluntarily added that he knew his jhuggi but not the address. He has admitted that he had told the police that Sanjeet had escaped from the spot when the crowd had gathered and was apprehended on the third day. He has correctly identified the accused Sanjeet in the Court.
(10) In his cross examination by Ld. Defence Counsel, the witness has deposed that Sanjeet is his real brother and that he had not seen Sanjeet in the crowd which had gathered outside his house near the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 9 dead body and has voluntarily stated that he (accused Sanjeet) was not available at that time. He has further deposed that he had come to the court in the vehicle of the police and that he had not been threatened by anybody before coming to the Court. The witness has also deposed that the police had apprehended Sanjeet from his own jhuggi and he was in the police station at that time and has voluntarily added that from the day the dead body had been recovered, he remained at the police station.
According to the witness, Sanjeet had told the police in his presence that he had killed Kalu. He has denied the suggestion that police had told him that Sanjeet had killed Kalu and it is for this reason that he was stating this fact in the court on the day of his deposition and has voluntarily explained that it was Sanjeet who told the police in the police station in his presence that he had killed Kalu. According to PW10 Shambhu, he had affixed thumb impressions on the arrest memo of the accused in the police station. He has admitted that he left the police station after Sanjeet was apprehended and has voluntarily added that police had caught Sanjeet from his jhuggi and he did not come to the police station himself. He has further deposed that he along with his wife and children remained in the police station till the apprehension of Sanjeet. The witness has testified that a large number of persons were taken by the police from the Jhuggi cluster in connection with this murder and all of them were not detained by the police. He has admitted that some clothes of the deceased Kalu were found from the possession St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 10 of Sanjeet but he is unable to tell to whom the clothes of females i.e. petticoat and blouse belonged to. He has denied the suggestion that he was under the pressure of police and has deposed under their pressure and tutoring.
(11) PW11 Asha Ram is a resident of Jhuggi No. 1, BG1 East Shalimar Bagh, Delhi since his childhood and was working in a factory at Bhorgarh. He has deposed that on 16.05.2011 at about 1111:30 AM Suresh @ Nati who was his friend had given Rs.100/ to him for the purchase of liquor on which he purchased an "adda" (half liquor bottle) and thereafter he along with Suresh @ Nati consumed alcohol first at the jhuggi and thereafter at Beri wala park. According to him, at the park they purchased another "adda" and meat where they were also joined by another boy by the name of Johny a resident of the same jhuggi and at about 44:30 PM they all returned to their jhuggies. He has testified that when they reached the jhuggies, one pheriwala came who was selling clothes and Suresh @ Nati purchased took two petticoats of pink colour and blouses of red colour for his mother. According to the witness, in his presence Suresh did not pay to pheriwala and thereafter he came back to the park while Suresh returned to his jhuggi. The witness has further deposed that Suresh @ Nati again came in the park during the late evening hours when it became dark and wanted to consume more alcohol to which he (witness) refused and told him that he was going to jhuggies to sleep and thereafter both of them St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 11 returned to their jhuggies cluster. PW11 Asha Ram further deposed that he saw Suresh @ Nati going towards the jhuggi of Sanjeet and entering his jhuggi while he himself returned to his own jhuggi and slept outside on a takhat. According to the witness, on the next day morning he was woken up by the police and brought near the house of Shambu where the body of Suresh @ Nati was lying and a large number of persons had gathered at the spot and it was then that he came to know that Suresh @ Nati was dead. He has testified that there was blood was on his nose and face and some stones were lying around his body. The witness has also deposed that he was brought to the police station and his statement was recorded by the police in the police station. (12) With the permission of the Court leading questions were put by the Ld. Addl. PP for the State to the witness, wherein he has admitted that his statement was recorded by the police which is Ex.PW11/PX1. He has denied to the suggestion that he had told the police that he had seen the clothes i.e. petticoat and blouse of red and pink color which Suresh @ Nati had purchased for his mother also lying under his baniyan. He has identified the accused Sanjeet in the Court. (13) In his cross examination by the Ld. Defence Counsel the witness has deposed that Suresh @ Nati was known to him since childhood and Sanjeet was also known to him since childhood as he is residing in the same jhuggi cluster. According to him, they were many friends in the locality and Suresh @ Nati and he had never quarreled St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 12 with each other nor they made any collections during the Holi for celebrating the same. He has denied the suggestion that he along with Suresh @ Nati used to go and collect money for celebrating Holi and there was a dispute between them on this issue. He has deposed that it was Suresh @ Nati himself who had purchased the alcohol and has voluntarily explained that he did not compel him to consume alcohol. According to the witness, Suresh @ Nati did not ask him to pay for the alcohol. He has denied the suggestion that they had quarreled with the pheriwala as Suresh @ Nati did not pay for the clothes and ran away for the same or that he had quarreled with Suresh @ Nati on alcohol even after the purchase of the clothes from the pheriwala. The witness has testified that police did not get him back to the spot where the dead body of the deceased was found after he was taken to the police station and has voluntarily explained that he was taken near the dead body before being taken to the police station. He has denied the suggestion that many people in the jhuggi cluster sleep outside during the summer season and has voluntarily explained that they slept inside. According to him, as per his information Suresh @ Nati had no love affair with anybody. He has deposed that he remained at the police station for threefour days where the police had interrogated him but did not ask him to sign any statement. The witness has denied the suggestion that he has deposed under the pressure and tutoring of the Investigating Officer.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 13 (14) PW12 Suresh Chander is the pheriwala/ street hawker who has deposed that he is residing at House No. 40, Gali No. 1, Saini Mohalla, Shalimar Gaon, Delhi along with his family comprising of his wife, two children i.e. one son and one daughter and was doing the job of selling clothes i.e. petticoat and blouse on a pheri on his cycle. He has further deposed that on 16.05.2011 at about 4:305:00 PM he was on a pheri at BG1 Shalimar Bagh jhuggies and was selling clothes on his cycle and at that time two boys approached him and took two petticoats make century and two ready made blouses but they did not pay for the same and snatched both the petticoats forcibly from him. According to the witness, he told them not to snatch the same and to make payment for the same but they told him that they did not have the money and insisted that they would make the payment on the next day. He has also deposed that he normally went to the area, twothree times a week to sell his goods and used to sell his articles on payment of cash and it was for the first time that somebody had snatched the clothes like this and gone away without making the payment. Witness has also testified that next day he again went on pheri to that area and came to know that one of the boys who had taken the clothes had been murdered on which he met the police at the spot and told the police that the deceased was the boy who had taken the clothes from his pheri. According to him, he also saw another boy with the police and identified him to be the same boy who was with the other boy who had snatched the clothes from his cycle and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 14 informed this fact to the police. The witness has correctly identified the petticoats (one of Indian Pink colour i.e. Rani Pink and another of orange colour) and two stitched blouses (one of Indian Pink colour i.e. Rani Pink and another of orange) which had been forcibly taken by the boys from his cycle pheri which clothes are collectively Ex.P1. (15) In his cross examination by the Ld. Defence counsel, the witness has deposed that he was having a pheri for the last seven to eight years and selling the clothes on his cycle. He has admitted that stitched clothes i.e. petticoat and blouse which have been produced in the court are easily available in the market but has voluntarily explained that he could identify the said clothes after touching them on account of their quality. After examining the quality of the clothes in the Court, the witness has stated that both the petticoats were of century cloth and the blouses were of "terry rubia". He has further deposed that he did not raise any alarm when the clothes were snatched from his cycle by the said boys and has voluntarily explained that he was told by the ladies making purchases from him that those boys were the local "badmash" of that area and they advised him to leave or else those boys could also take away his other articles on which he quickly tied the other clothes and went away. The witness has further explained that one of the boys had also caught hold of his hair from back when he asked him for money and therefore feeling apprehensive he left. He has deposed that he did not inform the police about the incident or make any complaint and has St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 15 voluntarily explained that on the next date he met the police at the spot itself and told them about the same. In response to a specific Court Question the witness replied that both the boys were completely drunk at that time. According to him, one of them was tall and another was short and it was the short boy who had caught hold of his hair. He has further deposed that the entire incident lasted for about ten to fifteen minutes and has voluntarily added that many persons were making purchasing from him and it was on the advise of the public persons that he wound up and went away as those boys were trying to snatch the articles which he was selling. He has testified that he had never gone to the police station and that his statement was recorded by the police at the jhuggi cluster where he met them and where he had shown them the other boy. He has denied the suggestion that he is a planted witness by the police or that the clothes were taken from him and it is only to workout the present case that he has been made a witness.
(16) PW13 Narender Kumar has deposed that he was running photo studio under the name and style of Ritu Digital Studio at main road Shalimar Village since 2008. He has further deposed that on 19.05.2011 SHO Police Station Shalimar Bagh had given him a telephone call and asked him to come at BG1 jhuggies at Shalimar Bagh on which he went to BG1 East Shalimar Bagh jhuggies and on the pointing out of the police officers, he took certain photographs of a jhuggi by digital camera which photographs are Ex.PW13/A1 to St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 16 Ex.PW13/A3. The witness has also deposed that on 20.05.2011 he was called by the SI Rattan Kumar to the same jhuggi cluster and was asked to take the photographs of a different spot from inside the jhuggi by a digital camera which photographs are Ex.PW13/B1 to Ex.PW13/B2. (17) In his cross examination by the Ld. Defence counsel, the witness has deposed that he cannot produce the negatives because the photographs were taken by the digital camera. He is unable to tell the jhuggi number whose photographs he had taken. The witness has further deposed that he was not maintaining any register with regard to the calls received pursuant to which he went for taking outdoor photographs. He is unable to produce any document in the form of receipt of payment of the amount for taking the photographs. He has further deposed that he had come to the court previously also as a witness in fivesix cases. He has admitted that the local police often called him for taking photographs. The witness has denied the suggestion that the photographs are not of the spot and he had fabricated the same on the asking of the public.
(18) PW14 Smt. Chameli Devi has deposed that she was residing at BG1 Jhuggi No. 54/211, Shalimar Bagh, Delhi for the last about 25 years along with her four sons out of which Suresh @ Nati has now expired. She has further deposed that her other sons are Rajesh, Santosh and Dinesh of whom Rajesh is residing separately at Badli and Santosh is also residing separately at Shalimar Bagh and only Suresh St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 17 and Dinesh used to reside with her. She has explained that she earned her living by ironing clothes and that Suresh @ Nati used to work as a daily wages labour and some times he used to help in ironing clothes. The witness has further deposed that her son Suresh @ Nati was an alcoholic and on 16.05.2011 her son Suresh @ Nati was at home only and went out somewhere at 11 AM while she was cooking food at home. The witness has also deposed that he returned at about 6 PM and came to her with two petticoats and told her to keep it. According to the witness, she found that he had consumed alcohol and scolded him and questioned him as to where he had been roaming through out the day and why he had brought the petticoats when she did not wear a saree. She picked up the petticoats and scolded him by saying that "chala ja ghar par mat ayo" (go away and don't come back home), on which he (Suresh @ Nati) went away being annoyed saying "mein ja raha hu" (I am going away). The witness has testified that on that day she waited for him till about 10:00 PM but he did not return and therefore she slept after taking her meals and on the next day morning at about 5:306AM some neighbours informed her that Suresh @ Nati was lying in the jhuggi cluster a little ahead of her house. She has further deposed that she was also told that he appeared to be intoxicated ("nashe mein"). According to her, when she came to know of it, she went to the direction and found that Suresh @ Nati was lying near the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 18 jhuggi of Rajeev and his chappals were lying near his body and blood was present on his nose and face. The witness has testified that she was told by persons standing around him not to touch him and later she noticed that there was blood on the back side of his hands and nails were having rubbing signs ("ragar laga hua tha") and there were some half broken bricks lying around his body and one match box. (19) With the permission of the Court leading questions were put to the witness by the Ld. Addl. PP for the State, during which the witness has admitted that two petticoats and blouses which Suresh @ Nati had brought for her were also recovered from his body from under his baniyan and has voluntarily explained that she was shown those clothes by the police. She further explained that when Suresh @ Nati had come to the house she only noticed two petticoats but when the police searched his body the two petticoats had also two blouses along with them of the same color. The witness has also deposed that initially, the body of her son was covered with a white cloth and it was later when the police searched after removing baniyan that these clothes were found.
(20) She has correctly identified the case property i.e. the petticoats (one of Indian Pink colour i.e. Rani Pink and another of orange colour) and two stitched blouses (one of Indian Pink colour i.e. Rani Pink and another of orange) which are collectively Ex.P1. (21) In her cross examination by the Ld. Defence Counsel, she St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 19 has deposed that her statement was recorded at her house itself and that she was not aware of any person with whom her son Suresh @ Nati had any dispute or any body who was inimical to him.
(22) PW15 Dinesh Kumar is the brother of the deceased who has deposed that he is 12th class pass and was residing at BG1 Jhuggi No. 54/211, Shalimar Bagh, Delhi along with his mother and doing the work of designing. He has further deposed that on 17.05.2011 he had identified the dead body of his brother Suresh @ Nati at BJRM hospital, Mortuary vide memo Ex.PW15/A. The witness has proved that after postmortem he received the body of his brother vide memo Ex.PW15/B. He has not been crossexamined by the Ld. Defence Counsel and hence his testimony has gone uncontroverted.
(23) PW16 Rajiv Kumar is a resident of the same area who has deposed that he was residing at BG 1 Jhuggi No. 54/121 East Shalimar Bagh Delhi alongwith with his family comprising of his parents, brother and sisterinlaw. He has further deposed that he was running a general grocery/ parchun shop from the said premises, which is situated on the front side and the jhuggi of Shambu,S/o Ram Avtar is situated in front of the said shop. According to him, on 17.05.2011 at about 6:30 AM when he got up, he saw a large number of persons in front of his shop and also saw accused Sanjeet in the crowd and they all were seeing something. He has testified that getting curious he went ahead and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 20 found the dead body of Suresh @ Nati lying there and thereafter he did not see Sanjeet. The witness has also deposed that it was on the third day that he saw Sanjeet with the police and came to know later that it was Sanjeet who had killed Suresh @ Nati. According to the witness, there were two jhuggies in front of his house one of Ram Avtar the father of Sanjeet and the other in which Shambhu was residing. He has testified that Sanjeet resided along with Ram Avtar but during the time of the incident his father Ram Avtar was not at home and had gone to his native village. According to him, his statement was recorded by the police at his jhuggi itself but he could not recollect the date. (24) During his cross examination by the Ld. Defence Counsel the witness has deposed that he was residing in the said jhuggi for the last ten years and that Suresh was known to him for the last two years. He has testified that Sanjeet who was residing next to his house was known to him for the last four years and has voluntarily explained that he was known to him casually as a neighbour but not too well. He has also deposed that Suresh @ Nati was not a "badmash" and has voluntarily added that he often consumed alcohol "khane pine wala tha". He is unable to tell whether Sanjeet is also an alcoholic and voluntarily stated that he often used to take eggs from his shop. He has denied being aware of any of the associates or friends of Suresh @ Nati. He has further deposed that on 16.05.2011 he had closed his shop at about 10 PM and did not hear any commotion till the time his shop was St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 21 open on 16.05.2011. He is unable to tell as to why Sanjeet was not residing with his brother and has voluntarily explained that he could guess that the family of Shambu had increased after his marriage and therefore he (Sanjeet) separated. According to the witness, he was not on visiting terms with Shambu and Sanjeet. He has admitted that many of the shops in the jhuggies were opened till 11 PM to about 12 midnight. He is however unable to tell whether large number of persons sleep outside in the jhuggies in the said area and has voluntarily explained that they slept by 10 PM. He has further deposed that after sleeping on 16.05.2011 he only woke up in the morning and not during the night. He has also admitted that he noticed no disturbance during the night. He has denied the suggestion that he did not notice Sanjeet in the morning along with other public persons near the body of the deceased or that he was making the statement on the tutoring of the police and has voluntarily explained that Sanjeet was in baniyan at that time. He has admitted that Sanjeet was standing there just as the other persons were standing.
(25) PW24 Santosh Kumar is the brother of the deceased who has deposed that he used to reside at N54/211, BG1 Block, East Shalimar Bagh, Delhi with his family and was doing the work of computerized graphing designing of printing press. According to him, they were four brothers and his eldest brother Rajesh was residing at Badli and he along with his other two brothers namely Suresh and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 22 Dinesh and his mother residing at the aforesaid address. He has deposed that his brother Suresh used to work as labour and also used to take liquor. He has testified that on 16.05.2011 at about 6 PM, his brother Suresh came at house after consuming liquor and was scolded by his mother and thereafter Suresh told that he was going to outside and would sleep outside and thereafter he went away from there. According to the witness on the next morning at about 5:45 AM when he came outside his house, he saw that many persons gathered in front of jhuggi No. P86, BG1 Block, East Shalimar Bagh on which he also reached there and found that his brother Suresh was lying there in dead condition and blood was found on his nose and mouth. Witness has further deposed that his mother had reached there after which he made call at 100 number from his mobile phone No. 9818232880 and PCR police reached at the spot and after five to six minutes local police from police station also reached the spot. According to the witness, police recorded his statement vide Ex.PW22/G and police conducted their proceedings. Witness has further deposed that SHO Insp. Veer Singh also reached the spot and crime team reached at the spot and they conducted the proceedings and took photographs. According to him, two brick pieces and one match box were lying near the dead body and one pair of slippers of rexene was also lying near the dead body and two pairs of blouse and petticoats were found under the baniyan (under shirt) of the deceased Suresh. Witness has also deposed that police kept the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 23 above said blouses and petticoats in a cloth pullanda and sealed the same with the seal of BSS and seized the same vide seizure memo Ex.PW22/B. According to him, the said sleepers were also kept in a cloth pullanda by the police and sealed the same with the same seal and seized vide seizure memo Ex.PW22/C and police also kept the above said two brick pieces in a cloth pullanda and sealed the same with the seal of BSS and seized vide memo Ex.PW22/D. Witness has also deposed that police also kept the match box in a cloth pullanda and sealed the same with the seal of BSS and seized vide memo Ex.PW22/E and police also lifted blood soaked soil from two places, one under the hand of the deceased and also lifted the blood soil near the neck and head of the deceased and kept the same in a separate plastic vials and sealed the same with the seal of BSS. According to him, police also lifted earth control from the spot and sealed the same in a plastic vial with the seal of BSS and police seized the above said blood soils and earth control, plastic vials vide seizure memo Ex.PW22/F. Witness has also deposed that the above said proceedings were conducted by SI Baljeet Singh in the presence of Ct. Abhimanyu and the seal was handed over to Ct. Abhimanyu by SI Baljeet Singh after use. According to the witness police also prepared the site plan of the spot and dead body of his brother Suresh was sent to BJRM hospital, Jahangirpuri, Delhi for postmortem. He has proved having identified dead body of his brother Suresh at BJRM hospital vide Ex.PW24/A. Witness has also deposed St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 24 that after postmortem he received the dead body of his brother. He has testified that dead body of his brother was found in front of Jhuggi No. P86, BG1, East Shalimar Bagh which was belonging to Shambhu and his brother Sanjeet Kumar. The witness has further deposed that he has not seen Sanjeet Kumar after the incident in the jhuggi and he ran away from there.
(26) He has correctly identified the accused Sanjeet in the Court in judicial custody and has correctly identified the case property i.e. two blouses and petticoats as Ex.P1 collectively; two half bricks which are Ex.P7 collectively; one match box containing match sticks which is Ex.P8 collectively and has also correctly identified one pair of rexene slippers which are Ex.P9 collectively. The witness has not been cross examined by the Ld. defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
Medical witnesses:
(27) PW25 Dr. V.K. Jha, Medical Officer from BJRM Hospital, Jahangirpuri has deposed that on 17.05.2011 he conducted the postmortem on the dead body of Suresh S/o Sh. Moti Lal Kanojia which body was sent by SHO Insp.Veer Singh of Police Station Shalimar Bagh.
He has further deposed that the clothes worn by the deceased were half pant, full pant, full shirt and baniyan. According to the witness, the body was moderate, rigormortis was present on the body; postmortem St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 25 staining was present at back; eyes were closed; conjuctivae was contested; cornea was hazy; mouth was closed and tongue was inside. The witness has proved that there were following external injuries on the body of the deceased:
(1) Pressure abrasion mark of size 3 cm X 2 cm on right side of the neck.
(2) Multiple scratch abrasion over right and left side of neck.
(3) Lacerated wound of size of size 3 cm X .5 cm to 2 cm X .5 cm X muscle deep on proximal phalanges of middle finger, ring finger and index finger of right hand.
(4) Lacerated wound on top of nose of size 4 cm X 1 cm X muscle deep.
(28) The witness has also proved that on internal examination, there was a bruising of neck tissues on right and left side and hematoma over right cornu of hyoid bone was found and there was fracture deformity of mid sternum. He has testified that after postmortem examination he opined that the cause of death was as a result of manual strangulation inflicted by other party; all injuries were ante mortem in nature and time since death was approx. 12 hrs. He has proved his detailed postmortem report which is Ex.PW25/A. The witness has proved that after postmortem, he handed over clothes, blood gauze piece, blood and viscera preserved in common salt and nail clippings of the deceased to the Investigating Officer in sealed condition St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 26 with the seal of hospital with sample seal. This witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
Forensic experts:
(29) PW17 Ms. Kavita Goyal, Senior Scientific Officer (Chemistry), FSL has deposed that on 07.06.11 one sealed wooden box (bearing PMR No. 467/11 dated 17.05.11, viscera of Suresh) sealed with the seal of FMT, BJRM HOSPITAL DELHI was received in her office in connection with case FIR No. 170/11 and was marked to her for examination. She has further stated that it contained three exhibits marked 1A (stomach and pieces of small intestine with contents kept in a sealed jar), 1B (pieces of liver, spline and kidney kept in a sealed jar) and 1C (blood sample volume approximately 10ml kept in a sealed vial.
According to the witness, on chemical microscopic and GCHS examination exhibits 1A,1B and 1C were found to contain ethyl alcohol and Exhibit 1C was found to contain ethyl alcohol 34.4 mg per 100 ml blood. She has proved that after examination the remnants of the exhibits were sealed with the seal of KG FSL DELHI and she put her specimen seal at point A on her detailed report Ex.PW17/A bearing her signatures at point B. In her crossexamination the witness has denied the suggestion that she prepared the report falsely at the instance of the Investigating Officer.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 27 (30) PW18 Ms. L. Babyto Devi, Senior Scientific Officer (Biology), FSL Rohini, deposed has that on 17.05.2011 on the request of SHO Police Station Shalimar Bagh, Insp. Veer Singh she attended the scene of crime at jhuggi No. 86 and Jhuggi No. 85 BG1, East Shalimar Bagh and thoroughly examined the scene of crime for presence of blood and other biological clue materials. According to her, after examination of the scene of crime, blood was detected on wall of jhuggi No. 86, floor in front of jhuggi No. 86, curtain of jhuggi No. 85, floor of jhuggi No. 85 and rajai cover of jhuggi No. 85. She has proved having prepared the crime scene report which is Ex.PW18/A. The witness has further deposed that on 06.06.2011 she had received seven sealed pullandas, Parcel No. 1 was sealed with the seal of BBS; Parcel No. 2 was sealed with the seal of FMT BJRM HOSPITAL, Delhi; Parcel No. 3 was the sample seal; Parcel No. 4 was sealed with the seal of VS; Parcel No. 5, 6, 7 and 8 were the sample seals. She has proved that after examination she prepared her report on biological examination of the exhibits which is Ex.PW18/B. According to her, she also conducted the serological examination and gave her serological report which is Ex.PW18/C. (31) In her cross examination by the Ld. Defence Counsel the witness has deposed that before leaving her office, she had informed her senior officer in writing about her visit to the scene of crime on the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 28 request of the SHO Police Station Shalimar Bagh. She has however denied the suggestion that she did not visit the scene of crime or that the report was prepared by her on the directions of the SHO while sitting in her office.
(32) PW23 D.S. Paliwal SSA (Biology), DNA Finger Printing Unit, FSL Rohini has deposed that on 02.06.2011 he received three parcels in sealed condition in case FIR No. 170/11, U/s 302/201 IPC, PS Shalimar Bagh and the seal was tallied and found correct. According to the witness, they had given the parcels as marking parcel No. 1, 3 and 4 and on opening the parcel No.1, he found one piece of gauze cloth described as gauze piece of deceased; on opening the parcel No. 3 he found a piece of gauze cloth described as blood in gauze vide serial No. 5A that was marked by concerned forwarding authority of police station and on opening the parcel No.4 he found a pillow having dark stains described as blood stained pillow. The witness has proved that source of exhibits 1, 3 and 4 were subjected to DNA isolation and DNA was isolated from the source of exhibits 1 and 4, however DNA could not be isolated from the source of exhibit 3. He has deposed that thereafter he prepared the DNA profile from the exhibit 1 & 4 and STR analysis was used for the sample and data was analyzed by him by using Genescan and Genemapper IDX software. He has proved having opined that the DNA profile from the source of exhibit P1 (gauze piece of deceased) and exhibit 4 (blood stained pillow) were similar in male origin. He St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 29 has also proved his DNA finger printing report in this regard which is Ex.PW23/A (running into two pages). The witness has further proved the Genotype data of exhibit 1 and 4 which is Ex.PW23/B and has deposed that the reports were handed over to the Investigating Officer with forwarding letter Ex.PW23/C bearing signatures of head of the division on behalf of their Director at point A. This witness has not been cross examined by the accused despite given opportunity and hence, his testimony has gone uncontroverted.
Police/ official witnesses:
(33) PW1 Ct. Subhash is a formal witness being the photographer of Crime Team who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 17.5.2011 he was posted as Photographer in Crime Team, NorthWest District and after receiving information he along with the Incharge of Crime Team SI Satpal reached the scene of crime i.e. Jhuggi No. P86, BG1, East Shalimar Bagh, Delhi where SHO Police Station Shalimar Bagh Inspector Veer Singh and SI Baljeet Singh along with other staff was present. The witness has proved that he took the photographs of the dead body and scene of crime from various angles on the direction of SHO Police Station Shalimar Bagh which photographs are Ex.PW1/A1 to Ex.PW1/A10 and their negatives are Ex.PW1/B collectively.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 30
(34) In his crossexamination the witness has deposed that on 17.5.2011 at around 6:30 AM he was informed by SI Satpal Singh and they reached the spot at about 7:00 AM. According to him, they went from from the spot at about 8:00 AM and his statement was recorded by the SHO before 8:00 AM. The witness has further deposed that no finger prints were lifted from the spot.
(35) PW2 W/ASI Manisha is the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.). She has deposed that on 17.05.2011 she was posted as Duty Officer in police station Shalimar Bagh from 8 AM to 4 PM and on that day Ct. Devender handed over her a rukka at 9:40 hours written by SI Baljeet Singh on the basis of which she written Kayami of FIR No. 170/11 U/s 302 IPC in Rojnamacha vide DD No. 11A dated 17.05.2011 and made endorsement on rukka after which she got the FIR registered through computer operator vide FIR No. 170/11 U/s 302 IPC. Witness has further deposed that after registering the FIR, the original rukka and copy of FIR were sent to SHO police station Shalimar Bagh Insp. Veer Singh through Ct. Devender for further investigation of the case. According to her other copies of FIR were sent to senior officers and to Ld. MM through special messenger Ct. Shokender. She has relied upon the documents i.e. copy of the FIR which is Ex.PW2/A; endorsement on the rukka which is Ex.PW2/B and Kayami DD no. 11A copy of which is Ex.PW2/C. St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 31 (36) In her cross examination the witness has deposed that she has signed this affidavit in the SEM court. According to her she had handed over the copy of FIR after registration to Ct. Devender at about 10:20 AM and at that time the SHO Insp. Veer Singh had already moved to the spot. Witness has denied the suggestion that she was deposing falsely.
(37) PW3 ASI Raghu Nath is also a formal witness being the PCR Incharge who has been examined by way of affidavit Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that in the intervening night of 1617.05.2011 he was posted as Incharge van Commender 33 North West Zone since 8 PM to 8AM and on 17.05.2011 he received a call at about 6/6:30 in the morning regarding BG1 Jhuggi No. 54, Shalimar Bagh, CALLER KE BHAI KA MURDER HO GAYA. According to the witness, he along with PCR van reached at place of occurrence i.e. opposite jhuggi No. BG1, P86, Shalimar Bagh, where caller met him and told him that some one had killed his brother Suresh S/o Moti Lal aged 25 years, R/o N54/211. Witness has testified that dead body of deceased was lying opposite jhuggi No. P86, Shalimar Bagh and there were injuries on the nose and on both hands of deceased and one pair of chappal was also lying near the dead body. According to him SI Baljeet Singh of local police reached at the spot along with staff and he informed the control room and senior officers about the facts of the call and SHO of police station Shalimar Bagh has written his St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 32 statement on 04.08.2011.
(38) In his cross examination by Ld. Defence counsel, the witness has deposed that he has signed the affidavit in SEM office at Jahangirpuri but the date he does not recollect and states that it was a Saturday. He is unable to tell the exact time but it is mentioned in the call book that he received the information at about 6 AM and within five to six minutes he reached at the spot. Witness has further deposed that the police officials including SI Baljeet Singh reached to the spot before them and they stayed at the spot for about 1015 minutes. He has testified that people of the colony has given the directions to reach to the spot i.e. jhuggi No. 86 and everything is mentioned in the call book. Witness has further deposed that perhaps SHO also reached at the spot in their presence and he does not exactly remember how many police officials were in the PCR van but it definitely more than two. According to him SHO Insp. Veer Singh had recorded his statement on 04.08.2011 in the police station and there were 1510 public persons around the spot. Witness has further deposed that he does not exactly remember in what sequence the chappal were lying.
(39) PW4 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 02.06.2011 in the evening on the request of the SHO police station Shalimar Bagh Insp. Veer Singh he reached jhuggies St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 33 BG1, East Shalimar Bagh where he took the measurement near jhuggi No. P86 and 85, where on 17.05.2011 the dead body of deceased Suresh @ Nati was found, for preparing the scaled site plan of scene of crime. According to him on 07.06.2011 he handed over the scaled site plan of scene of crime to SHO police station Shalimar Bagh Insp which site plan is Ex.PW4/A. (40) In his cross examination by Ld. Defence counsel, the witness has deposed that the present affidavit was signed in the office of SEM where he was called from his home for attestation. According to the witness, he had prepared the scaled site plan at the instance of Insp. Veer Singh who had pointed out the spot to him.
(41) PW5 Ct. Rajender is also a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 17.05.2011 he was posted at Police Station Shalimar Bagh and on that day at about 6:40 AM he along with SHO police station Shalimar Bagh reached the place of occurrence i.e. Jhuggi No. P86, BG1, East Shalimar Bagh, Delhi. According to him, after the site was inspected by the SHO of police station Shalimar Bagh and crime team, SHO directed him to take the body of deceased Suresh S/o Sh. Moti Lal R/o Jhuggi No. N54/211, BG1, Shalimar Bagh to the mortuary BJRM hospital Jahangirpuri, Delhi. He has testified that on the directions of SHO police station Shalimar Bagh he had taken the body of deceased Suresh to the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 34 mortuary BJRM hospital Jahangirpuri, Delhi and SHO Insp. Veer Singh along with SI Baljeet Singh reached in the mortuary and got the postmortem of deceased done and handed over the body of deceased to the relatives. According to him, the body of deceased remained in his custody till the postmortem in mortuary BJRM hospital Jahangirpuri, Delhi. This witness has not been cross examined by the Ld. Defence counsel despite opportunity in this regard and his testimony has gone uncontroverted.
(42) PW6 Ct. Shokender is a formal witness being the special messenger who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 17.05.2011 Duty Officer W/ASI Manisha gave him the copies of FIR No. 170/11 U/s 302 IPC and directed him to deliver the same to Ld. MM and senior officers. According to the witness, he departed from police station at about 10:30 AM by government motorcycle No. DL1SN4130 and delivered the copy of FIR to the residence of Ld. MM in Shalimar Bagh and on the residence of senior officers after which he came back in police station at about 5 PM in the evening and reported the facts to SHO police station Shalimar Bagh who had written his statement.
(43) In his cross examination by Ld. Defence counsel the witness has deposed that he had handed over the copy of FIR to Ld. MM at around 11 AM at the residence being a court holiday and after he St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 35 returned in the evening at 5:00 PM his statement was recorded by the investigating officer in the police station.
(44) PW7 HC Kewal is a formal witness who has been examined by way of affidavit Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.). He has deposed that on 02.06.2011 he was posted at police station Shalimar Bagh and on that day on the directions of SHO police station Shalimar Bagh he had taken four sealed pullandas from MHC(M) HC Mukesh. According to him, one pullanda containing blood in gauze piece of deceased and sealed with the seal of FMT BJRM hospital, Delhi; one sample seal of FMT BJRM hospital Delhi for blood in gauze piece; one parcel containing blood in gauze vide serial No. 5A sealed with the seal of VS and one parcel containing blood stained pillow sealed with the seal of VS. Witness has further deposed that he had taken all the above pullandas in FSL Rohini vide RC No.29/21/11 dated 20.06.2011 and he deposited all the pullandas in FSL Rohini vide FSL No. FSL/Rohini2011/DNA2905 dated 02.06.2011. According to the witness after depositing the above pullanda in FSL Rohini, he came back in the police station and handed over one copy of RC and FSL Receipt to MHC(M) HC Mukesh. The witness has testified that as long as the above pullandas remained in his custody, they remained very safe and secure and their seal remained intact and SHO of police station Shalimar Bagh recorded his statement on 02.06.2011.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 36 (45) In his cross examination by Ld. Defence counsel, the witness has deposed that on 02.06.2011 he had taken the parcels on the directions of Insp. Veer Singh which directions were oral. According to the witness, he had made the ravangi in the police station while leaving but he does not remember the DD number. The witness has deposed that his signatures were only taken at the FSL office when he handed over the parcels to them and obtained the receipt but not in any of the registers in the police station and has voluntarily explained that his statement was recorded by the Investigating officer. He has testified that he had signed on register No. 19 at the time when MHC(M) handed over the parcels to him. Witness has denied the suggestion that he has deposed falsely at the instance of the investigating officer. (46) PW8 HC Mukesh Chand has deposed that on 17.05.2011 he was posted as MHC(M) at Police Station Shalimar Bagh and on that day SI Baljeet Singh handed over to him six seizure memos and six pullandas which were duly sealed. According to him, out of these six pullandas five pullandas were sealed with the seal of BSS and one was a viscera box bearing the seal of the BJRM hospital and he deposited the same in the malkhana vide entry in register No. 19 vide entry No. 3662, copy of which entry is Ex.PW8/A. He has also deposed that on 19.05.2011 Insp. Veer Singh handed over five seizure memos to him and five sealed pullandas duly sealed with the seal of VS which he deposited in the malkhana vide entry No. 3663/11 copy of which is Ex.PW8/B. St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 37 The witness has also deposed that on 20.05.2011 Insp. Veer Singh handed over to him two seizure memos and two sealed pullandas duly sealed with the seal of VS which he deposited in the malkhana vide entry No. 3667/11, copy of which is Ex.PW8/C. He has testified that on 02.06.2011 on the directions of the SHO he handed over four sealed pullandas to HC Kewal for taking the same to FSL vide RC No. 29/21/11 and on 06.06.2011 HC Kewal had taken eight pullandas to FSL Rohini vide RC No. 34/21/11. He has also deposed that on 07.06.2011 he had taken the viscera peti to the FSL Rohini for depositing the same vide RC No. 35/21/11, copies of which RCs are Ex.PW8/D1 and Ex.PW8/D2. He has also proved the copy of RC No. 35/21/11 which is Ex.PW8/D3. The witness has testified that after depositing the same in the FSL HC Kewal handed over to him a copy of the RC and the original receipt of the FSL, copy of which FSL receipts are Ex.PW8/E1 to Ex.PW8/E3 which he had pasted in the register No. 21. He has proved that till the time the pullandas remained in custody of PW8, they were intact. He has stated that his statement was recorded thereafter by the investigating officer.
(47) In his cross examination, the witness has deposed that the signatures of the Investigating Officer were not taken on the register at the time of deposit of the parcels. He has admitted that he had not mentioned the time of deposit of the pullandas and also the time when they were taken out and handed over to HC Kewal. He has denied the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 38 suggestion that the entires had been made in routine after copying out the contents of the seizure memos at the instance of the investigating officer. He has deposed that there is no arrangement of cold storage in the malkhana and that the viscera peti. He has explained that the blood samples were kept in the malkhana itself.
(48) PW9 Ct. Uday Veer has deposed that on 17.05.2011 he was posted as Constable at Police Control Room as an operator and on that day at about 5:51 AM in the morning he received a telephone call from number 9818232880. He has deposed that he was sitting on channel No. 145 and the caller was saying that some person had murdered his brother. He has proved having filled up the PCR form which is Ex.PW9/A and forwarded the said call to Police Station Shalimar Bagh. The said witness has not been crossexamined by the Ld. Defence Counsel despite opportunity in this regard.
(49) PW19 SI Satpal Singh has deposed that on 17.05.2011 he was posted as Incharge, Crime Team, North West, Delhi and on that day after receiving the call from the control room of North West District, Delhi he alongwith photographer Ct. Subhash and Finger Print proficient reached at jhuggi No. P86, BG1, Shalimar Bagh, Delhi. According to the witness, Inspector Veer Singh was present there alongwith his staff and he found a dead body of one Suresh Kumar aged about 2425 years old, in front of the jhuggi. He has testified that he found blood on the neck and under the head of dead body and blood was St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 39 also oozing out from mouth and nose and there were injury marks on the finger and the blood was also lying under the right hand of the deceased. The witness has testified that he also found two half bricks, one pair of chappal and one match box near the dead body. He has further deposed that on the inspection of the dead body two pairs of blouse and petticoat of red and pink colour were found inside the wearing baniyan of the dead body. He has proved that Ct. Subhash took photographs of the scene of crime and after his inspection, he prepared his detailed inspection report which is Ex.PW19/A. (50) In his cross examination by the Ld. Counsel for the accused the witness has deposed that Ct. Sandeep, Finger print proficient also accompanied them at the spot and that no chance prints were lifted by him as the same were not found at the spot. He has testified that no chance print was lifted from the neck portion of the dead body and the finger prints specimen of the accused were not taken by the Investigating Officer in his presence at any time. The witness has further deposed that they remained at the spot from 7.00AM to 7.45AM and Investigating Officer was present at the spot during the time. He has also deposed that SI Baljeet and other staff of police station were also present at spot. He however denied the suggestion that he had prepared his report at the instance of the Investigating Officer.
(51) PW20 Ct. Devender Singh has deposed that on 17.05.2011 when he was posted as Constable at Police Station Shalimar Bagh, he St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 40 joined the investigations with SI Baljeet Singh and on receipt of DD No. 11B at about 5:57 AM they went to jhuggi No. P86, BG1 East Shalimar Bagh where they found a dead body of a male aged around 2425 years lying in front of jhuggi No. P86 with head on the west direction and legs on the eastern directions and there was blood lying under the neck on the dead body. He has also deposed that blood was lying under the finger of right hand; two half bricks and a ship matchbox were lying near the right hand and one pair rexene black colored chappal/ slippers were found near the left side legs of the accused. According to him, the blood had come out from the nose and mouth of the deceased which was dried and they also noticed injury marks on the fingers near the nails of the right hand. He has further testified that SI Baljeet thereafter carried out a casual search of the dead body and found two pairs of blouse and petticoats of red and pink color under the baniyan of the deceased. He has also deposed that in the meanwhile SHO Police Station Shalimar Bagh also reached the spot at about 6:40 AM and SI Baljeet gave him the entire information what he had seen at the spot after which SHO called the crime team. According to the witness, the crime team reached the spot at about 7:00 AM after which they inspected the spot of the incident till about 8:00 AM and in the meanwhile the brother of the deceased namely Santosh also came to the spot and identified the dead body as of his brother Suresh. The witness has also deposed that the brother of the deceased further informed that St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 41 they were four brothers and that the elder brother Rajesh used to reside in Badli, whereas Santosh, Dinesh and Suresh (deceased) used to reside in the jhuggies with their mother at P54/211. He has testified that Santosh also informed that the deceased Suresh used to do the work of baildari and also ironed the clothes and was alcoholic. The witness has also deposed that Rajesh further informed that on 16.05.2011 i.e. one day prior in the evening when Suresh came back home, he had already taken his food and had consumed alcohol (kha pi ke aya tha) and informed his family members that he was going outside and would sleep there only "bhar ja raha hu aur bahar hi so jaunga". The witness has further deposed that he also informed to the SHO that when he i.e. Santosh got up in the morning at about 5:45 AM he found that large number of persons had gathered outside jhuggi No. P86 and when out of curiosity he also went there to found out what had happened, he found that his brother Suresh was lying dead. The witness has further deposed that SI Baljeet thereafter recorded the statement of Santosh and converted the same into a rukka after which he handed over the tehrir to him for taking the same to the police station for registration of the case. He has proved that he left the spot at 9:30 AM and went to the police station where he reached at about 9:40 AM and handed over the tehrir to W/ASI Manisha, duty officer who after registration of the case handed over to him the computer copy of the FIR and the original tehrir which he brought back to the spot at about 10:40 AM and handed over the same to St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 42 the SHO Insp. Veer Singh. According to him, he stayed at the spot till 11:00 AM and thereafter returned to the police station where his statement was recorded.
(52) In his cross examination by the Ld. Defence Counsel the witness has deposed that he did not make any separate departure entry when he left the police station and was on duty from 8:00 PM to 8:00 AM. According to him, they reached the spot of incident on a private two wheeler scooter of SI Baljeet and when they reached the spot, there were around 2025 public persons, mostly ladies present at the spot. He has admitted that when they reached the spot they did not know about the details of the deceased and has voluntarily explained that none of the public persons present at the spot told them who the deceased was. According to him, they met Santosh after about ten minutes of their reaching the spot. He has deposed that SI Baljeet had lifted the exhibits but he was not sure since he was asked by SI Baljeet to keep away the public persons from the scene of crime. He has admitted that his signatures had not taken by SI Baljeet or by the SHO. The witness has testified that when he first saw the dead body, the face of the dead body was towards the sky. According to the witness, the half bricks lying near the dead body were slightly away from the hand but not touching the dead body. He has denied the suggestion that he did not visit the scene of crime along with SI Baljeet or that for this reason his signatures were not present on any of the documents drawn up at the spot. He has also St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 43 denied the suggestion that he has deposed falsely on the directions of the investigating officer and all proceedings had been conducted while sitting in the police station.
(53) PW21 SI Rattan Kumar has deposed that on 19.05.2011 he was posted at Police Station Shalimar Bagh and on that day he joined the investigation with Inspector Veer Singh. According to him, at about 12.00 Noon he alongwith Inspector Veer Singh reached in front of jhuggi no. P86, BG1, East Shalimar Bagh, Delhi. He has testified that FSL expert Ms. Babyto Devi from FSL Rohini Delhi was already present there and at the instance of Inspector Veer Singh Ms. Babyto Devi inspected the site which was already kept preserved. The witness has further deposed that FSL expert lifted the blood stains from the wall of eastern side of the jhuggi P86 from the inside from two places with plaster and the same was kept in an envelop and thereafter kept in a polythene and the same was kept in a cloth pullanda and was marked as 1A. He has proved that the expert also lifted earth control from the same wall and kept the same in an envelop and thereafter kept the same in a polythene and cloth pullanda was marked as 2A and thereafter from the place of incident in front of the jhuggi P86 blood stained earth was lifted and the same was kept in an envelop and thereafter kept the same in a polythene and the pullanda was prepared of the same and the same marked as 3A. The witness has deposed that the Jhuggi no. P86 was belonging to one Shambhu and they reached the jhuggi No. P85 of Ram St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 44 Avtar adjoining to the jhuggi of Shambhu. He has also deposed that the door of the jhuggi was found closed with a latch/ kundi and one lock in open condition was hanging on the kundi. The witness has testified that they opened the door of the jhuggi and inspected the jhuggi from inside and FSL expert found blood stains on the curtains of the main entry of the jhuggi. He has also deposed that the FSL expert took into possession the blood stains on the curtain after cutting the blood stained spots from the curtain and the same were also kept in an envelop and thereafter kept in a polythene and the remaining curtain was kept in a red coloured polythene and the cloth pullanda of both the polythene was prepared and the same was marked as 4A. According to him, FSL expert also lifted blood spot with the help gauze from the floor of the jhuggi and the same was kept in an envelop and the same was kept in a polythene and one cloth pullanda was prepared and the same was marked as 5A. The witness has further deposed that blood stains were also found on the quilt (Rajai) cover and FSL expert also kept the same in a polythene of red colour and cloth pullanda was prepared and the same was marked as 6A. He has also deposed that all the pullandas were sealed by Inspector Veer Singh with the seal of VS. The witness has proved that Inspector Veer Singh seized the pullanda no. 1A and 2A vide memo Ex.PW21/A; Pullanda no. 3A was seized vide seizure memo Ex.PW21/B; Pullanda no. 4A was seized vide memo Ex.PW21/C; St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 45 pullanda no. 5A was seized vide memo Ex.PW21/D and the pullanda no. 6A was seized vide seizure memo Ex.PW21/E. The witness has also deposed that private photographer Narender was present during the above said proceedings and was taking photographs at the spot and at the evening time he handed over the photographs to the Investigating Officer who seized the same vide seizure memo Ex.PW21/F. (54) The witness SI Rattan Kumar has further deposed that he again joined the investigation with Inspector Veer Singh on 20.05.2011 and on that day he along with Inspector Veer Singh, HC Kewal, Ct. Abhimanyu, Ct. Ajay, HC Umed Pal and driver Kuldeep were going to police station and near the Jhulelal Mandir at about 5.45PM one person gave signal to stop their police Gypsy. He has also deposed that Inspector Veer Singh met that person and thereafter Inspector Veer Singh called him and HC Umed Pal and briefed them that he received a secret information that the person who committed the murder four day ago in the jhuggi of BG1 area, was sitting in the Baccha Park. According to him, pursuant to the said information he alongwith Inspector Veer Singh and HC Umed Pal went inside the Baccha Park and the Investigating Officer directed other police officials to supervise the gate of the park after briefing the secret information to them also. He has proved that at the instance of secret informer they apprehended one person who was sitting on a bench under the constructed Chhatri who disclosed his name as Sanjeet Kumar. The witness has also St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 46 deposed that Inspector Veer Singh interrogated Sanjeet Kumar and on sustained interrogation he confessed that he committed the murder of Suresh in the intervening night of 1617.05.2011. He has proved that Inspector Veer Singh arrested the accused Sanjeet Kumar vide Ex.PW21/G and his personal search was conducted vide memo Ex.PW21/H. According to the witness, the disclosure statement of the accused was recorded by the Investigating Officer vide Ex.PW21/J and thereafter the accused Sanjeet pointed out the jhuggi No. P85, BG1, Shalimar Bagh where he had committed murder of Suresh @ Nati and also pointed out the place in front of jhuggi no. P86 where he had thrown the dead body pursuant to which pointing out memo was prepared by the Investigating Officer vide Ex.PW21/K. According to the witness, thereafter at the instance of accused Sanjeet they reached at a dustbin near the wall of DDA Flats on the way to Sahipur Village from where at the instance of the accused one pillow was recovered which was having blood stains and they tried to search for the news papers but the same could not be recovered. The witness has testified that the said pillow was kept in a cloth pullanda by the Investigating Officer and the same was sealed with the seal of VS and was seized vide seizure memo Ex.PW21/L. He has also deposed that the Investigating Officer prepared the site plan of the place of recovery of pillow and thereafter they again came at the jhuggi of Sanjeet at P85 where the accused Sanjeet produced his wearing pant, shirt, underwear and baniyan (on which St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 47 there was a washed blood stain) to the Investigating Officer and disclosed that he was wearing these clothes at the time of incident. According to PW21, the said clothes were kept in a cloth pullanda by the Investigating Officer who sealed the same with the seal of VS and seized the same vide seizure memo Ex.PW21/M which seal after use was handed over to him (witness). The witness has proved that the accused Sanjeet again made another disclosure statement that in front of his jhuggi and the same was recorded by the Investigating Officer vide Ex.PW21/N wherein he had disclosed that after committing the murder he went to the jhuggi of Shambhu at P86 to inform him about the incident but after entering the jhuggi he was not having sufficient courage to tell about the incident to his brother Shambhu and his other family member and without telling the fact he returned to his jhuggi. He has testified that the accused Sanjeet produced one electricity bill in the name of his father Ram Avtar about the ownership of jhuggi no. P85 and the same was seized by the Investigating Officer vide seizure memo Ex.PW21/O which electricity bill is Ex.PW21/P. He has also testified that photographer Narender was called at jhuggi No. P86 who took photographs of the slab inside the jhuggi on the walls. According to the witness, Photographer Narender handed over two photographs to the Investigating Officer at police station who seized the same vide seizure memo Ex.PW21/Q. The witness has deposed that the Investigating Officer recorded his statement. He has correctly identified the accused St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 48 Sanjeet in the court and has also identified the case property i.e. blood stained plaster taken from the wall and earth control which is Ex.P2; blood lifted from the jhuggi of the accused which is Ex.P3; blood stained curtain taken from the Jhuggi of the accused which is Ex.P4; blood stained quilt cover taken from the jhuggi of the accused Sanjeet which is Ex.P5; clothes of the accused Sanjeet i.e. pant, shirt, underwear and baniyan which are collectively Ex.P6 and the pillow got recovered by the accused which pillow is Ex.P7.
(55) In his cross examination by the Ld. Defence Counsel the witness has deposed that he was informed by the SHO about the secret information which he had received from the informer. According to the witness, he along with Insp. Veer Singh reached the jhuggi No. P86 in official vehicle i.e. Gypsy and the expert from the FSL had been called by the SHO. The witness has also deposed that the SHO did not join any public witness at the time when the blood stains had been lifted by the FSL expert from the wall of the eastern side of the jhuggi. He has admitted that the area was thickly populated and there were other jhuggies in the vicinity. He has deposed that Shambu and Ram Avatar were not present at the time when blood stains were lifted and has voluntarily explained that they were told that Ram Avatar had gone to his native village and Shambhu was not present in his jhuggi. He has denied the suggestion that anybody could have entered the jhuggi as the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 49 lock was open and has voluntarily deposed that the spot of the incident had been preserved as the beat staff had been posted there to preserve the same. According to the witness, in his presence Insp. Veer Singh did not reduce the secret information into writing and did not convey the same to the senior officers. He has however admitted that Baccha park is maintained by the Municipal Corporation. The witness has deposed that he did not find any chowkidar on the gate of the park or mali in the park. He has also admitted that there were large number of public persons including children in the park. According to him, they all were in uniform at that time and large number of crowd had gathered when they apprehended Sanjeet but no public witness was joined at the time when the accused was being interrogated and has voluntarily explained that the Investigating Officer had requested public witnesses to join but as soon as the request was made, they went away from the spot. According to him, the residential area was away from the park and therefore the Investigating Officer did not join any public witness from the residential area. He has denied the suggestion that the accused was not apprehended from the park or that the accused had never confessed about his involvement in the present case and made no disclosure. The witness has also denied the suggestion that the disclosure Ex.PW22/J had been written by the Investigating Officer of his own or that all the documents of arrest, search, disclosure seizure etc. were prepared by the Investigating Officer while sitting in the police station and he only St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 50 signed the same on his directions. He has further denied that the quilt, pillow and other articles were planted at the spot after which the spot of the incident was manipulated and created only to work out the present case.
(56) PW22 SI Baljeet has deposed that on 17.05.2011 he was posted at police station Shalimar Bagh as Sub Inspector and on that day he was on duty from 8PM to 8AM and at about 5:57AM he was handed over DD No. 11B by the duty officer regarding a dead body lying in front of jhuggi No. P86, BG 1 Block, East Shalimar Bagh, which DD is Ex.PW22/A. According to him, on receipt of said DD he along with Ct. Devender reached the spot of incident where they found a dead body of a male aged around 2425 years lying in front of jhuggi No. P86 with blood under the neck on the dead body. The witness has deposed that they also noticed blood under the finger on the right hand and injury marks on the fingers and also on the face i.e. mouth and nose with dry blood on the same. He has further deposed that two half bricks and a ship matchbox were lying near the right hand, one pair of plastic chappal/ slippers were found near the left side legs. The witness has testified that thereafter he carried out a casual search of the dead body and found two pairs of blouse and petticoats of red and pink color under the baniyan of the deceased. He has also deposed that they met the complainant Santosh Kumar at the spot itself and informed them that he was the brother of the deceased and had made a telephone call to the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 51 police station. According to the witness, he immediately informed the senior officers and in the meanwhile he took into possession the two half bricks, the matchbox, the two petticoats and two blouses. He has proved having converted these articles into five pullandas with the help of cloth and sealed the same with the seal of BSS after which he prepared the seizure memos. The witness has proved the seizure memo of the blouse and petticoats which is Ex.PW22/B; seizure memo of the chappal which is Ex.PW22/C; seizure memo of two half bricks which is Ex.PW22/D and seizure memo of the matchbox which is Ex.PW22/E. He has also proved having lifted the blood lying under the finger of the dead body and of the earth control and converted the same into pullanda and sealed the same with the seal of BBS. According to the witness, he gave the blood sample lifted from under the fingers as serial No.1, the blood lifted from under the neck of the dead body was given serial No. 2 and the earth control were given serial No. 3 after which all these pullandas were converted into pullanda and sealed the same with the seal of BSS and thereafter he seized the same vide seizure memo Ex.PW22/F. According to the witness, meanwhile the SHO Police Station Shalimar Bagh, Insp. Veer Singh also reached the spot at about 6:40 AM and he briefed the SHO after which he called the crime team who reached the spot at about 7 AM and remained there till about 8 AM. He has testified that he thereafter interrogated Santosh Kumar and recorded his statement who informed him that they were four brothers, the elder St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 52 brother resided in Badli, whereas Santosh, Dinesh and Suresh deceased used to reside in the jhuggies with their mother at jhuggi in the same area. The witness has also deposed that Santosh Kumar informed that the deceased Suresh was a daily wages labour and was a habitual alcoholic and on 16.05.2011 i.e. one day prior in the evening when Suresh came back home, he was drunk and thereafter informed that he was going out and would sleep out ("bhar ja raha hu aur wahin so jaunga"). Santosh Kumar further informed him (witness) that next day when he got up in the morning at about 5:45 AM he found that large number of persons gathered outside jhuggi No. P86 and when out of curiosity he went there to find out what had happened, he found that his brother Suresh was lying dead on which he made a telephone call to the police. He has proved having recorded the statement of Santosh Kumar which is Ex.PW22/G bearing his endorsement which is Ex.PW22/H which he handed over the same to Ct. Devender who took the same to the police station for registration of the case. The witness has also proved that he thereafter handed over the copy of the tehrir along with pullandas and seizure memos prepared by him to the SHO and thereafter on the pointing out of Santosh, the SHO prepared the site plan. According to him, after some time Ct. Devender returned to the spot at about 10:40 AM and handed over to the SHO the original tehrir and copy of the FIR after which the SHO filled up the FIR number in the various seizure memos and documents prepared by him (witness). He St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 53 has also deposed that the dead body was thereafter sent to BJRM Hospital through Ct. Rajender. He has proved having recorded the statement of Dinesh and Santosh regarding identification of the dead body after which the postmortem of the dead body was conducted. According to the witness, the doctor at BJRM Hospital handed over to him sealed viscera peti, sample seal, sealed pullanda containing the clothes of the deceased and sealed blood sample of the deceased, all of which were sealed with the seal of FMT BJRM HOSPITAL and he handed over all those articles to the SHO who prepared the seizure memo of the same which is Ex.PW22/I. The witness has further deposed that the dead body was handed over to his relatives and thereafter he returned to the police station where his statement was recorded.
(57) He has correctly identified the case property i.e. two petticoats, one of Indian pink colour and other of orange colour and two stitched blouses which are collectively Ex.P1; two half bricks found lying near the hand of the deceased which are Ex.P7; matchbox make ship containing match sticks which is Ex.P8 and a pair of rexene chappals of black colour which were found lying near the leg of the deceased which are Ex.P9. However it has been observed by this Court that no blood stains were present on any of the above exhibits. St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 54 (58) In his cross examination by the Ld. Defence Counsel the witness has deposed that he did not make any separate departure entry when he left the police station and has voluntarily explained that he had gone on receipt of the DD from the Duty Officer. The witness has also deposed that he reached the spot of the incident on his private two wheeler scooter and whey they reached the spot, there were around 1520 public persons. According to the witness, at the time when they reached the spot, only Santosh was present from the family of the deceased and has voluntarily explained that his mother came later on. The witness has also deposed that when they reached the spot, they came to know there itself that the deceased was the brother of Santosh. According to him, he did not interrogate any of the public persons present at the spot and has voluntarily explained that he only interrogated Santosh. He has also admitted that he could not find any traces of dangerous weapon like knife, pistol or cartridge lying at the spot and it appeared that the deceased had been hit by something. He has admitted that the half bricks produced in the court did not bear any blood stains and that he did not notice any smell of alcohol coming from the dead body. The witness has also deposed that he did not find any bottle, glass or any other article indicating that the deceased might be consuming alcohol. He has further deposed that as soon as he reached the spot, Santosh met him and the mother of the deceased came after about half an hour along with Dinesh. PW22 has admitted that he came St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 55 to know that the deceased was a habitual alcoholic and his family was also fed up of his habit. He has deposed that he did not make any inquiries to find out if there was any dispute of the deceased with his brothers or any other family members. According to the witness, he did not make any inquiries from Santosh or other persons present at the spot if the dead body had been shifted or disturbed before they had reached the spot. He has denied the suggestion that the scene of crime had been disturbed before they reached the spot or that he did not carry out the investigations properly. The witness has further denied the suggestion that he has wrongly deposed at the instance of the investigating officer or that all the documentations were done while sitting in the police station.
(59) PW26 Insp.Veer Singh is the Investigating Officer who has deposed that on 19.05.2011 he received a telephonic information from the Duty Officer about the recovery of a dead body of a male boy aged about 2425 years in front of Jhuggi No. P86, BG1, East Shalimar Bagh, Delhi. According to the witness, pursuant to the said information he immediately reached there at about 6:40 AM where SI Baljit alongwith the staff was present. The witness has testified that he found the dead body of male boy and there was a blood on his nose and mouth and blood was also present on the ground and two petticoats and two blouses were found inside of his baniyan and pair of slippers and two brick pieces and one match box was also lying at the spot near the dead St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 56 body. He has also deposed that after registration of the FIR, he received the copy of FIR and original rukka for further investigation pursuant to which SI Baljeet handed over all the seized articles and documents to him. According to him, crime team officials already reached the spot and he recorded their statements after which the dead body was sent to the BJRM Hospital through Ct. Rajinder. He has further deposed that he reached at BJRM Hospital whereas SI Rattan Kumar and other beat staff were directed by be remained at the spot. He has proved having prepared the inquest documents Ex.PW26/A and having recorded the statement of Dinesh Kumar and Santosh Kumar about identification of dead body which are Ex.PW15/A and PW24/A respectively which. The witness has also proved that he prepared the brief facts which are Ex.PW26/B; the request for postmortem which is Ex.PW26/C and after postmortem, dead body was handed over to the relatives of the deceased Suresh. He has also deposed that after postmortem, doctor handed over one wooden box containing viscera of the deceased, one parcel containing clothes of deceased, one envelop containing blood gauze piece of the deceased and two sample seals to him which he seized vide memo Ex.PW22/J. The witness has also deposed that he again reached the spot and prepared the site plan at the instance of SI Baljeet Singh which site plan is Ex.PW26/D. He has also deposed that thereafter he reached at the Police Station and deposited all seized articles in the Malkhana and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 57 recorded the statement of witnesses.
(60) According to the Investigating Officer, he along with SI Rattan Kumar, HC Umed Singh, HC Kewal Singh reached at in front of Jhuggi No.P86, BG1, East Shalimar Bagh, Delhi where FSL expert Ms. Babyto Devi from FSL Rohini Delhi was already present there and at his instance Ms. Babyto Devi inspected the site which was already kept preserved. He has deposed that the expert lifted blood stains from the wall of eastern side of the jhuggi P86 from the inside from two places with plaster and the same was kept in an envelop and thereafter kept in a polythene and the same was kept in a cloth pullanda and was marked as 1A; Expert also lifted earth control from the same wall and kept the same in an envelop and thereafter kept the same in a polythene and cloth pullanda was marked as 2A; blood stained earth was lifted from the place of incident in front of the jhuggi P86 and the same was kept in an envelop and thereafter kept the same in a polythene and the pullanda was prepared of the same and the same marked as 3A. According to the Investigating Officer, the jhuggi no. P86 belonged to one Shambhu after which they reached jhuggi No. P85 of Ram Avtar adjoining to the jhuggi of Shambhu. He has deposed that the door of the jhuggi was found closed and there was a kundi which was closed and one lock in open condition was hanging on the kundi. The witness has further deposed that they opened the door of the jhuggi and inspected the jhuggi from inside and FSL expert found blood stains on the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 58 curtains of the main entry of the jhuggi. He has also deposed that the FSL expert took the possession of the blood stains on the curtains after cutting the blood stained spots from the curtain and the same were also kept in an envelop and thereafter kept in a polythene and the remaining curtain was kept in a red coloured polythene and the cloth pullanda of both the polythenes was prepared and the same was marked as 4A; FSL expert also lifted blood spot with the help gauze from the floor of the jhuggi and the same was kept in an envelop and the same was kept in a polythene and one cloth pullanda was prepared and the same was marked as 5A; Blood stains were also found on the quilt (Rajai) cover and FSL expert also kept the same in a polythene of red colour and cloth pullanda was prepared and the same was marked as 6A. He has proved that all the pullandas were sealed by him with the seal of VS and having seized the pullanda no. 1A and 2A vide seizure memo Ex.PW21/A. The witness has also proved having seized the pullanda no. 3A vide seizure memo Ex.PW21/B; having seized the pullanda no. 4A vide seizure memo Ex.PW21/C; pullanda no. 5A vide seizure memo Ex.PW21/D and pullanda no. 6A vide seizure memo Ex.PW21/E. He has also testified that private photographer Narender was present during the above said proceedings and was taking photographs at the spot and at the evening time photographer Narender handed over the photographs to him which he seized vide seizure memo Ex.PW21/F. He has proved St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 59 having recorded statement of witnesses and having deposited all the seized articles in the Malkhana.
(61) Inspector Veer Singh (PW26) has further deposed that on 20.05.11, he alognwith SI Rattan Kumar, HC Kewal, Ct. Abhimanyu, Ct. Ajay, HC Umed Pal and driver Kuldeep were going to police station and near the Jhulelal Mandir at about 5.45PM his secret informer gave signal to him to stop the police Gypsy. According to the witness, he met the secret informer who informed him that the assailant who had committed the murder of Suresh was present in Baccha Park. The witness has deposed that he briefed his staff about the secret information and thereafter he along with SI Rattan Kumar and HC Umed Pal went inside the Baccha Park and on his directions, other police officials supervise the gate of the park after briefing the secret information to them also. He has also deposed that thereafter at the instance of secret informer they apprehended one person who was sitting on a bench under the constructed Chhatri. According to him, the said person disclosed his name as Sanjeet Kumar after which he (witness) interrogated Sanjeet Kumar and on sustained interrogation the accused confessed that he had committed the murder of Suresh in the intervening night of 1617.05.2011. The witness has proved having arrested the accused Sanjeet Kumar vide Ex.PW21/G and his personal search was taken vide Ex.PW21/H after which the disclosure statement of the accused was recorded by him vide Ex.PW21/J. According to the witness, thereafter St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 60 at the instance of accused Sanjeet they reached at jhuggi No. P85, BG1, Shalimar Bagh where the accused had committed murder of Suresh @ Nati and the accused pointed out the place in front of jhuggi no. P86 where he had thrown the dead body pursuant to which pointing out memo was prepared by him vide Ex.PW21/K. He has also deposed that thereafter at the instance of accused Sanjeet they reached at dustbin near the wall of DDA Flats on the way to Sahipur Village and at the instance of the accused one pillow was recovered which was having blood stains and they tried to search for the news papers but the same could not be recovered. He has proved that the pillow was kept in a cloth pullanda and the same was sealed with the seal of VS and he seized the same vide seizure memo Ex.PW21/L. He has also proved having prepared the site plan of the place of recovery of pillow vide Ex.PW26/E. The witness has further deposed that thereafter they again came at the jhuggi of Sanjeet at P85 and the accused Sanjeet produced his wearing pant, shirt, underwear and baniyan to him and disclosed that he was wearing these clothes at the time of incident. According to him, there was a washed blood stain on the baniyan and the said clothes were kept in a cloth pullanda by him and sealed the same with the seal of VS and seized the same vide seizure memo Ex.PW21/M. He has testified that the seal after use was handed over to SI Rattan Kumar. The witness has also deposed that accused Sanjeet made another disclosure statement in front of his jhuggi which is Ex.PW21/N wherein the accused had St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 61 disclosed that after committing the murder he went to the jhuggi of Shambhu at P86 to inform him about the incident but after entering the jhuggi he was not having sufficient courage to tell about the incident to his brother Shambhu and his other family member and without telling the fact he returned to his jhuggi. According to the witness, accused Sanjeet produced one electricity bill in the name of his father Ram Avtar about the ownership of jhuggi no. P85 which was seized by him vide seizure memo Ex.PW21/O which electricity bill is Ex.PW21/P. He has further deposed that the photographer Narender was called at jhuggi No. P86 who took photographs of the slab inside the jhuggi on the walls and handed him over two photographs at police station which he seized vide seizure memo Ex.PW21/Q. The witness has also deposed that the accused Sanjeet was taken to the BJRM Hospital for medical examination and after his medical examination, he collected his MLC. According to the witness, during his investigation, scaled site plan was got prepared through Insp.Manohar Lal vide Ex.PW4/A and collected the same. The witness has also proved having collected the photographs from the crime team photographer; the PCR Forms and also collected the DNA finger printing report. According to him, exhibits of this case were sent to the FSL, Rohini for expert opinion after which he collected the FSL results. He has proved having recorded the statements of witnesses and after completion of investigation, he submitted the charge sheet of accused Sanjeet Kumar.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 62 (62) He has correctly identified the accused Sanjeet Kumar and also the case property i.e. blood stained plaster taken from the wall and earth control which is Ex.P2; blood stained gauze piece containing blood lifted from the spot by the FSL team from the jhuggi of the accused which is Ex.P3; blood stained curtain taken from Jhuggi of the accused which is Ex.P4; blood stained quilt cover taken from the Jhuggi of the accused Sanjeet which is Ex.P5; clothes of the accused Sanjeet i.e. pant, shirt, underwear and baniyan which are Ex.P6 and one pillow recovered at the instance of the accused Sanjeet Kumar which is Ex.P10. (63) In his cross examination the witness has admitted that he reached at the spot after SI Baljeet. According to him, SI Baljeet had not prepared pullanda of the seized articles at the spot when he reached at the spot at about 6:40 AM. He has testified that he was present at the spot but SI Baljeet conducted his proceedings separately at the spot and the pullandas were not prepared by SI Baljeet in his presence. He has admitted that he also inspected the dead body on the spot and states that he did not record the statement of SI Baljeet and other witnesses at the spot. He does not remember the placing of the head and legs of the deceased at the spot and has voluntarily deposed that he had mentioned the same in the site plan. The witness has also admitted that SI Baljeet had already prepared the pullandas of the articles found at the spot before he took over the investigation. According to the witness, he St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 63 found injuries on the nose, mouth and hands of the deceased and has voluntarily stated that he had mentioned the same in the inquest documents. He has further deposed that SI Rattan was with him when he reached at the spot on 17.05.11 but did not participate in the investigation. According to him, SI Rattan also remained at the spot when he left for BJRM Hospital for postmortem for maintaining the 'Law and Order'. He has also stated that the secret informer met him at about 5:45 pm on 20.05.11 but did not disclose name of the accused to him while giving information. The witness has admitted that identity of the accused by face was not known to him prior and he could not tell whether the identity of accused was known to his team members and has voluntarily stated that accused Sanjeet was missing from the date of incident from his Jhuggi. He has denied the suggestion that he prepared the site plan of the place where accused was arrested. According to him, he asked public persons to join the investigation in the park but they did not join the investigation. The witness has also testified that he interrogated the accused Sanjeet in the Baccha Park and recorded his disclosure statement there and also admitted that at the time of recording of disclosure statement of accused, no public persons joined the investigation. He has denied the suggestion that accused Sanjeet was called at Police Station and falsely implicated in this case and that is why, no public persons were present when his disclosure statement was recorded. The witness has denied the suggestion that accused has not St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 64 pointed out the place of incident or that he had prepared the same at the Police Station. According to the witness, he asked public persons to join the investigations at the place of incident during pointing out by the accused but none agreed. He has denied the suggestion that all the documents were prepared at the Police Station or that accused did not point out the place that is why, no public persons participated in the police proceedings. He has admitted that place of incident is a thickly populated area. He has denied the suggestion that deceased Suresh received injuries by falling on the sharp edged slab due to imbalance under the influence of liquor. According to him, he deposited the seized pullandas in the Malkhana himself on 19.05.11. He does not remember the exact date when the exhibits of this case was sent to the FSL but states that the same were sent after obtaining the priority letter. He has testified that there was no freezer system in the Malkhana. According to the witness, seal was handed over to SI Rattan Kumar after the sealing of pullanda but he did not prepare any memo in respect of handing over the seal to SI Rattan nor does he remember the exact time and states that it was before lunch when he went to the BJRM Hospital. He has denied that he had not conducted the investigation fairly or that he has deposed falsely.
STATEMENT OF THE ACCUSED/ DEFENCE EVIDENCE:
(64) After completion of the prosecution evidence the statement of the accused Sanjeet Kumar was recorded under Section 313 Cr.P.C.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 65
wherein all the incriminating material was put to him which the accused has denied. According to the accused, he is innocent and has been falsely implicated by the police only to work out the present case. He has stated that he has nothing to do with the alleged incident. He has not lead any evidence in his defence despite opportunity. FINDINGS:
(65) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
PUBLIC WITNESSES:
1. Shambhu He is the brother of the accused and has deposed on the
(PW10) following aspects:
1. That on 16.05.2011 his father had gone to the village and accused Sanjeet who is his younger brother was in his jhuggi which was also near to his (witness's) jhuggi.
2. That on the intervening night of 16/17.05.2011 at around 6 AM large number of persons had gathered at the jhuggies and people were talking that somebody had expired.
3. That the dead body of Kalu (Suresh @ Nati) who was residing in neighbouring jhuggi was lying in front of St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 66 his door.
4. That there were signs of injuries on the body of the deceased on the nose and face on which they called the pardhan who telephoned the police.
5. That Sanjeet had escaped from the spot when the crowd had gathered and was apprehended on the third day.
6. That Sanjeet had informed that he had killed Kalu on which police had apprehended him (usne kaha tha maine usko, Kalu ko, mara hai to police ne usko pakar liya).
7. That on the day police arrested Sanjeet they had taken the photocopy of the ration card when the police informed him about arrest of Sanjeet. He has proved the arrest memo of accused Sanjeet which is Ex.PW10/A.
2. Asha Ram He is a resident of the same area and is the neighbour of (PW11) the accused as well as the deceased. He has deposed as under:
1. That on 16.05.2011 at about 1111:30 AM Suresh @ Nati who was his friend had given Rs.100/ to him for the purchase of liquor on which he purchased an "adda" (half liquor bottle) and thereafter he along with Suresh @ Nati consumed alcohol first at the jhuggi and thereafter at Beri wala park.
2. That at the park they purchased another "adda" and meat where they were also joined by another boy by the name of Johny a resident of the same jhuggi and at about 44:30 PM they all returned to their jhuggies.
3. That when they reached the jhuggies, one pheriwala came who was selling clothes and Suresh @ Nati purchased took two petticoats of pink colour and blouses of red colour for his mother.
4. That in his presence Suresh did not pay to pheriwala and thereafter he came back to the park while Suresh returned to his jhuggi.
5. That Suresh @ Nati again came in the park during the late evening hours when it became dark and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 67 wanted to consume more alcohol to which he (witness) refused and told him that he was going to jhuggies to sleep and thereafter both of them returned to their jhuggies cluster.
6. That he saw Suresh @ Nati going towards the jhuggi of Sanjeet and entering his jhuggi while he himself returned to his own jhuggi and slept outside on a takhat.
7. That on the next day morning he was woken up by the police and brought near the house of Shambu where the body of Suresh @ Nati was lying and a large number of persons had gathered at the spot and it was then that he came to know that Suresh @ Nati was dead.
3. Suresh Chander He is the pheriwala/ street hawker from whom the (PW12) deceased Suresh @ Nati had snatched the clothes. This witness has deposed on the following aspects:
1. That he was doing the job of selling clothes i.e. petticoat and blouse on a pheri on his cycle.
2. That on 16.05.2011 at about 4:305:00 PM he was on a pheri at BG1 Shalimar Bagh jhuggies and was selling clothes on his cycle.
3. That at that time two boys approached him and took two petticoats make century and two ready made blouses but they did not pay for the same and snatched both the petticoats forcibly from him.
4. That he told them not to snatch the same and to make payment for the same but they told him that they did not have the money and insisted that they would make the payment on the next day.
5. That he normally went to the area, twothree times a week to sell his goods and used to sell his articles on payment of cash and it was for the first time that somebody had snatched the clothes like this and gone away without making the payment.
6. That on the next day he again went on pheri to that area and came to know that one of the boys who had taken the clothes had been murdered on which he met the police at the spot and told the police that the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 68 deceased was the boy who had taken the clothes from his pheri.
7. That he also saw another boy with the police and identified him to be the same boy who was with the other boy who had snatched the clothes from his cycle and informed this fact to the police.
He has correctly identified the clothes i.e. the petticoats (one of Indian Pink colour i.e. Rani Pink and another of orange colour) and two stitched blouses (one of Indian Pink colour i.e. Rani Pink and another of orange) which had been forcibly taken by the boys from his cycle pheri which clothes are collectively Ex.P1.
4. Narender Kumar He is the private photographer who has deposed as under:
(PW13) 1. He is running a photo studio under the name and style of Ritu Digital Studio at main road Shalimar Village since 2008.
2. That on 19.05.2011 SHO Police Station Shalimar Bagh had given him a telephone call and asked him to come at BG1 jhuggies at Shalimar Bagh on which he went to BG1 East Shalimar Bagh jhuggies and on the pointing out of the police officers, he took certain photographs of a jhuggi by digital camera which photographs are Ex.PW13/A1 to Ex.PW13/A3.
3. That on 20.05.2011 he was called by the SI Rattan Kumar to the same jhuggi cluster and was asked to take the photographs of a different spot from inside the jhuggi by a digital camera which photographs are Ex.PW13/B1 to Ex.PW13/B2.
5. Smt. Chameli She is the mother of the deceased who has deposed on the Devi (PW14) following aspects:
1. That she earned her living by ironing clothes and that Suresh @ Nati used to work as a daily wages labour and some times he used to help in ironing clothes.
2. That her son Suresh @ Nati was an alcoholic and on 16.05.2011 her son Suresh @ Nati was at home only and went out somewhere at 11 AM while she was cooking food at home.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 69
3. That Suresh @ Nati returned at about 6 PM and came to her with two petticoats and told her to keep it.
4. That she found that Suresh @ Nati had consumed alcohol and scolded him and questioned him as to where he had been roaming through out the day and why he had brought the petticoats when she did not wear a saree.
5. That she picked up the petticoats and scolded him by saying that "chala ja ghar par mat ayo" (go away and don't come back home), on which he (Suresh @ Nati) went away being annoyed saying "mein ja raha hu" (I am going away).
6. That on that day she waited for him till about 10:00 PM but he did not return and therefore she slept after taking her meals.
7. That on the next day morning at about 5:306AM some neighbours informed her that Suresh @ Nati was lying in the jhuggi cluster a little ahead of her house and appeared to be intoxicated ("nashe mein").
8. That when she came to know of it, she went to the direction and found that Suresh @ Nati was lying near the jhuggi of Rajeev and his chappals were lying near his body and blood was present on his nose and face.
9. That she was told by persons standing around him not to touch him and later she noticed that there was blood on the back side of his hands and nails were having rubbing signs ("ragar laga hua tha") and there were some half broken bricks lying around his body and one match box.
10. That two petticoats and blouses which Suresh @ Nati had brought for her were also recovered from his body from under his baniyan and has voluntarily explained that she was shown those clothes by the police.
She has correctly identified the case property i.e. the petticoats (one of Indian Pink colour i.e. Rani Pink and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 70 another of orange colour) and two stitched blouses (one of Indian Pink colour i.e. Rani Pink and another of orange) which are collectively Ex.P1.
6. Dinesh Kumar He is the brother of the deceased who has proved that on (PW15) 17.05.2011 he had identified the dead body of his brother Suresh @ Nati at BJRM hospital, Mortuary vide memo Ex.PW15/A. The witness has also proved that after postmortem he received the body of his brother vide memo Ex.PW15/B.
7. Rajiv Kumar He is a resident of the same area and has deposed as (PW16) under:
1. That he is running a general grocery/ parchun shop from the said premises, which is situated on the front side and the jhuggi of Shambu, S/o Ram Avtar is situated in front of the said shop.
2. That on 17.05.2011 at about 6:30 AM when he got up, he saw a large number of persons in front of his shop and also saw accused Sanjeet in the crowd and they all were seeing something.
3. That getting curious he went ahead and found the dead body of Suresh @ Nati lying there and thereafter he did not see Sanjeet.
4. That it was on the third day that he saw Sanjeet with the police and came to know later that it was Sanjeet who had killed Suresh @ Nati.
5. That there were two jhuggies in front of his house one of Ram Avtar the father of Sanjeet and the other in which Shambhu was residing.
6. That Sanjeet resided along with Ram Avtar but during the time of the incident his father Ram Avtar was not at home and had gone to his native village.
According to him, his statement was recorded by the police at his jhuggi itself but he could not recollect the date.
8. Santosh Kumar He is the brother of the deceased who has deposed on the (PW24) following aspects:
1. That they were four brothers and his eldest brother Rajesh was residing at Badli and he along with his St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 71 other two brothers namely Suresh and Dinesh and his mother residing at N54/211, BG1 Block, East Shalimar Bagh, Delhi.
2. That his brother Suresh used to work as labour and also used to take liquor.
3. That on 16.05.2011 at about 6 PM, his brother Suresh came at house after consuming liquor and was scolded by his mother and thereafter Suresh told that he was going to outside and would sleep outside and thereafter he went away from there.
4. That on the next morning at about 5:45 AM when he came outside his house, he saw that many persons gathered in front of jhuggi No. P86, BG1 block, East Shalimar Bagh on which he also reached there and found that his brother Suresh was lying there in dead condition and blood was found on his nose and mouth.
5. That his mother had reached there after which he made call at 100 number from his mobile phone No. 9818232880 and PCR police reached at the spot and after five to six minutes local police from police station also reached the spot.
6. That police recorded his statement vide Ex.PW22/G and conducted their proceedings.
7. That SHO Insp. Veer Singh also reached the spot and crime team reached at the spot and they conducted the proceedings and took photographs.
8. That two brick pieces and one match box were lying near the dead body and one pair of slippers of rexene was also lying near the dead body and two pairs of blouse and petticoats were found under the baniyan (under shirt) of the deceased Suresh.
9. That police kept the above said blouses and petticoats in a cloth pullanda and sealed the same with the seal of BSS and seized the same vide seizure memo Ex.PW22/B.
10. That the said sleepers were also kept in a cloth pullanda by the police and sealed the same with the same seal and seized vide seizure memo Ex.PW22/C. St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 72
11. That police also kept the above said two brick pieces in a cloth pullanda and sealed the same with the seal of BSS and seized vide memo Ex.PW22/D.
12. That police also kept the match box in a cloth pullanda and sealed the same with the seal of BSS and seized vide memo Ex.PW22/E.
13. That police lifted blood soaked soil from two places, one under the hand of the deceased and also lifted the blood soil near the neck and head of the deceased and kept the same in a separate plastic vials and sealed the same with the seal of BSS.
14. That police also lifted earth control from the spot and sealed the same in a plastic vial with the seal of BSS and police seized the above said blood soils and earth control, plastic vials vide seizure memo Ex.PW22/F.
15. That the above said proceedings were conducted by SI Baljeet Singh in the presence of Ct. Abhimanyu and the seal was handed over to Ct. Abhimanyu by SI Baljeet Singh after use.
16. That the police also prepared the site plan of the spot and dead body of his brother Suresh was sent to BJRM hospital, Jahangirpuri, Delhi for postmortem.
17. That he identified the dead body of his brother Suresh at BJRM hospital vide Ex.PW24/A and after postmortem he received the dead body of his brother.
18. That dead body of his brother was found in front of Jhuggi No. P86, BG1, East Shalimar Bagh which was belonging to Shambhu and his brother Sanjeet Kumar.
19. That he had not seen Sanjeet Kumar after the incident in the jhuggi and he ran away from there.
MEDICAL EVIDENCE
9. Dr. V. K. Jha He is the Autopsy Surgeon who has proved that on (PW25) 17.05.2011 he conducted the postmortem on the dead body of Suresh S/o Sh. Moti Lal Kanojia vide his report Ex.PW25/A. According to the witness, the body was moderate, rigormortis was present on the body;
postmortem staining was present at back; eyes were St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 73 closed; conjuctivae was contested; cornea was hazy; mouth was closed and tongue was inside. The witness has proved that there were following external injuries on the body of the deceased:
1. Pressure abrasion mark of size 3 cm X 2 cm on right side of the neck.
2. Multiple scratch abrasion over right and left side of neck.
3. Lacerated wound of size of size 3 cm X .5 cm to 2 cm X .5 cm X muscle deep on proximal phalanges of middle finger, ring finger and index finger of right hand.
4. Lacerated wound on top of nose of size 4 cm X 1 cm X muscle deep.
The witness has also proved that on internal examination, there was a bruising of neck tissues on right and left side and hematoma over right cornu of hyoid bone was found and there was fracture deformity of mid sternum. He has further proved that the cause of death was as a result of manual strangulation inflicted by other party; all injuries were antemortem in nature and time since death was approx. 12 hrs. The witness has also proved that after postmortem, he handed over clothes, blood gauze piece, blood and viscera preserved in common salt and nail clippings of the deceased to the Investigating Officer in sealed condition with the seal of hospital with sample seal.
FORENSIC EVIDENCE:
10. Ms. Kavita This witness has proved the viscera report which is Goyal, (PW17) Ex.PW17/A and has deposed as under:
Senior Scientific 1. That on 07.06.11 one sealed wooden box (bearing Officer PMR No. 467/11 dated 17.05.11, viscera of Suresh) (Chemistry), FSL sealed with the seal of FMT, BJRM HOSPITAL DELHI was received in her office in connection with case FIR No. 170/11 and was marked to her for examination.
2. That it contained three exhibits marked 1A (stomach and pieces of small intestine with contents kept in a St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 74 sealed jar), 1B (pieces of liver, spline and kidney kept in a sealed jar) and 1C (blood sample volume approximately 10ml kept in a sealed vial.
3. That on chemical microscopic and GCHS examination exhibits 1A,1B and 1C were found to contain ethyl alcohol and Exhibit 1C was found to contain ethyl alcohol 34.4 mg per 100 ml blood.
4. That after examination the remnants of the exhibits were sealed with the seal of KG FSL DELHI.
11. Ms. L. Babyto This witness has proved the following aspects:
Devi (PW18) 1. That on 17.05.2011 on the request of SHO Police Senior Scientific Station Shalimar Bagh, Insp. Veer Singh she attended Officer (Biology), the scene of crime at jhuggi No. 86 and Jhuggi No. 85 FSL, Delhi BG1, East Shalimar Bagh and thoroughly examined the scene of crime for presence of blood and other biological clue materials.
2. That after examination of the scene of crime, blood was detected on wall of jhuggi No. 86, floor in front of jhuggi No. 86, curtain of jhuggi No. 85, floor of jhuggi No. 85 and rajai cover of jhuggi No. 85.
3. That she prepared the crime scene report which is Ex.PW18/A.
4. That on 06.06.2011 she had received seven sealed pullandas, Parcel No. 1 was sealed with the seal of BBS; Parcel No. 2 was sealed with the seal of FMT BJRM HOSPITAL, Delhi; Parcel No. 3 was the sample seal; Parcel No. 4 was sealed with the seal of VS; Parcel No. 5, 6, 7 and 8 were the sample seals.
5. That after examination she prepared her report on biological examination of the exhibits which is Ex.PW18/B.
6. That she also conducted the serological examination and gave her serological report which is Ex.PW18/C.
12. D.S. Paliwal This witness has deposed as under:
(PW23), SSA 1. That on 02.06.2011 he received three parcels in (Biology), DNA sealed condition in case FIR No. 170/11, U/s 302/201 Finger Printing IPC, PS Shalimar Bagh and the seal was tallied and Unit, FSL Rohini found correct.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 75
2. That they had given the parcels as marking parcel No. 1, 3 and 4 and on opening the parcel No.1, he found one piece of gauze cloth described as gauze piece of deceased; on opening the parcel No. 3 he found a piece of gauze cloth described as blood in gauze vide serial No. 5A that was marked by concerned forwarding authority of police station and on opening the parcel No.4 he found a pillow having dark stains described as blood stained pillow.
3. That source of exhibits 1, 3 and 4 were subjected to DNA isolation and DNA was isolated from the source of exhibits 1 and 4, however DNA could not be isolated from the source of exhibit 3.
4. That thereafter he prepared the DNA profile from the exhibit 1 & 4 and STR analysis was used for the sample and data was analyzed by him by using Genescan and Genemapper IDX software.
5. That he had opined that the DNA profile from the source of exhibit P1 (gauze piece of deceased) and exhibit 4 (blood stained pillow) were similar in male origin vide DNA finger printing report in this regard which is Ex.PW23/A (running into two pages) and the Genotype data of exhibit 1 and 4 is Ex.PW23/B.
6. That the reports were handed over to the Investigating Officer with forwarding letter Ex.PW23/C. POLICE/ OFFICIAL WITNESSES (Proving investigations)
13. Ct. Subhash He is a formal witness being the photographer of Crime (PW1) Team who has proved that on 17.5.2011 after receiving information he along with the Incharge of Crime Team SI Satpal reached the scene of crime i.e. Jhuggi No. P86, BG1, East Shalimar Bagh, Delhi where SHO Police Station Shalimar Bagh Inspector Veer Singh and SI Baljeet Singh along with other staff was present and he took the photographs of the dead body and scene of crime from various angles on the direction of SHO Police Station Shalimar Bagh which photographs are Ex.PW1/A1 to Ex.PW1/A10 and their negatives are Ex.PW1/B collectively.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 76
14. W/ASI Manisha She is also a formal witness being the Duty Officer who (PW2) has proved the copy of FIR which is Ex.PW2/A;
endorsement on the rukka which is Ex.PW2/B and Kayami DD No. 11A copy of which is Ex.PW2/C.
15. ASI Raghu Nath He is a formal witness being the PCR Incharge who had (PW3) reached the spot after received information. He has deposed on the following aspects:
1. That on 17.05.2011 he received a call at about 6/6:30 in the morning regarding BG1 Jhuggi No. 54, Shalimar Bagh, CALLER KE BHAI KA MURDER HO GAYA.
2. That he along with PCR van reached at place of occurrence i.e. opposite jhuggi No. BG1, P86, Shalimar Bagh, where caller met him and told him that some one had killed his brother Suresh S/o Moti Lal aged 25 years, R/o N54/211.
3. That dead body of deceased was lying opposite jhuggi No. P86, Shalimar Bagh and there were injuries on the nose and on both hands of deceased and one pair of chappal was also lying near the dead body.
4. That SI Baljeet Singh of local police reached at the spot along with staff and he informed the control room and senior officers about the facts of the call.
16. SI Manohar Lal He is a formal witness being the Draftsman who has (PW4) proved having prepared the scaled site plan of scene of crime which site plan is Ex.PW4/A.
17. Ct. Rajender He is also a formal witness who has deposed as under:
(PW5) 1. That on 17.05.2011 at about 6:40 AM he along with SHO police station Shalimar Bagh reached the place of occurrence i.e. Jhuggi No. P86, BG1, East Shalimar Bagh, Delhi.
2. That after the site was inspected by the SHO of police station Shalimar Bagh and crime team, SHO directed him to take the body of deceased Suresh S/o Sh. Moti Lal R/o Jhuggi No. N54/211, BG1, Shalimar Bagh to the mortuary BJRM hospital Jahangirpuri, Delhi.
3. That on the directions of SHO police station Shalimar Bagh he had taken the body of deceased Suresh to the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 77 mortuary BJRM hospital Jahangirpuri, Delhi and SHO Insp. Veer Singh along with SI Baljeet Singh reached in the mortuary and got the postmortem of deceased done and handed over the body of deceased to the relatives.
4. That the body of deceased remained in his custody till the postmortem in mortuary BJRM hospital Jahangirpuri, Delhi.
18. Ct. Shokender He is a formal witness being the special messenger who (PW6) has proved that on 17.05.2011 he delivered the copies of FIR No. 170/11 U/s 302 IPC at the residence of Ld. MM in Shalimar Bagh and the residence of senior officers.
19. HC Kewal (PW7) He is a formal witness who has proved that on 02.06.2011 on the directions of SHO police station Shalimar Bagh he took four sealed pullandas from MHC(M) HC Mukesh and deposited all the pullandas in FSL Rohini vide FSL No. FSL/Rohini2011/DNA2905 dated 02.06.2011.
20. HC Mukesh He is the MHCm who has proved the various entries in Chand (PW8) register No. 19 which are Ex.PW8/A to Ex.PW8/C; copies of RC which are Ex.PW8/D1 & Ex.PW8/D2 and copies of the FSL receipts which are Ex.PW8/E1 to Ex.PW8/E3.
21. Ct. Uday Veer He is a formal witness being the PCR official who has (PW9) proved that on 17.05.2011 at about 5:51 AM in the morning he received a telephone call from number 9818232880 that some person had murdered his brother. He has proved having filled up the PCR form which is Ex.PW9/A and forwarded the said call to Police Station Shalimar Bagh.
22. SI Satpal Singh He is the Crime Team Incharge who has deposed that on (PW19) 17.05.2011 after receiving the call from the control room of North West District, Delhi he alongwith photographer Ct. Subhash and Finger Print proficient reached at jhuggi No. P86, BG1, Shalimar Bagh, Delhi where Inspector Veer Singh was present there alongwith his staff and he found a dead body of one Suresh Kumar aged about 2425 St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 78 years old, in front of the jhuggi. He has proved having inspected the scene of crime and having prepared his detailed inspection report which is Ex.PW19/A.
23. Ct. Devender This witness had accompanied SI Baljeet Singh to the spot (PW20) where they found the dead body of the deceased. He has proved having taken the rukka to the Police Station and after getting the FIR registered, he came back to the spot and handed over the original rukka and copy of FIR to Inspector Veer Singh.
24. SI Rattan Kumar This witness has proved having joined investigations with (PW21) Inspector Veer Singh on 19.5.2011 and 20.5.2011. He has proved the following proceedings:
1. That on 19.5.2011 at about 12.00 Noon he alongwith Inspector Veer Singh reached in front of jhuggi no.
P86, BG1, East Shalimar Bagh, Delhi (belonging to Shambhu, the brother of the accused).
2. That FSL expert Ms. Babyto Devi from FSL Rohini Delhi was already present there and at the instance of Inspector Veer Singh Ms. Babyto Devi inspected the site which was already kept preserved.
3. That FSL expert lifted the blood stains from the wall of eastern side of the jhuggi P86 from the inside from two places with plaster and the same was kept in an envelop and thereafter kept in a polythene and the same was kept in a cloth pullanda and was marked as 1A.
4. That the expert also lifted earth control from the same wall and kept the same in an envelop and thereafter kept the same in a polythene and cloth pullanda was marked as 2A.
5. That from the place of incident in front of the jhuggi P86 blood stained earth was lifted and the same was kept in an envelop and thereafter kept the same in a polythene and the pullanda was prepared of the same and the same marked as 3A.
6. That they reached the jhuggi No. P85 of Ram Avtar adjoining to the jhuggi of Shambhu and the FSL St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 79 expert found blood stains on the curtains of the main entry of the jhuggi.
7. That the FSL expert took into possession the blood stains on the curtain after cutting the blood stained spots from the curtain and the same were also kept in an envelop and thereafter kept in a polythene and the remaining curtain was kept in a red coloured polythene and the cloth pullanda of both the polythene was prepared and the same was marked as 4A.
8. That FSL expert also lifted blood spot with the help gauze from the floor of the jhuggi and the same was kept in an envelop and the same was kept in a polythene and one cloth pullanda was prepared and the same was marked as 5A.
9. That blood stains were also found on the quilt (Rajai) cover and FSL expert also kept the same in a polythene of red colour and cloth pullanda was prepared and the same was marked as 6A.
10. That all the pullandas were sealed by Inspector Veer Singh with the seal of VS.
11. That Inspector Veer Singh seized the pullanda no. 1A and 2A vide memo Ex.PW21/A; Pullanda no. 3A was seized vide seizure memo Ex.PW21/B; Pullanda no. 4A was seized vide memo Ex.PW21/C; pullanda no.
5A was seized vide memo Ex.PW21/D and the pullanda no. 6A was seized vide seizure memo Ex.PW21/E.
12. That private photographer Narender was present during the above said proceedings and was taking photographs at the spot and at the evening time he handed over the photographs to the Investigating Officer who seized the same vide seizure memo Ex.PW21/F. The witness has proved having again joined the investigation with Inspector Veer Singh on 20.05.2011 and has proved the following documents:
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 80
Ex.PW21/G Arrest memo of the accused
Ex.PW21/H Personal search memo of the accused
Ex.PW21/J Disclosure statement of the accused
Ex.PW21/K Pointing out memo
Ex.PW21/L Seizure memo of the pillow
Ex.PW21/M Seizure memo of the clothes of accused
Ex.PW21/N Another disclosure statement of
accused
Ex.PW21/O Seizure memo of electricity bill
Ex.PW21/P Electricity bill
Ex.PW21/Q Seizure memo of the photographs
25. SI Baljeet Singh He is the initial Investigating Officer who has proved the (PW22) following documents:
Ex.PW22/A DD No. 11B
Ex.PW22/B Seizure memo of the blouse and
petticoats
Ex.PW22/C Seizure memo of chappal
Ex.PW22/D Seizure memo of two half bricks
Ex.PW22/E Seizure memo of the matchbox
Ex.PW22/F Seizure memo of blood samples lifted
from the spot
Ex.PW22/G Statement of Santosh Kumar
Ex.PW22/H Endorsement on statement of Santosh
Kumar
Ex.PW22/I Seizure memo of the pullandas handed
over by the doctor
26. Inspector Veer He is the subsequent Investigating Officer of this case and
Singh (PW26) apart from the documents proved by the various witnesses,
he has proved the following documents:
Ex.PW26/A Inquest papers
Ex.PW26/B Brief facts
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 81
Ex.PW26/C Request for postmortem
Ex.PW26/D Site plan
Ex.PW26/E Site plan of the place of recovery of
pillow
(66) Coming now to the microscopic evaluation of the evidence
against the accused Sanjeet Kumar.
Identity of the accused:
(67) In so far as the identity of the accused is concerned, I may
note that the same is not disputed. The accused Sanjeet Kumar was previously known to the deceased Suresh @ Nati and his family being a resident of the same area. Even otherwise he has been correctly identified by the various prosecution witnesses including his own brother. In view of the above I hereby hold that the identity of the accused Sanjeet Kumar has been established.
Ocular evidence/ Last seen/ Allegations against the accused:
(68) Ocular evidence/ eye witness count is the best evidence in any case. However, unfortunately in the present case there is no ocular evidence and the only evidence which has come on record is the last seen and circumstantial.
(69) The case of the prosecution is that the deceased Suresh @ Nati was a compulsive alcoholic and often consumed alcohol even on the day, the death of the deceased had occurred (intervening night of St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 82 1617.5.2011) it is alleged that deceased Suresh @ Nati had consumed alcohol during the day along with his friend Asha Ram. Thereafter, in the evening on the way back to his Jhuggi they met a pheriwala/ street hawker from whom they snatched two petticoats and two blouses without making the payment of the same which clothes, the deceased Suresh @ Nati took to his house and gave to his mother. However, noticing his condition Suresh @ Nati was reprimanded by his mother after which he left his house along with the said clothes and again went to the park where he met Asha Ram and asked him (Asha Ram) to join him for drinks but Asha Ram refused and thereafter they both went back to the jhuggies from where Asha Ram went to his own jhuggi where he slept outside on the takhat whereas the deceased Suresh @ Nati went to the Jhuggi of accused Sanjeet Kumar. On the next day morning the dead body of Suresh @ Nati was found in front of the jhuggi of Shambhu who is the real brother of the accused Sanjeet Kumar which jhuggi of Shambu is situated just adjoining the jhuggi of the accused Sanjeet. The deceased Suresh @ Nati was last seen alive by the witness Asha Ram while the deceased entering the Jhuggi of accused Sanjeet Kumar.
(70) In this regard the prosecution has placed its reliance on the testimony of Asha Ram (PW11) who was the friend of the deceased and with whom the deceased had consumed alcohol during the day.
Reliance has also been placed on the testimony of the street Hawker Suresh Chander (PW12) who has corroborated the testimony of Asha St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 83 Ram and had identified the deceased as the boy who along with another boy (Asha Ram) had snatched the clothes he was selling i.e. two petticoats and two blouses which clothes were recovered from the body of the deceased. They have also placed their reliance on the testimony of the mother of the deceased namely Chameli Devi (PW14) who has supported the version of the prosecution and proved that the deceased had come home in the evening at around 6:00 PM in an intoxicated condition and gave her two petticoats and blouses on which she reprimanded him after which the deceased left the house and thereafter did not return. Before analyzing the evidence on record it is necessary to discuss the law relating to last seen which is briefly discussed as under:
(71) The 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(72) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 84 incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].
(73) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
(74) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities.
The principle is well settled. The provisions of Section St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 85 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras,
218. ..."
(75) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under: St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 86
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(76) Now applying the settled principles of law to the facts of the present case, coming first to the testimony of Asha Ram (PW11). The relevant portion of his testimony is as under:
"....... On 16.05.2011 at about 1111:30 AM Suresh @ Nati who was my friend had given me Rs 100/ for the purchase of liquor. On this I purchased an "adda" and thereafter I along with Suresh @ Nati consumed alcohol first at the jhuggi and thereafter at Beri wala park. At the park we purchased another "adda" and meat where we were also joined by another boy by the name of Johny who is also resident of the same jhuggi and at about 44:30 PM we returned to our jhuggies. When we reached the jhuggies one pheriwala came. He was selling clothes. Suresh @ Nati purchased took two petticoats and blouses for his mother. The blouse of red color and the peticoat was of pink color. In my presence Suresh did not pay to peheriwala and I came back to the bagh while he returned to his jhuggi. Suresh @ Nati again came in the park during the late evening hours when it became dark St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 87 and wanted to consume more alcohol. I refused and told him and now I went to jhuggies to sleep on this both of us returned to our jhuggies cluster. I saw Suresh @ Nati going towards the jhuggi of Sanjeet and I saw him entering his jhuggi while I returned to my own jhuggi and slept outside on a takath. On the next day morning I was woken up by the police and brought near the house of Shambu where the body of Suresh @ Nati was lying. A large number of persons had gathered at the spot and it was then that I came to know that Suresh @ Nati was dead. There was blood was on his nose and face. Some stones were lying around his body. I was brought to the police station. My statement was recorded by the police in the police station...."
(77) The facts which are borne out from the testimony of Asha Ram (PW11) are as under:
➢ That on 16.05.2011 at about 1111:30 AM the deceased Suresh @ Nati had given Rs 100/ to Asha Ram for the purchase of liquor on which he purchased a half bottle of liquor and he along with the deceased had consumed alcohol first at the jhuggi and thereafter at Beri wala park.
➢ That there in the park they (i.e. Asha Ram and Suresh @ Nati) were also joined by another boy namely Johny and at about 44:30 PM they returned to their jhuggies.
➢ That while they were coming back they met one pheriwala who was selling clothes and the deceased Suresh @ St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 88 Nati purchased took two petticoats and blouses for his mother which were of red and pink color but did not make any payment to him and thereafter Asha Ram returned to his Jhuggi.
➢ That Suresh @ Nati again came in the park during the late evening hours and wanted to consume more alcohol on which Asha Ram refused and told him that he went to go back on which both of them (Asha Ram and Suresh @ Nati) returned to Jhuggi. ➢ That Asha Ram saw Suresh @ Nati going towards the jhuggi of accused Sanjeet and entering his jhuggi while he himself to his own jhuggi and slept outside on a takath. (78) Coming next to the testimony of Suresh Chander (PW12) who is the street hawker from whom the deceased had purchased the petticoat and blouse without making payment for the same. The relevant portion of his testimony is under:
"....... I am residing on the aforementioned address along with my family comprising of my wife, two children i.e. one son and one daughter. I am doing the job of selling clothes i.e. petticoat and blouse on a pheri on my cycle. On 16.05.2011 at about 4:305PM I was on a pheri at BG1 Shalimar Bagh jhuggies and selling clothes on my cycle. That time two boys approached to me and they took two petticoats make century and two ready made blouses. They did not pay for the same and snatched both the petticoats forcibly from me. I St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 89 told them not to snatch the same and that I would give it to them. I told them to make the payment for the same they told me that they did not have the money and insisted that they would make the payment on the next day. I normally go to the area, twothree times a week to sell my goods and I sell my articles on payment of cash and it was for the first time that somebody had snatched the clothes like this and gone away by not making the payment. Next day I again went on pheri to that area and came to know that one of the boy who had taken the clothes had been murdered and I met the police at the spot. I told the police that the deceased was the boy who had taken the clothes from my pheri. I also saw another boy with the police and identified him to be the same boy who was with the other boy who had snatched the clothes from my cycle and I informed this to the police. I can identify the petticoats and blouses which had been forcibly taken by the boys from my cycle pheri.
At this stage, the MHC(M) has produced one sealed parcel duly sealed with the seal of BSS. Same is broken and opened and found to contain two petticoats one of Indian pink color (rani pink) and another of orange(santri) color and two stitched blouses one of Indian pink color (Rani Pink) and another of orange (santri) color. Same are shown to the witness who correctly identified the same and same are collectively EX P1..."
(79) Suresh Chander (PW12) has been crossexamined at length wherein he has admitted that the clothes produced in the Court are easily St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 90 available in the market but he could identify them after touching them on account of their quality and has explained that the petticoats were of Century Cloth and the blouses were of "teri rubia". He has explained that he had never seen those boys (who had snatched the clothes) prior to the incident and also did not raise any alarm since he was informed by the ladies who were making purchases from him that the said boys were the local badmash of the area and they also advised him to leave or else the said boys could also take away his articles on which he quickly tied the other clothes and went away. The witness Suresh Chander has also explained that one of the boy had caught hold of his hair when he asked them to make the payment and hence feeling apprehensive he left the spot. He has further explained that on the next day when he was passing through the area he had met the police at the spot itself. On a query from the Court the witness has explained that when the boys came to him they were completely drunk and one of them was tall whereas other was short and it was the short boy who had caught hold of his hairs. He has further explained that the entire incident lasted for about 1015 minutes. The aspects which are specifically borne out from the testimony of this witness Suresh Chander (PW12) are culled out as under:
➢ That Suresh Chander is a street hawker by profession and is regularly selling the stitched clothes including petticoat and blouse on a cycle.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 91
➢ That on 16.05.2011 at about 4:305PM Suresh Chander was on a pheri at BG1 Shalimar Bagh jhuggies when two boys who were drunk had come to him and snatched two stitched petticoats and two blouses of red and pink colour but did not pay for the same.
➢ That on the next day when Suresh Chander again returned to the area on his pheri he came to know that one of the boy who had taken the clothes had been murdered on which he met the police at the spot and informed them that he could identify the deceased (i.e. Suresh @ Nati) was the boy who had taken the clothes from his pheri.
➢ That Suresh Chander also saw another boy with the police (i.e. Asha Ram) and identified him as the same boy who was with the deceased and had snatched clothes from his cycle.
(Independent corroboration to the testimony of Asha Ram that he and deceased had consumed alcohol and deceased had also snatched the clothes from the hawker).
(80) Coming next to the testimony of the mother of the deceased namely Chameli Devi (PW14) who had last seen his deceased son Suresh @ Nati at around 5:30 - 6:00 PM on 16.5.2011. The relevant portion of her testimony is as under:
"........ I earn my living by ironing clothes. Suresh @ Nati used to work as a daily wages labour and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 92 some times he used to help in ironing clothes. My son Suresh @ Nati was an alcoholic. On 16.05.2011 my son Suresh @ Nati was at home only and went out some where at 11 AM while I was cooking food at home. He returned at about 6 PM and came to me with two petticoats and told me to keep it. I found that he had consumed alcohol and scolded him asking him where he was roaming through out the day. I also told him why he has brought the petticoats when I did not wear a saree on which he picked up the petticoats and went away. I told him "chala ja ghar par mat ayo", on which he went away being annoyed saying "mein ja rah hun", that day I waited for him till about 10 PM but he did not returned and therefore I slept after taking my meals. Next day in the morning at about 5:306AM some neighbours informed me that Suresh @ Nati was lying in the jhuggi cluster a little ahead of our house. I was also told that he appeared to be intoxicated ("nashe mein"). When I came to know of it I went to the direction and found he was lying near the jhuggi of Rajeev. I saw chappals lying near his body and blood on his nose and face. I was told by persons standing around him not to touch him. Later I noticed that there was blood on the back side of his hands and nails were having rubbing signs ("ragar laga hua tha"). There were some half broken bricks lying around his body and one match box.
At this stage Ld. APP for the state seeks permission to put some leading questions to the witness as he is not giving the complete details.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 93
Heard. Permitted.
It is correct that two petticoats and blouses which he had brought for me were also recovered from his body from under his baniyan. Vol. I was shown these clothes by the police. Further explains when Suresh @ Nati had come to the house I only noticed two petticoats but when the police searched his body the two petticoats had also two blouses along with them of the same color. Initially the body of my son was covered with a white cloth and it was later when the police searched after removing baniyan that these clothes were found. I can identify the petticoats and blouses if shown to me.
At this stage, the MHC(M) has produced one unsealed parcel which was already opened during the examination of the previous witness. Same is opened and found to contain two petticoats one of Indian pink color (rani pink) and another of orange(santri) color and two stitched blouses one of Indian pink color (Rani Pink) and another of orange (santri) color. Same are shown to the witness who correctly identified the same and same are already collectively EX P1...."
(81) The following aspects are born out from the testimony of Chameli Devi (PW14):
➢ That the deceased Suresh @ Nati used to work as a daily wages labour and was a habitual/ compulsive alcoholic.
➢ That on the date of incident i.e. 16.05.2011 Suresh @ Nati was at home only and went out some where at 11 AM while she St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 94 was cooking food at home and Suresh returned at about 6:00 PM and came to her with two petticoats (corroborates the statement of Suresh Chander hawker that the deceased had snatched these clothes from him).
➢ That Chameli Devi found that Suresh @ Nati had consumed alcohol and scolded him for the same and also scolded him as to why he had brought the petticoats when she did not wear a saree and getting annoyed Suresh @ Nati went away stating "mein ja rah hu".
➢ That thereafter Suresh @ Nati did not reach home and on the next day morning at about 5:306AM some neighbours informed Chameli Devi that Suresh @ Nati was lying in the jhuggi cluster and appeared to be intoxicated.
➢ That when Chameli Devi rushed to the direction which was pointed out to her, she found her son Suresh @ Nati lying near the jhuggi of Rajeev with blood on his nose and face and she also noticed blood on the back side of his hands and nails were having rubbing signs (ragar laga hua tha) and there were some half broken bricks lying around his body along with one match box.
(82) Rajiv Kumar (PW16) is a resident of the same area whose house is opposite to the Jhuggi of accused Sanjeet Kumar. He has St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 95 corroborated the testimony of Santosh Kumar (PW24) that on 17.5.2011 at about 6:30 AM he saw a large number of persons in front of his house. Rajiv Kumar (PW16) has further deposed that he also saw the accused Sanjeet Kumar in the crowd. When he reached the spot he found the dead body of Suresh @ Nati lying there and thereafter he did not see Sanjeet. He has proved that the accused Sanjeet Kumar was residing next to his house and has corroborated the testimonies of mother and brothers of the deceased that Suresh @ Nati was a habitual alcoholic.
(83) After carefully analyzing the testimonies of the aforesaid witnesses, it is writ large Firstly that the deceased Suresh @ Nati was a habitual and compulsive alcoholic.
(84) Secondly on 16.5.2011 he along with Asha Ram (PW11) had consumed alcohol during the day.
(85) Thirdly in the evening when he was returning to his Jhuggi along with Asha Ram, on the way they met Suresh Chander a street Hawker/ pheriwala who was selling stitched petticoats and blouses on which the deceased Suresh @ Nati purchased two petticoats and blouses of Indian pink and orange colour but did not pay for the same and on the insistence of Suresh Chander they started threatening him on which Suresh Chander was compelled to wrapup his business for the day which was on the advise of local residents since the deceased and the other boy (Asha Ram) were local hoodlums.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 96 (86) Fourthly thereafter Suresh @ Nati came back to his house where he met his mother Chameli Devi at about 6:00 PM and Chameli Devi found him in an intoxicated condition on which she scolded him for his condition.
(87) Fifthly when Suresh @ Nati gave the petticoats and blouses to Chameli Devi she again scolded him for the same asking him why he had brought the petticoats and blouses when she did not wear saree on which Suresh @ Nati went away stating "main ja rah hu" and did not return thereafter.
(88) Sixthly Suresh @ Nati again went to the park and told Asha Ram that he wanted to consume more alcohol but Asha Ram did not oblige and told Suresh @ Nati that he wanted to go back to his jhuggi to sleep after which Asha Ram went to his jhuggi and went off to sleep on a takhat outside and saw the deceased Suresh @ Nati entering the house of the accused Sanjeet who reside in the corner/ neighbourhood.
(89) Seventhly in the morning Suresh @ Nati was found dead in front of the jhuggi of Shambhu (the real brother of accused Sanjeet) which is adjoining to the jhuggi which is of accused Sanjeet Kumar. (90) Eighthly on the body of Suresh @ Nati from under his baniyan two petticoats and two blouses which he had snatched from the hawker Suresh Chander were found.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 97 (91) Ninethly while the police was still conducting investigations when the hawker Suresh Chander again passed the area and identified the deceased as the boy who was intoxicated and had taken the petticoats and blouses from him without paying for the same after threatening him and also identified the clothes as the same which were snatched from him on the previous day.
(92) Lastly Suresh Chander had also identified the other boy who was with the police at that time (Asha Ram) as the other boy who had come to him with the deceased in a drunken condition and taken clothes from him while he was selling the same to the residents of the area. (93) As per the postmortem report Ex.PW25/A the time of death was approximately 12 hours before the conduct of postmortem. According to the report, the postmortem examination was conducted on the dead body of Suresh @ Nati on 17.5.2011 at about 1:00 PM and hence it is evident that as per the opinion reflecting the time of death as approximately 12 hours ago, the death of the deceased must have occurred at about 1:00 AM on the intervening night of 1617.5.2011. Asha Ram (PW11) had last seen the deceased Suresh @ Nati entering the jhuggi of the accused Sanjeet Kumar and on the next day the dead body of the deceased was found adjoining the jhuggi of the accused Sanjeet (in front of the jhuggi of his real brother Shambhu). Hence in this background it was for the accused Sanjeet Kumar to have explained as to what happened thereafter and when he parted with the company of St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 98 the deceased which is a special fact being within the exclusive knowledge of the accused (as per the provisions of Section 106 of Indian Evidence Act). It is also not the case of the accused that some other person also had an access to his jhuggi or was with him at the relevant time. He has also not given any explanation for the same and rather in his statement under Section 313 Cr.P.C. when a specific question in this regard was put to the accused, he gave a vague reply stating that the allegations against him are incorrect. In this regard the question No. 17 put to the witness in his statement under Section 313 Cr.P.C. and its answer are reproduced as under:
Q17: It is in evidence against you that according to PW11 Asha Ram that and Suresh again came in the park during the late evening hours when it became dark and wanted to consume more alcohol but he refused and told to Suresh that now he went to jhuggi to sleep and on this he and Suresh returned to jhuggi cluster and he saw Suresh going towards the jhuggies of you accused Sanjeet and saw him entering the jhuggies while he returned to his own jhuggi and slept on a takhat and on the next morning he was woken up by the police and brought near the house of Shambhu where the body of Suresh was lying and large number of persons had gathered at the spot and Suresh was declared dead and there was blood on his nose and face and some stones were lying around the dead body of Suresh. What you have to say about it?
Ans: The allegations against me are incorrect.
(94) The question which now arises is, that in case if the deceased was not with the accused Sanjeet Kumar and Asha Ram has St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 99 deposed falsely on this count, why is it that Asha Ram would falsely implicate the accused and in this regard no explanation is forthcoming.
The accused Sanjeet does not allege that Asha Ram is inimical to him or that there was any history of dispute between them and hence, in this background there is no reason to disbelieve the testimony of Asha Ram (PW11).
(95) Further, Shambhu (PW10) the real brother of the accused Sanjeet before whose Jhuggi the dead body was discovered, has specifically deposed that his brother/ accused Sanjeet Kumar was apprehended by the police because he (Sanjeet) had told them in his presence that he (Sanjeet) had killed the deceased Suresh @ Nati. When Shambhu was crossexamined by the Ld. Defence Counsel, he specifically denied that it was the police who had told him that Sanjeet had killed Suresh @ Nati and not the accused and has voluntarily clarified that in fact it was the accused Sanjeet Kumar who in his presence told the police that he had killed Suresh @ Nati. Here, I may observe that although the statement made by Sanjeet was in the presence of an independent witness i.e. his own real brother Shambhu which disclosure statement of the accused Sanjeet (Ex.PW21/J) yet being a statement made to the police officer while in police custody, the same is inadmissible in evidence being hit by the provisions of Section 27 of Indian Evidence Act except to the extent of disclosure of fact. St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 100 (96) Coming now to the testimony of Rajiv Kumar (PW16) who is a resident of the same area and is the neighbour of both Shambhu and accused Sanjeet Kumar. He has specifically deposed that on 17.5.2011 when he came out at about 6:30 AM he also saw the accused Sanjeet Kumar in the crowd who was standing there but after some time he found that Sanjeet was not present there. According to Rajiv Kumar, after the said day he saw the accused Sanjeet on the third day when he was apprehended by the police and it was then that he came to know that Sanjeet Kumar had murdered Suresh @ Nati. The question which now arise is where was Sanjeet Kumar during this period when the dead body of the deceased was discovered till the time of his arrest after two days? It was necessary for the accused Sanjeet Kumar to have explained the same which he has not done. Why did he run away from the spot? No explanation is forthcoming for the same. The defence has also not controverted the witness Rajiv Kumar with his presence at the spot when the police had come but has rather put a suggestion to them that the accused Sanjeet was standing there just other persons which fact he has admitted. The relevant portion of the crossexamination of Rajiv Kumar (PW16) in this regard is as under:
"........ It is wrong to suggest that I did not notice Sanjeet in the morning along with other public persons near the body of the deceased and I am making the statement on the tutoring of the police.
Vol. Sanjeet was in baniyan at that time. It is St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 101 correct that Sanjeet was standing there just as the other persons were standing....."
(97) This establishes that the accused Sanjeet Kumar was present when the body of the deceased was discovered but thereafter he was not available. The question which arises is, Why? It was necessary for the accused to have explained his absence during this period of two days and it is this conduct of accused Sanjeet Kumar which raises a finger of suspicion on him for his failure to explain his absence. When this aspect was put to the accused Sanjeet Kumar during the recording of his statement under Section 313 Cr.P.C. he gave a vague response stating that the allegations made against him were incorrect but chose not to give any explanation as to where he was during this period. (98) In view of the aforesaid I hereby hold that the conduct of the accused Sanjeet Kumar in absconding after the incident is highly suspicious. Further, there is a proximity between the last seen and the time of death of the deceased in as much as the deceased died on the intervening night of 1617.5.2011 after he was last seen alive entering the jhuggi of accused Sanjeet Kumar (Jhuggi No. 85) in the late evening hours of 16.5.2011 after which his dead body was found outside the jhuggi of Shambhu (real brother of Sanjeet) bearing Jhuggi No. 86 situated just adjoining the jhuggi No. 85 of Sanjeet. The accused has failed to explain when he parted the company of the deceased and where. Blood stains were found by the investigating team (including the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 102 FSL expert) not only on the floor and the walls of jhuggi no. 86 but also on the floor of the room of jhuggi no. 85 and also the curtain and quilt cover of jhuggi no. 85 belonging to Sanjeet (matching with the blood group of the deceased as per the FSL Report) and the accused Sanjeet has failed to explain the same. All this is highly determinative of the guilt of the accused Sanjeet Kumar and the time gap between the point of time when the deceased was last seen alive while going to the jhuggi of accused and the deceased was found dead in front/ adjoining his jhuggi, is so small that possibility of any person other than the accused Sanjeet Kumar being the author of the crime becomes impossible more so in view of the FSL Report which confirms the presence of blood of the deceased (same blood group) on the floor of the jhuggi of the accused Sanjeet and articles (curtain and quilt cover) recovered from the spot.
Recovery of blood stained pillow at the instance of the accused:
(99) The case of the prosecution is that after his arrest the accused Sanjeet Kumar during his interrogation disclosed about his involvement in the present case. He had disclosed that being fed up with the deceased Suresh @ Nati of his regular demand of money from him, in a fit of rage he killed the deceased by manually strangulating him when the deceased had come to his Jhuggi in the intervening night of 1617.5.2011 in an intoxicated condition and demanded money from him St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 103 for consuming alcohol. The neighbour Rajiv Kumar (PW16) who is a resident of the same area and also the mother of the deceased namely Chameli Devi (PW14) have confirmed that the deceased Suresh was a compulsive alcoholic whereas this fact that the accused Sanjeet Kumar was also an alcoholic has not come on record. Further, Suresh Chander (PW12) has informed the Court that after the deceased and one other boy had snatched the petticoat and blouse from him and refused to make the payment, he was told by the residents of the area that that the said boys were habitual in creating a nuisance and hence fearing for his life since one of the boy had also caught hold of his hairs from his back when he demanded money from them, he went away from the spot. All this is indicative of the fact that the deceased Suresh @ Nati being a habitual alcoholic was also a nuisance in the area.
(100) Further, the case of the prosecution is that after his arrest the accused Sanjeet Kumar made a disclosure statement admitting his involvement in the present case which disclosure statement is Ex.PW21/J. Pursuant to his disclosure statement the accused Sanjeet Kumar got recovered a blood stained pillow from the garbage bin of BH Block Shalimar Bagh which was seized vide memo Ex.PW21/L. (101) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 104 of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(102) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1.Anything, state of things, or relation of things, or capable of being perceived by the senses,
2.Any mental condition of which any person is conscious.
(103) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 105
(104) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (105) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 106 Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 107
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(106) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 108 Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 109 the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(107) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused. The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 110 said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(108) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(109) Applying the settled principles of law to the facts of the present case it is writ large that in so far as the statement of accused St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 111 Sanjeet Kumar to the extent of his involvement in the offence is concerned, the same is hit by the provisions of Section 27 of Evidence Act and is inadmissible in evidence even though it was made in the presence of his real brother Shambhu. It is only the statement of the accused leading to the discovery of the blood stained pillow which he got recovered from the garbage bin of BH Block, Shalimar Bagh which is admissible in evidence. The fact that the murder of the deceased had been committed was in the knowledge of the investigating agency but the fact that it was committed by the accused inside his own jhuggi bearing No. 85 was only in the best knowledge of the accused Sanjeet and none else because the body of the deceased Suresh @ Nati was found in front of jhuggi No. 86 i.e. adjoining jhuggi belonging to the brother of the accused. Further, the manner in which the deceased had been killed and what had transpired prior to the manual strangulation was a fact which was only in the best knowledge of the accused. Also, that apart from the quilt and the curtain, the pillow had also been heavily stained with the blood of the deceased, which pillow he had thrown in the garbage bin/ Kooradaan, was another fact which was again in the best knowledge of the accused Sanjeet Kumar and it was not until the accused Sanjeet disclosed that before he manually strangulated the deceased, he had hit the head of the deceased Suresh @ Nati on the wall of his jhuggi as a result of which a large amount of blood spilled over the walls, floor, quilt cover and pillow etc. which he had wiped with the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 112 newspapers after which he threw the newspapers and the said pillow in the garbage bin/ koora ghar, that this fact for the first time came to the knowledge of the police. It is this recovery of pillow which is a direct outcome of such information given by the accused Sanjeet which is connected to the commission of the offence in the present case and is admissible as per the provisions of Section 27 of Indian Evidence Act. (110) No doubt, the curtain and the quilt cover and floor of the room had blood stains (which were got lifted from the FSL expert and the said blood stains matched with the blood group of the deceased) but the fact that the pillow had also been stained with the blood of the deceased which pillow he had thrown in the garbage bin, was in the best knowledge of the accused and only came to the knowledge of the investigating agency when he disclosed about the same to them. It is this aspect of recovery of the blood stained pillow from the garbage bin which is a discovery of a relevant fact connecting the accused Sanjeet to the offence of murder which he committed in his house i.e. inside his Jhuggi No. 85 after which in order to remove the traces of his crime he not only dragged the body of the deceased Suresh @ Nati and kept the same in front of the Jhuggi of his brother Shambhu bearing No. 85 but thereafter in order to conceal his crime, cleaned the floor with newspapers and also picked up the blood stained pillow and threw the newspapers and the pillow in the garbage bin/ Kooredaan. The DNA Finger Printing Report conclusively establishes the blood stains present St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 113 on the said pillow got recovered by the accused Sanjeet, belongs to the deceased.
(111) In view of the above, I hereby hold that the fact that the accused Sanjeet Kumar pointed out the garbage bin of BH Block, Shalimar Bagh and got recovered the blood stained pillow, is a strong pointer towards the guilt of accused Sanjeet Kumar. Medical evidence/ Cause of death:
(112) Dr. V.K. Jha (PW25) has proved the postmortem report of the deceased which is Ex.PW25/A according to which there were following external injuries on the body of the deceased:
1. Pressure abrasion mark of size 3 cm X 2 cm on right side of the neck.
2. Multiple scratch abrasion over right and left side of neck.
3. Lacerated wound of size of size 3 cm X .5 cm to 2 cm X .5 cm X muscle deep on proximal phalanges of middle finger, ring finger and index finger of right hand.
4. Lacerated wound on top of nose of size 4 cm X 1 cm X muscle deep.
(113) According to Dr. V.K. Jha the cause of death was as a result of manual strangulation inflicted by other party and all injuries were antemortem in nature and time since death was approximately 12 hours. The nature of injuries i.e. abrasion on right St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 114 side of the neck, multiple scratch abrasion over right and left side of neck, lacerated wound of muscle deep on proximal phalanges of middle finger, ring finger and index finger of right hand and lacerated worn on tip/ top of nose indicates that there was some scuffle or brawl before the deceased was actually strangulated. The injuries mentioned in the postmortem report clearly establish that the cause of death was on account of manual strangulation and the said evident has gone uncontroverted the Autopsy Surgeon not having been crossexamined by the Ld. Defence Counsel. Further, the photographs of the spot taken by the crime team which photographs are Ex.PW1/A1 to Ex.PW1/A10 are compatible to the injures reflected in the postmortem report. The muscle deep injury on the tip/ top of the nose can be seen in the photograph of the dead body Ex.PW1/A3 which is indicative of the fact that perhaps before the deceased was strangulated either he was boxed on his nose or his head was smashed against some hard surface. In view of the above I hereby hold that the medical evidence on record is compatible to the prosecution version of violence before death and death on account of homicidal manual strangulation (by other party) which act of manual strangulation is likely to cause death. Forensic Evidence/ DNA Report:
(114) Ms. Kavita Goel (PW17) has proved the viscera report of the deceased which is Ex.PW17/A according to which the blood of the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 115 deceased was found to contain ethyl alcohol. She has further proved that in exhibit No. 1C (blood sample approximately 10 ml) was containing ethyl alcohol, 34.4 mg per 100 ml of blood. Her testimony has gone uncontroverted.
(115) The report of Ms. Kavita Goel confirming the presence of ethyl alcohol in the blood of the deceased, corroborates the testimony of Asha Ram (PW11) that on the date of the incident he along with the deceased had consumed alcohol and also the testimony of Suresh Chander (PW12) that when the deceased along with another boy had come and snatched two petticoats and blouses, both the deceased and the said boy were in an intoxicated state. It also corroborates the version given by the mother of the deceased namely Chameli Devi (PW14) that her deceased son was intoxicated when he came to her at about 6:00 PM.
(116) Further, Ms. L. Babyto Devi (PW18) has proved the biological and serological reports in respect of the various exhibits lifted from the scene of crime. She has proved that when she had examined the scene of crime, blood was detected on wall of jhuggi no. 86; floor in front of jhuggi no. 86; curtain of jhuggi no. 85; floor of jhuggi no. 85 and quilt cover of jhuggi No. 85 on which she prepared the crime team report which is Ex.PW18/A. The said exhibits were thereafter sent to FSL where she has examined the same. The witness has proved the biological examination report of the exhibits which is Ex.PW18/B and St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 116 the serological examination report which is Ex.PW18/C. I may mention that it is an admitted case of the accused that he is a resident of Jhuggi No. 85 and his brother Shambhu was residing at Jhuggi No. 86 in front of whose jhuggi the dead body was found. Ms. L. Babyto Devi has further proved that blood was detected on the wall of Jhuggi No. 86, floor in front of jhuggi no. 86, curtain of jhuggi no. 85, floor of jhuggi no. 85 and quilt cover of jhuggi no. 85. The Serological Report Ex.PW18/C establishes that the blood lifted from the plaster of the wall was of human origin; blood on the gauze cloth piece in respect of blood lifted from the floor of Jhuggi No. 85 (belonging to the accused Sanjeet) and the blood stained curtain lifted from the jhuggi No. 85 (belonging to the accused Sanjeet) was of the same group i.e. B Group belonging to the deceased. Human blood was also detected on the quilt cover lifted from the house of the accused Sanjeet Kumar (though the blood group was inconclusive). The witness Ms. L. Babyto Devi has not been cross examined by the Ld. Defence Counsel and therefore her testimony has gone unrebutted and uncontroverted.
(117) The above forensic evidence conclusively establishes that the scene of crime was actually Jhuggi No.85 and the body was later on shifted in front of Jhuggi No. 86 and it is for this reason that blood of B Group (i.e. belonging to the deceased Suresh @ Nati) was found on the curtain and floor of the jhuggi of accused Sanjeet Kumar (Jhuggi No.
85) and outside walls of floor of Jhuggi No. 86 (belonging to his brother St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 117 Shambhu). The photographs taken by the crime team corroborate the FSL version and establishes that the body of the deceased was found outside the jhuggi no. 86 and also reflect the presence of blood stains.
(Reference is made to the photographs Ex.PW13/A1 to Ex.PW13/A3). (118) Coming now to the DNA Finger Printing Report. The case of the prosecution is that pursuant to his disclosure statement made to the police regarding his guilt, the accused Sanjeet Kumar while in police custody had disclosed to the police that he after committing the murder he removed the blood stains from the floor with the help of newspaper and a pillow. It was pursuant to his disclosure statement that the accused got recovered the said blood stained pillow from the garbage bin though the newspaper could not be recovered. SI Rattan Kumar (PW21) and Inspector Veer Singh (PW26) have proved the recovery and seizure of the said blood stained pillow on the pointing out and instance of the accused which was thereafter sent to FSL for purposes of DNA Finger Printing examination. The DNA Finger Printing Report has been duly proved by Sh. D.S. Paliwal (PW23) vide Ex.PW23/A which conclusively establishes that the alleles from the source of exhibit 1 (gauze piece of the deceased) are accounted in the alleles from the source of exhibit 4 (blood stained pillow).
(119) This establishes that the murder of the deceased had in fact taken place inside the jhuggi of accused Sanjeet Kumar bearing No. 85 and it was only thereafter that the body of the deceased was shifted St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 118 outside and kept in front of the jhuggi of Shambhu (Jhuggi no. 86) which as per the photographs and the site plan placed on record is hardly twothree feet away from the jhuggi of Sanjeet. How and under what circumstances, the blood stains of the deceased were found on the pillow got recovered by the accused? There is no answer to this question. It is this DNA Finger Printing Report which conclusively connects the accused to the recovery of the pillow containing DNA of the deceased. The presence of blood stains of the deceased (Serological Report providing the blood group of the deceased) inside the jhuggi no. 85 and pillow got recovered by the accused (DNA Finger Printing Report establishing the DNA of the deceased on the said pillow), conclusively establishes that the offence had in fact taken place inside the jhuggi of Sanjeet Kumar (Jhuggi no. 85). I hereby hold that the Forensic Evidence is compatible to the prosecution version. Sequence of events established/ arrest of the accused:
(120) Admittedly the accused Sanjeet Kumar was apprehended after three days of the incident. As per the testimonies of SI Rattan Kumar (PW21) and Inspector Veer Singh (PW26) on 20.5.2011 a secret information was received that the person who was involved in the present case was sitting in the Baccha Park and when they went to the site, on the pointing out of the secret information the accused was apprehended who was sitting under a Chatri. On interrogation the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 119 accused Sanjeet admitted having committed the murder of Suresh @ Nati on the intervening night of 1617.5.2011. The accused was thereafter arrested vide memo Ex.PW21/G; his personal search was conducted vide memo Ex.PW21/H and his disclosure statement was recorded which is Ex.PW21/J. Admittedly no public witness has been joined at the time of his arrest but the officials have proved that they had made efforts to join public witnesses who refused and hence without wasting any further time, after receiving the secret information they immediately went to the park and apprehended the accused so pointed out to them.
(121) It is a matter of common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings.
This position of law was reiterated in Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish vs. State, 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State, AIR 1989 SC 696, where it was held that we cannot be St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 120 oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. (122) Further, pursuant to his arrest and disclosure the accused had pointed out the place of incident i.e. his Jhuggi bearing No. 85 and also explained that first he smashed the head of the accused on the wall of the Jhuggi which explains the injuries present on the tip/ top of nose of the deceased and also seen in the photographs of the dead body placed on record. He also got recovered the blood stained pillow from the garbage bin and the DNA Finger Printing Report confirms that the blood stains present on the pillow were belonging to the deceased. The Serological Report Ex.PW18/C establishes that the blood lifted from the plaster of the wall was of human origin; blood on the gauze cloth piece in respect of blood lifted from the floor of Jhuggi No. 85 (belonging to the accused) and the blood stained curtain lifted from the jhuggi No. 85 (belonging to the accused Sanjeet) was of the same group i.e. B Group belonging to the deceased. Human blood was also detected on the quilt cover lifted from the house of the accused Sanjeet Kumar (though the blood group was inconclusive).
(123) The above medical and forensic evidence coupled with the last seen evidence in the form of testimony of Asha Ram (PW11) confirming that he had last seen the deceased Suresh @ Nati entering the St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 121 Jhuggi of the accused Sanjeet Kumar after he himself refused to gave him company and on account of the failure of the accused to explain when he parted with the company of the deceased, I hereby hold that the entire evidence conclusively points out towards the guilt of the accused Sanjeet Kumar. From the evidence which has come on record the following facts stand established:
➢ That the deceased Suresh @ Nati used to work as a daily wages labour and was a habitual alcoholic.
➢ That on 16.05.2011 at about 1111:30 AM the deceased Suresh @ Nati had given Rs 100/ to Asha Ram for the purchase of liquor on which he purchased a half bottle of liquor and he along with the deceased had consumed alcohol first at the jhuggi and thereafter at Beri wala park.
➢ That there in the park they were also joined by another boy namely Johny and at about 44:30 PM they returned to their jhuggies.
➢ That at about 4:30 PM while they were coming back they met one pheriwala (Suresh Chander) was selling stitched clothes on his cycle and the deceased Suresh @ Nati purchased took two petticoats and blouses for his mother which were of red and pink color but did not make any payment to him and thereafter Asha Ram returned to his Jhuggi.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 122
➢ That at about 6:00 PM Suresh @ Nati had gone to his house with the petticoats and blouses (which he had snatched from street hawker Suresh Chander).
➢ That the mother of the deceased namely Chameli Devi found that Suresh @ Nati had consumed alcohol and reprimanded him for the same and also scolded him as to why he had brought the petticoats when she did not wear a saree and getting annoyed Suresh @ Nati went away stating "mein ja rah hu".
➢ That Suresh @ Nati again came in the park during the late evening hours and asked Asha Ram that he wanted to consume more alcohol on which Asha Ram refused and told him that he went to go back on which both of them (Asha Ram and Suresh @ Nati) returned to Jhuggi.
➢ That Asha Ram saw Suresh @ Nati going towards the jhuggi of accused Sanjeet and entering his (Sanjeet Kumar's) jhuggi while he himself to his own jhuggi and slept outside on a takhat.
➢ That on the next day morning i.e. 17.5.2011 at about 5:45 AM Santosh Kumar (PW25) noticed the dead body of his brother Suresh @ Nati lying in front of Jhuggi No. 86, BG1 Block, East Shalimar Bagh.
➢ That immediately call was made to the police who arrived at the spot along with the crime team and FSL experts who St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 123 inspected the scene of crime.
➢ That photographs of the scene of crime were taken and the expert lifted the blood stains and other exhibits from outside the Jhuggi No. 86 and from inside the Jhuggi No. 85. ➢ That in the meanwhile the street hawker Suresh Chander (PW12) came to the area on his pheri and came to know that one of the boy who had taken the clothes had been murdered on which he met the police at the spot and told them that the deceased was the boy who had taken the clothes from his pheri.
➢ That Suresh Chander also saw another boy with the police and identified him as the same boy who was with the deceased and had snatched clothes from his cycle.
➢ That the accused Sanjeet Kumar who was initially present in the area and had been seen by Rajiv Kumar (PW16) thereafter escaped from the spot and could not be found till the time he was apprehended by the police on 20.5.2011 after which he was interrogated and he admitted his involvement and got recovered the blood stained pillow from the garbage bin (as per the DNA Finger Printing Report the blood on the pillow was of the deceased Suresh @ Nati).
(124) The medical evidence/ postmortem report conclusively establishes that the deceased had been killed on account of manual St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 124 strangulation. As per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. (125) In the present case it is writ large from the medical evidence that the face of the deceased Suresh @ Nati was first banged/ smashed against the wall as a result of which he sustained injuries on the nose which blood spattered all over the jhuggi of the accused on the various things including the quilt cover, curtain, floor and the pillow. The accused did not stop at that. He thereafter manually strangulated the deceased Suresh @ Nati by which act the accused knew is likely to cause death of the deceased Suresh @ Nati in the ordinary course of nature. Therefore, I hereby hold that the prosecution has been able to establish the necessary knowledge attributed to the accused Sanjeet Kumar as contemplated under Section 300 Indian Penal Code to cause St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 125 the death of Suresh @ Nati for which the accused is hereby held guilty for the offence under Section 302 Indian Penal Code. Further, it has been established that the accused Sanjeet Kumar concealed the blood stained pillow thereby caused the evidence of murder to disappear with intention to screen himself from legal punishment for which he is hereby held guilty of the offence under Section 201 Indian Penal Code. FINAL CONCLUSIONS:
(126) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 126
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(127) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various prosecution witnesses, the following facts stand established:
➢ That the deceased Suresh @ Nati used to work as a daily wages labour and was a habitual alcoholic.
➢ That on 16.05.2011 at about 1111:30 AM the deceased Suresh @ Nati had given Rs 100/ to Asha Ram for the purchase of liquor on which he purchased a half bottle of liquor and he along with the deceased had consumed alcohol first at the jhuggi St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 127 and thereafter at Beri wala park.
➢ That there in the park they were also joined by another boy namely Johny and at about 44:30 PM they returned to their jhuggies.
➢ That at about 4:30 PM while they were coming back they met one pheriwala (Suresh Chander) was selling stitched clothes on his cycle and the deceased Suresh @ Nati purchased took two petticoats and blouses for his mother which were of red and pink color but did not make any payment to him and thereafter Asha Ram returned to his Jhuggi.
➢ That at about 6:00 PM Suresh @ Nati had gone to his house with the petticoats and blouses (which he had snatched from street hawker Suresh Chander).
➢ That the mother of the deceased namely Chameli Devi found that Suresh @ Nati had consumed alcohol and reprimanded him for the same and also scolded him as to why he had brought the petticoats when she did not wear a saree and getting annoyed Suresh @ Nati went away stating "mein ja rah hu".
➢ That Suresh @ Nati again came in the park during the late evening hours and asked Asha Ram that he wanted to consume more alcohol on which Asha Ram refused and told him that he went to go back on which both of them (Asha Ram and Suresh @ Nati) returned to Jhuggi.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 128
➢ That Asha Ram saw Suresh @ Nati going towards the jhuggi of accused Sanjeet and entering his (Sanjeet Kumar's) jhuggi while he himself to his own jhuggi and slept outside on a takath.
➢ That on the next day morning i.e. 17.5.2011 at about 5:45 AM Santosh Kumar (PW25) noticed the dead body of his brother Suresh @ Nati lying in front of Jhuggi No. 86, BG1 Block, East Shalimar Bagh.
➢ That immediately call was made to the police who arrived at the spot along with the crime team and FSL experts who inspected the scene of crime.
➢ That photographs of the scene of crime were taken and the expert lifted the blood stains and other exhibits from outside the Jhuggi No. 86 and from inside the Jhuggi No. 85. ➢ That in the meanwhile the street hawker Suresh Chander (PW12) came to the area on his pheri and came to know that one of the boy who had taken the clothes had been murdered on which he met the police at the spot and told them that the deceased was the boy who had taken the clothes from his pheri.
➢ That Suresh Chander also saw another boy with the police and identified him as the same boy who was with the deceased and had snatched clothes from his cycle.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 129 ➢ That the accused Sanjeet Kumar who was initially present in the area and had been seen by Rajiv Kumar (PW16) thereafter escaped from the spot and could not be found till the time he was apprehended by the police on 20.5.2011 after which he was interrogated and he admitted his involvement and got recovered the blood stained pillow from the garbage bin (as per the DNA Finger Printing Report the blood on the pillow was of the deceased Suresh @ Nati.
(128) The medical evidence/ postmortem report conclusively establishes that the deceased had been killed on account of manual strangulation and the face of the deceased Suresh @ Nati was first banged with the wall as a result of which he sustained injuries on the nose which blood scattered all over the jhuggi of the accused on the various things including the quilt cover, curtain, floor and the pillow and it was thereafter that the accused manually strangulated the deceased Suresh @ Nati by which act the accused knew is likely to cause death of the deceased Suresh @ Nati in the ordinary course of nature. The prosecution has been able to establish the necessary knowledge attributed to the accused Sanjeet Kumar as contemplated under Section 300 Indian Penal Code to cause the death of Suresh @ Nati. It has also been established that the accused Sanjeet Kumar concealed the blood stained pillow thereby caused the evidence of murder to disappear with intention St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 130 to screen himself from legal punishment.
(129) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (130) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical & forensic evidence and the witnesses of the prosecution have been able to built up a continuous link.
(131) In view of the above, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Sanjeet Kumar of having committed the murder of Suresh @ Nati by St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 131 manually strangulating him and of having concealed the blood stained pillow thereby causing the evidence of murder to disappear with intention to screen himself from legal punishment for which the accused is hereby held guilty of the offence under Section 302 & 201 Indian Penal Code and accordingly convicted.
(132) Be listed for arguments on sentence on 4.12.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 27.11.2012 ASJII(NW)/ ROHINI
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 132
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 55/11 Unique Case ID No.: 02404R0222312011 State Vs. Sanjeet Kumar S/o Ram Avtar R/o Jhuggi No. 85, BG1, East Shalimar Bagh, Delhi (Convicted) FIR No.: 170/2011 Police Station: Shalimar Bagh Under Sections: 302/201 Indian Penal Code Date of conviction: 27.11.2012 Arguments concluded on: 7.12.2012 Date of sentence: 11.12.2012 APPEARANCE:
Present: Sh. Sukhbeer Singh, Addl. Public Prosecutor for the State.
Convict Sanjeet Kumar in Judicial Custody.
ORDER ON SENTENCE:
Vide my detailed judgment dated 27.11.2012 the accused Sanjeet Kumar has been held guilty of the offence under Section 302 & 201 Indian Penal Code.St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 133
The case of the prosecution is that on 17.5.2011 at about 5:51 AM a call was received regarding lying of a dead body in front of Jhuggi No. P86, BG1 Block, East Shalimar Bagh pursuant to which DD No. 11B was lodged at Police Station Shalimar Bagh and SI Baljeet Singh along with Ct. Devender reached the spot where they found the dead body of Suresh @ Nati. The caller Santosh Kumar met the police and disclosed that deceased Suresh @ Nati was his brother and was a compulsive alcoholic. He further informed the police that on 16.5.2011 at about 6:00 PM Suresh @ Nati came to the Jhuggi in an intoxicated condition and told them that he was going outside and would sleep outside after which he went back. According to Santosh Kumar in the morning at about 5:45 AM he noticed the dead body of his brother Suresh in front of Jhuggi No. P86, BG1 Block on which he made a call at 100 number. On the basis of the statement of Santosh Kumar the present FIR was got registered under Section 302 IPC. Crime Team was called to the spot and the postmortem examination of the dead body was got conducted. The FSL expert Ms. L. Babyto Devi was also called to the spot who inspected the place where the dead body was lying and also the adjoining jhuggi No. 85 (belonging to the accused Sanjeet Kumar) where blood stains were found on the floor, curtain and quilt cover. During investigations it was revealed that on 16.5.2011 one Asha Ram and the deceased had consumed liquor in a park and he thereafter snatched two petticoats and blouses from a hawker and did not pay for St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 134 the same. As per the allegations the deceased went to his house and was reprimanded by his mother and thereafter again he went away and wanted to consume more liquor but Asha Ram did not join him. It was also revealed that Asha Ram had last seen the deceased Suresh @ Nati alive in the late evening hours while he (Suresh @ Nati) was entering into the jhuggi of Sanjeet Kumar and on 17.5.2011 morning the dead body of Suresh @ Nati was found lying outside the jhuggi no. 86 (i.e. adjoining to the jhuggi of accused Sanjeet Kumar). During this period Sanjeet Kumar went missing and on 20.5.2011 pursuant to a secret information the suspect/ accused Sanjeet Kumar was apprehended from Children Park, Shalimar Bagh. On interrogation the accused admitted having committed the murder of Suresh @ Nati on the intervening night of 1617.5.2011. He had disclosed that there was a quarrel/ brawl between him and Suresh @ Nati who was his friend during which he committed his murder and thereafter dragged his body in front of Jhuggi No. 86 and cleaned the floor of his jhuggi with newspaper. The accused also disclosed that he had thrown the newspaper and the pillow in garbage dump (koora ghar) and pursuant to same the accused got recovered the pillow from the garbage dump (koora ghar) near DDA flats, however, the newspaper could not be recovered.
On the basis of the testimony of the various witnesses examined by the prosecution, the medical, forensic and other circumstantial evidence on record, this Court vide judgment dated St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 135 27.11.2012 held the accused Sanjeet Kumar guilty of the offence under Section 302 & 201 Indian Penal Code. In the said judgment it has been observed by this Court that it stood established that the deceased Suresh @ Nati used to work as a daily wages labour and was a habitual alcoholic; that on 16.05.2011 at about 1111:30 AM the deceased Suresh @ Nati had given Rs 100/ to Asha Ram for the purchase of liquor on which he purchased a half bottle of liquor and he along with the deceased had consumed alcohol first at the jhuggi and thereafter at Beri wala park; that there in the park they were also joined by another boy namely Johny and at about 44:30 PM they returned to their jhuggies; that at about 4:30 PM while they were coming back they met one pheriwala (Suresh Chander) was selling stitched clothes on his cycle and the deceased Suresh @ Nati purchased took two petticoats and blouses for his mother which were of red and pink color but did not make any payment to him and thereafter Asha Ram returned to his Jhuggi; that at about 6:00 PM Suresh @ Nati had gone to his house with the petticoats and blouses (which he had snatched from street hawker Suresh Chander); that the mother of the deceased namely Chameli Devi found that Suresh @ Nati had consumed alcohol and reprimanded him for the same and also scolded him as to why he had brought the petticoats when she did not wear a saree and getting annoyed Suresh @ Nati went away stating "mein ja rah hu"; that Suresh @ Nati again came in the park during the late evening hours and asked Asha Ram that he wanted to St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 136 consume more alcohol on which Asha Ram refused and told him that he went to go back on which both of them (Asha Ram and Suresh @ Nati) returned to Jhuggi; that Asha Ram saw Suresh @ Nati going towards the jhuggi of accused Sanjeet and entering his jhuggi while he himself to his own jhuggi and slept outside on a takhat; that on the next day morning i.e. 17.5.2011 at about 5:45 AM Santosh Kumar (PW25) noticed the dead body of his brother Suresh @ Nati lying in front of Jhuggi No. 86, BG1 Block, East Shalimar Bagh; that immediately call was made to the police who arrived at the spot along with the crime team and FSL experts who inspected the scene of crime; that photographs of the scene of crime were taken and the expert lifted the blood stains and other exhibits from outside the Jhuggi No. 86 and from inside the Jhuggi No. 85; that in the meanwhile the street hawker Suresh Chander (PW12) came to the area on his pheri and came to know that one of the boy who had taken the clothes had been murdered on which he met the police at the spot and told them that the deceased was the boy who had taken the clothes from his pheri; that Suresh Chander also saw another boy with the police and identified him as the same boy who was with the deceased and had snatched clothes from his cycle; that the accused Sanjeet Kumar who was initially present in the area and had been seen by Rajiv Kumar thereafter escaped from the spot and could not be found till the time he was apprehended by the police on 20.5.2011 after which he was interrogated and he admitted his involvement and got recovered the blood stained St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 137 pillow from the garbage bin (as per the DNA Finger Printing Report the blood on the pillow was of the deceased Suresh @ Nati).
It has also been observed by this Court that the medical evidence/ postmortem report conclusively establishes that the deceased had been killed on account of manual strangulation and the face of the deceased Suresh @ Nati was first banged/ smashed against the wall as a result of which he sustained injuries on the nose which blood spattered all over the jhuggi of the accused on the various things including the quilt cover, curtain, floor and the pillow and it was thereafter that accused manually strangulated the deceased Suresh @ Nati by which act the accused knew is likely to cause death of the deceased Suresh @ Nati in the ordinary course of nature.
Therefore, this Court has held that the prosecution has been able to establish the necessary knowledge attributed to the accused Sanjeet Kumar as contemplated under Section 300 Indian Penal Code to cause the death of Suresh @ Nati for which the accused has been held guilty for the offence under Section 302 Indian Penal Code. Further, it has been established that the accused Sanjeet Kumar concealed the blood stained pillow thereby caused the evidence of murder to disappear with intention to screen himself from legal punishment for which he has been held guilty of the offence under Section 201 Indian Penal Code.
Heard arguments on the point of sentence. The convict Sanjeet Kumar is stated to be a young boy of 22 years having a family St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 138 comprising of aged parents, brother, wife and one son. He is 5th class pass and is a labour by profession. The Ld. Counsel for the convict has vehemently argued that the convict has no other criminal involvements and his wife and son are totally dependent upon the convict.
The Ld. Public Prosecutor has on the other hand, placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts. It is also argued that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 139 imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 140 morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
Now, I would like to draw a balance sheet of aggravating and mitigating factors. The aggravating factors are that the deceased was a young boy of 25 years. The mitigating factors are that the convict Sanjeet Kumar is a young boy of 22 years having no previous criminal involvement and the deceased Suresh @ Nati was himself a compulsive alcoholic and was a nuisance in the area. The offence had been St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 141 committed at the spur of the moment without any previous planning. In view of the above, I hereby award the following sentences to the convict Sanjeet Kumar:
1. For the offence under Section 201 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Two (2) Years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.10,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
Both the sentences shall run concurrently.
Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
St. Vs. Sanjeet Kumar, FIR No. 170/11, PS Shalimar Bagh Page No. 142
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached along with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 11.12.2012 ASJ (NW)II: ROHINI
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