Fir No:989/06; Ps Nand Nagri; U/S ... vs . Charan Singh & Etc. on 22 February, 2011

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Delhi District Court

Fir No:989/06; Ps Nand Nagri; U/S ... vs . Charan Singh & Etc. on 22 February, 2011

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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

IN THE COURT OF SH. B.S. CHUMBAK:ADDL. SESSIONS JUDGE
DELHI

Case ID Number 02402R0124252007
Session Case No. 37/08
Assigned to Sessions 03/03/07
Arguments heard on 21/02/11
Date of order 22/02/11
FIR NO. 989/06
Police Station NAND NAGRI
Under Section 302/308 IPC
Out come of the judgment CONVICTED

STATE VS 1. CHARAN SINGH

2. HARISH CHAND

3. JANKI PRASAD
ALL S/O SHYAM LAL
R/O C-160, GALI NO.19,
HARSH VIHAR, DELHI

4. RINKU
S/O SURENDER SETHI
R/O C-485, HARSH VIHAR,
DELHI

5. PRATAP SINGH
S/O BHIM SINGH
R/O B-2/84, HARSH VIHAR,
DELHI

Page 1/92
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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

Present: Sh. S.K. Dass Ld. Addl. PP for state.
Sh. Malkhan Singh Advocate on behalf of accused Rinku
and Pratap.
Sh. J.P. Singh Advocate on behalf of accused Charan Singh,
Harish and Janki Prasad.

JUDGMENT

1. Initially on 26.11.06 a case u/s 307/308/452/34 IPC was registered at PS Nand Nagri vide FIR no. 989/06 on the basis of statement of Anil Kumar s/o Brij Pal r/o house no. 25, Gali no.2, Ashok Vihar, Loni, Ghaziabad, UP against accused Charan Singh, Harish Chand and Janki Prasad all sons of Shayam Lal, all r/o C-160, Gali no.19, Harsh Vihar, Delhi also against accused Rinku s/o Surender Sethi r/o C-485 Harsh Vihar, Delhi and Pratap Singh s/o Bhim Singh r/o B-2/84 Harsh Vihar, Delhi.

2. Brief facts arising out of this case are that in the intervening night of 25- 26/11/06 three informations were received at PP Harsh Vihar vide DD no. 27, DD no.29 and DD no.38 respectively. Vide DD no.27 it was informed that at about 10:10 p.m quarrel has taken place at C-1/484 Harsh Vihar, vide DD no. 29 it was informed that at about 10:25 p.m quarrel has taken place in gali no. 19, Friday Market near Oil Depot and vide DD no.38 it was informed that at Page 2/92 3 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. about 3:00 a.m an unknown person in an injured condition was lying at Ram Leela ground, C Block, Harsh Vihar. Pursuant to receipt of DD no.27 and 29 and during investigation MLC bearing no. A-4963/06 of injured Lalit Sharma s/o Ramesh Chand and MLC bearing no. A-4833/06 of injured Anil s/o Brij Pal and MLC bearing no. B-4954/06 of injured Harish Chand s/o Shyam Lal were handed over to Inspector Rajni Kant by HC Yad Ram. After receiving the aforesaid MLC's and on receipt of DD no. 38 mentioned above SI Rajni Kant alongwith HC Yad Ram and Ct.. Prem Pal reached at Ram Leela Ground, C- Block. On reaching there they saw 20/22 years old boy in an injured and unconscious condition. CAT Ambulance was called at the spot, injured was taken to GTB hospital. Ct. Prem Pal left at the spot and SI Rajni Kant reached at GTB hospital and obtained the MLC bearing no. A-4965/06 of unknown injured person. Doctor opined the injured as unfit for statement and nature of injury was kept u/o caused by blunt object. Injured Anil s/o Brij Pal and Lalit s/o Ramesh Chand met in the hospital and they got identified the unknown injured as Mukesh s/o Bhagwan Singh r/o C-1/372, Nand Nagri, Delhi. Statement of Anil s/o Brij Pal was recorded by the IO wherein he stated as under :

"He used to drive TSR scooter owned by Saroj w/o Bhagwan Singh r/o C-1/372 Nand Nagri on rent. His step brother Mukesh s/o Bhagwan Singh recently Page 3/92 4 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

opened a kiryana shop at C-1/486 and he also used to help him occassionly On 25.11.06 at about 7:00 p.m he had gone to the shop of Mukesh. At about 9:45 p.m when he was present at the shop with Mukesh in the meantime Charan Singh s/o Shayam Lal r/o C-1, Gali no.19, Harsh Vihar, Delhi whose house is situated in front of shop of Mukesh reached at the shop under the influence of liquor and demanded gutaka. He and Mukesh refused to give him gutaka without making payment. Charan Singh left the shop while extending threat and after about five minutes Charan Singh alongwith his brothers Harish Chand, Janaki Prasad and his friends Rinku and Pratap all were already known to him reached there having lathi, danda and rod in their hands. They all started beating him and Mukesh with the intention to kill them. Some how Mukesh came out from the shop, accused Pratap and Janki Prasad pushed him due to that he fell down, accused Charan Singh picked a stone and landed a stone blow on the head of Mukesh with the intention to kill him but some how Mukesh succeeded in fleeing away from the spot. On hearing his voice Lalit s/o Ramesh Chand r/o D- 1/968 Harsh Vihar, Delhi reached there to pacify the matter but all the above named accused started beating Lalit with lathi, danda and rod. Some one has informed the PCR, PCR reached at the spot and on seeing the police officials all the accused persons run away from the spot and while running one accused Harsh Chand fell down on the road. He alongwith Harish Chand were taken to GTB hospital in PCR and Lalit was taken to GTB hospital by Ct. Manoj on his motor cycle. HC Yad Ram reached at GTB hospital and asked him to make the statement.

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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

Thereafter, he and Lalit told to the police officials that they would make statement after receiving treatment. He and Lalit tried to trace the injured Mukesh, after receiving treatment they again reached at GTB hospital and came to know that his step brother Mukesh was got admitted in GTB hospital in an unconscious condition. All the accused namely Harish Chand, Charan Singh, Janki Prasad, Rinku & Partap forcibly with the intention to kill him, Lalit and Mukesh, enter into the shop of Mukesh with lathi, danda and rod in their hands."

3. After registration of the case investigation was initiated by Inspector Ajay Singh Negi. IO inspected the spot and prepared the site plan. Spot was also photographed. Blood stained earth, blood stained stone and sample earth were taken in possession and sealed in a separate pullanda sealed with the seal of ASN. Statement of witnesses were recorded.

4. During the course of investigation on 26.11.06 an information vide DD no.8 was received at about 2:45 p.m whereby it was informed that Mukesh died in the hospital. Thereafter, investigation of this case was assigned to Inspector C.M. Meena. Section 307 IPC was replaced with section 302 IPC. Accused Rinku and Harish Chand were arrested. Their disclosure statements were recorded and at the instance of accused Rinku an iron rod and a wooden Page 5/92 6 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. danda was got recovered from inside his office. Both these articles were seized in a sealed pullanda with the seal of CMM. On the identification of complainant accused Charan Singh was also arrested from a house at Bhopura and mobile phone belonging to deceased was also recovered from his possession which was seized in a sealed pullanda sealed with the seal of CMM. Disclosure statement of co-accused Charan Singh was recorded. Place of incident was got identified by Charan Singh, Harish Chand and Rinku . Statement of witnesses were recorded. On 27.11.06 postmortem of dead body of Mukesh was got done and dead body was handed over to his family members.

5. On 04.12.06 accused Pratap Singh was arrested. His disclosure statement was recorded, place of occurrence was also got identified by him and at his instance a wooden danda measuring 4 feet length was recovered from a plot situated in eastern side of Ram Leela Ground and was seized with the seal of CMM.

6. Accused Janki Prasad was arrested by Inspector Ajay Singh Negi on Page 6/92 7 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. 31.12.06. His disclosure statement was recorded. Scaled site plan was also got prepared by draftsman. All the exhibits were sent to CFSL. Result of all the MLC's were obtained. After completion of all the necessary investigations and on the basis of material collected by the IO sections of IPC were modified u/s 302/308/452/379/411/147/148/149/34 IPC and report u/s 173 Cr.P.C was presented to the court of Ld. MM.

7. Ld. MM after taking cognizance for the offences u/s 302/308/452/379/411/147/148/149/34 IPC supplied the copies of the challan to all the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.

8. After hearing arguments and on perusal of the material placed on record charge for the offence u/s 147/148/149 IPC, 452/308/302/149/34 IPC was framed against all the accused persons and separate charge for the offence u/s 379/411 IPC was framed against accused Charan Singh to which they all pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.

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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

9. Dr. Arun Kumar, Senior Resident GTB hospital appeared as (PW1), Dr. Arindom, Senior Resident GTB hospital as (PW2), Dr. Arvind Kumar, Lecturer, UCMS, GTB hospital as (PW3), SI Mukesh Kumar Jain, Draftsman as (PW4), Anil Kumar as (PW5), Lalit Sharma as (PW6), Bhagwan Singh as (PW7), Rakesh Kumar as (PW8), Titu as (PW9), HC Prem Pal as (PW10), Ct.. Manoj Kumar as (PW11), Akash Garg as (PW12), Ct.. Gurcharan Singh as (PW13), Dr. Dinesh, Sr. Resident Department of Neurosurgery, GTB hospital as (PW14), Ct.. Mangat Singh as (PW15), HC Narain Singh as (PW16), R.P. Tomar, as PW (17), Dr. Parmeshwar Ram, CMO GTB hospital as (PW18), ASI Yad Ram as (PW19), HC Vijay Kumar as (PW20), HC Chottey Lal as (PW21), SI Rajnikant as (PW22), Retired HC Jai Singh as (PW23), SI Ajay Singh Negi as (PW24), Ct.. Ombir as (PW25) and Ct. Inspector C.M. Meena as (PW26).

10.Brief testimony of all the PW's are as follows:

(i) PW1 Ram Kumar deposed that on 12.01.07 he examined neuro surgical record of injured Anil s/o Brij Pal and as per his report nature of injuries were simple in nature. Report is Ex. PW1/A. Page 8/92 9 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

(ii) PW2 deposed that on 27.1.07 he gave an opinion with regard to nature of injuries as simple on the basis of Neuro Surgical record on the MLC of injured Lalit Sharma. His opinion is Ex. PW 2/A.

(iii) PW3 deposed that on 27.11.06 he conducted the postmortem of dead body of one Mukesh brought by Inspector C.M. Meena of PS Nand Nagri with alleged history of assault.

On general observation he noticed as under :

"Dead body of young adult male of average built, wearing brown full sleeves sweater, white printed with orange flower shirt, blue colour jeans Pent, button of the jeans pent was broken, white cotton thread was used as a belt. Shirt and Sweater was stained with blood on the back and collar. On right side of jeans dirt was present. Blue colour ink was noticed over both thumbs of hands, surgical dressing was present over the forehead. Black colour sacred thread with metallic tabiz was present around the neck. Red colour sacred thread with three stones, one of red in colour and two of black Page 9/92 10 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

in colour were present over the right wrist.

Rigor mortis was present all over the body, hypostasis was present over the back, eyes and mouth were closed. Pari orbital haemotoma was present around the left eye. Face and scalp was stained with blood.

Following eight injuries were also noticed :

i) Reddish abrasion of size 4 cm x 3cm on lateral aspect of right thigh, 15 cm below iliac crest.

ii) Reddish abrasion of size 3 cm c 1.8 cm on left forehead, 0.8 cm above lateral edge of left eye brow.

iii) Lacerated wound of size 1.3 cm x 0.2 cm present over left temporal region, 6 cm above left ear and 10 cm above outer lateral edge of left eye brow surrounded by reddish abrasion of size 3 cm x 2 cm wound was surgically stitched.

iv) Reddish abrasion of size 4.5 cm x 4 cm present over the vertex on the midline 11 cm above to root of the nose.

v) Lacerated wound of size 2.5 cm x 0.5 cm x bone deep present behind right ear, 9 cm away from the Page 10/92 11 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

lateral edge of right eye brow, 7 cm below right parietal eminence surrounded by abrasion of size 4 cm x 3 cm wound was surgically stitched.

vi) Lacerated wound of size 1.5 cm x 0.2 cm x bone deep surrounded by abrasion of size 3 x 3 cm present behind the right ear, 2 cm below to injury no.5.

Vii) Reddish abrasion of size 4 cm x 3 cm present over the pinna of right ear over the helix.

Viii)Reddish abrasion of size 6 cm 1.4 cm vertically placed in front of right ear, 1 cm away from tragus.

On Internal examination it is observed as under :

Scalp having extravasation of blood present all over the scalp except over the forehead. Skull having multiple fissured fracture as shown in diagram on page 3 of postmortem report.

Brain was 1220 gm, congested and edematous. Extra dural hemorrhage was present over left and right parieto temporal area and left frontal area. Diffused sub dural hemorrhage was present over Page 11/92 12 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

the brain. Contusion was present over the right temporal and right parietal lobe and left temporal lobe, laceration was present over right parietal and temporal lobe. Intra cerebral hemorrhage was found present over right parietal lobe.

Both lungs having contusion present over the anterior surface, stomach was found to contain about 200 gm semi digested food and walls were normal. Haemotoma was present over peri nephric area of left kidney, however, other internal organ of body were found normal.

In view of the aforesaid injuries noticed after postmortem examination he gave his opinion as follows :

"Time since death was about one day and cause of death was shock due to anti mortem injury to head resulting cranio-cerebral damage produced by blunt force impact."

It is further opined that all the injuries were antimortem in nature and injury no. 3,5,6,7 & 8 were sufficient to cause death in ordinary course of nature individually and collectively.

Page 12/92 13 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. He also preserved blood stained clothes and blood soaked gauge piece under the seal of AK. Postmortem report is in his own handwriting and is Ex. PW PW3/A bearing his signature at point A. During his cross examination by Sh. S.K. Ahluwalia Advocate on behalf of accused Pratap he deposed that in both the documents I.e MLC and death summary deceased was shown as unknown at the time of his examination vide MLC No. A-4965/06 dated 26.11.06 however, he mentioned the name of deceased as Mukesh when it was revealed by the IO.

During cross examination by Sh. Malkhan Singh Advocate for accused Rinku he deposed that age of the injuries shown on the postmortem report was about 24 hours before death. He also deposed that he had seen the MLC bearing no. A-4965/06 and only three injuries are mentioned on the MLC. He also deposed that deceased would have taken meal about six hours before death and in case of normal healthy person stomach empties 2-4 hours after taking meals depending upon the nature of the food. He further deposed that all the injuries could be possible by the blunt force given by a heavy stone or brick. On receiving such type of injuries a person might die immediately in Page 13/92 14 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. case of no medical intervention.

During cross examination by Sh. J.P. Singh Advocate on behalf of accused Janki, Charan Singh and Harish Chand he deposed that after receiving such type of injuries a patient could not able to run.

Rest of his testimony is reiterated by him as submitted by him during examination in chief.

(iv) PW4 is the draftsman and deposed that on 2.1.07 he visited the place of occurrence i.e C1/486 Harsh Vihar alongwith Inspector C.M. Meena. He prepared rough notes and took measurements on the pointing out of Inspector C.M. Meena. On 6.1.07 he prepared scaled site plan on the basis of rough notes and measurements which is Ex. PW PW4/A bearing his signature at point A. During his cross examination he reiterated his testimony as submitted by him during examination in chief.

(v) He deposed that on the 25th day of the year 2006 (month not known) it was winter and on that day at about 7 p.m he reached at the spot of deceased Mukesh situated at Harsh Vihar. On that day at about 10 p.m he and deceased Mukesh were present at the shop, in the meantime accused Page 14/92 15 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Charan Singh (witness correctly identified) reached there at the shop and demanded Raj Darbar Gutakha from Mukesh. When Mukesh demanded money from Charan Singh and he refused to give him gutakha without making payment, accused Charan Singh extended threat while saying that he was "dada" of locality. After 10-15 minutes accused Charan Singh again reached at the spot alongwith his associates and he can identify all of them by face but not by name and accordingly, he pointed out towards accused Charan Singh, Rinku, Partap, Harish Chand and Janki Prasad and correctly identified them as associates of accused Charan Singh. They all were having lathi, danda and rod in their hands and started beating him and Mukesh with lathi, danda and rod. Accused Charan Singh gave iron rod blow on his head. Accused Rinku and Partap gave beating to Mukesh with danda and rod. Accused Rinku and Pratap also pushed Mukesh outside the shop due to that he fell down. Accused Charan Singh picked up a stone and landed stone blow on head of Mukesh. Many persons collected at the spot. Accused Rinku and Partap forcibly dragged and took Mukesh towards their house and other persons kept beating to him. In the meantime one Lalit nearby resident reached there and tried to save him from the clutches of accused persons and in the said process Lalit also received injuries in the hands of accused persons. Page 15/92 16 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. He further deposed that someone informed the PCR. PCR van reached at the spot. Rakesh brother of Mukesh also reached there. He also deposed that during the process of quarrel accused Harish Chand (correctly identified by the witness) also received injuries due to fall. PCR van took him and co- accused Harish Chand to hospital. Rakesh brother of Mukesh also accompanied them. Injured Lalit was also taken to hospital on a motor cycle. He further deposed that he was busy in search of Mukesh, therefore, he could not give his statement to the IO. When Mukesh did not meet him, he and Rakesh returned to the shop of Mukesh in his search but he was not found there. They both closed the shop and had gone to PS and when they asked about Mukesh, police official threatened them to put up in the lock up. His Mausi Saroj informed them on telephone that police officials took Mukesh to hospital as he was lying unconscious at Ram Leela Ground. On receipt of this information through Saroj they both went to GTB hospital and found Mukesh admitted there in serious condition. Police official recorded his statement Ex.PW5/A in the hospital bearing his signature at point A. Police official took him and Lalit to PS and from PS they both were taken to the spot. Police official seized a blood stained stone from the spot and also prepared some other documents. Stone was seized in a sealed pullanda and taken in Page 16/92 17 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. possession vide memo Ex. PW PW5/B bearing his signature at point A. Police official also took them to Ram Leela ground from where Mukesh was taken to GTB hospital and they took blood stained earth in a plastic container vide memo Ex. PW5/C. Earth without blood was also lifted, kept in a plastic container and seized vide memo Ex. PW5/D. All the memos bearing his signature at point A. All the accused persons present in the court were arrested vide arrest memo Ex. PW 5/E, PW5/F, PW5/G, PW5/H, PW5/J and PW5/K respectively. All the memos bearing his signature at point A. He further deposed that accused Rinku and Pratap got recovered a rod and lathi (but he failed to explain as to from where Lathi and dandas were recovered). Accused persons were also interrogated in his presence. He further clarified that accused Rinku, Pratap and Harish were arrested and interrogated in his presence.

During cross examination of witness by Ld. Addl. PP for state on some points he deposed that accused Pratap was not arrested however, only Charan Singh was arrested on that day. He further stated that accused Charan Singh, Rinku and Harish Chand were also interrogated in his presence and their disclosure statement Ex.PW5/L, PW5/M and PW5/N were recorded, all bearing his signature at point A. He further deposed that accused Rinku took Page 17/92 18 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. them to his office of Tour Travel at Lal Mandir, Harsh Vihar and got recovered blood stained danda and rod. These were sealed in a pullanda and was taken in possession vide memo Ex. PW 5/O. He further deposed that accused Charan Singh got recovered a mobile phone make Matrola Tata belonging to Mukesh and said mobile phone was also seized in a sealed pullanda vide memo Ex. PW5/P. He also specifically stated that occurrence had taken place on 25.11.06.

A sealed pullanda sealed with the seal of CFSL was opened and saria and two dandas were taken out. He identified saria Ex. P1 and big danda Ex.P2 and deposed that those were the same which were got recovered by accused Rinku. Another sealed pullanda sealed with the seal of CMM is opened and a mobile phone is taken out. Mobile phone Ex. P3 is the same which was recovered by accused Charan Singh.

During cross examination by Sh. J.P. Singh Advocate on behalf of accused Charan Singh, Janki Prasad and Harish Chand he deposed that all the accused persons were known to him by face as they all were residing in a gali in front of shop of Mukesh on 16.8.07 he clarified that vehicle which he used Page 18/92 19 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. to ply was a van belonging to his mausi Saroj and on the day of incident when Charan Singh demanded Raj Darbar Guthkha from Mukesh then he told to Charan Singh to pay his earlier dues, then he would gave the guthaka and he also denied the suggestion that on 25.11.06 shop was closed and he was not present at the shop. He further deposed that Charan Singh assaulted on the head of Mukesh with stone once. He also denied the suggestion that he had refused to make statement in the hospital as he was not aware of about the identity of accused.

During further cross examination on 6.11.07 by Sh. J.P. Singh Advocate he deposed that village Dhanora District Bagpat, UP is his native village but he denied the suggestion that deceased does not belong to his cast. He also denied the suggestion that police had lifted and seized half brick from Ram Leela Ground vol stated it was lifted and seized from the plot in front of shop. He further deposed that he was not present with the police at the time of arrest of Charan Singh and mobile phone was not recovered in his presence. He denied the suggestion that incident had taken place at Friday Market road chowk or that in this incident Mukesh was not present or that quarrel had taken place between him, Harish Chand and Lalit. He also stated that distance of Ram Leela ground from his shop is about 10-15 minutes walking Page 19/92 20 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. distance. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

During cross examination of PW5 by Sh. Malkhan Singh Advocate on behalf of accused Rinku and Pratap he deposed that his mother belongs to village Agrola and mother of deceased Mukesh belongs to Agra and on 16.8.07 he stated in the court that mother of deceased is his mausi, which he had stated at the instance of his counsel and he admitted that mother of deceased was not his mausi and both are not of same cast. He further deposed that name of accused persons were not known to him at the time of quarrel, therefore, he did not disclose the name of accused before the police officials and he came to know the name of Charan Singh as it was revealed by Mukesh. He further deposed that his signatures were obtained by the police officials on 5-6 blank papers at 2-2:30 a.m in the intervening night of 26-27. He further deposed that he had not seen the office of Tour Travels and had also not seen the Lal Mandir and he had not got recovered any danda and rod from the office of Tour and Travel situated at Lal Mandir, Harsh Vihar. He also admitted that he alongwith Lalit were detained at PS till morning and they were confined at PS by the police officials while saying that they would be booked for this offence (tumne jhagra kiya hai tum per bhee case lagega). He further deposed that Page 20/92 21 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. he did not tell to the police that accused Rinku and Pratap had beaten Mukesh with danda and rod and thereby he confronted from his statement Ex.PW5/A where it is so recorded. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

(vi) PW6 deposed that on 25th day of 2006 (month not known) at about 10 p.m he was present at his house. He heard a noise from the grossery shop in his gali. He reached there and found accused Harish Chand and Charan Singh giving beating to Anil. Anil told him that Mukesh run away due to fear and Anil asked him to help him. He rescued him and in this process he also received injuries on his head. Accused Harish Chand caused injury on his head with danda. No other persons were present there except Anil. Charan Singh and Harish Chand. He also took Anil to his house to save him. He further deposed that in the meantime PCR van reached there. Rakesh elder brother of Mukesh also reached there. Police officials took injured Anil and Harish Chand in PCR van. Rakesh also accompanied in the PCR van. He was taken to hospital by constable on motor cycle and was got medically examined, thereafter, they went to PP Harsh Vihar. They also searched for Mukesh but he could not be searched, later on he came to know that Mukesh was lying at Ram Leela Ground and police official got him admitted at GTB Page 21/92 22 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. hospital. Police official kept him at police post for about two days. His statement was recorded by the police official, his signatures were also obtained on some papers while deposing so he resiled from his statement recorded by the IO on some points, therefore, Ld. Addl. PP for state after seeking permission cross examined the witness and during his cross examination by Ld. Addl. PP for state he specifically denied the suggestion that on 25.11.06 at about 10 p.m when he reached near house no. C-1/486, he saw accused Janki, Rinku and Pratap all resident of Harsh Vihar were beating to Anil with lathi, danda and rods and he did not reveal the name of Janki, Rinku and Pratap to police while deposing so he confronted from portion A to A of his statement Ex. PW6/A wherein the name of Janki, Rinku and Pratap are mentioned. He also denied the suggestion that when he was trying to save Anil, accused Janki, Rinku and Pratap had given beating to him and thereby he confronted from his statement Ex. PW 6/A from portion B to B. He further deposed that police official had taken him and Anil to Ram Leela ground and prepared site plan of the spot and also lifted some blood stained earth and earth control vide memo Ex.PW5/C and PW5/D, prepared in his presence bearing his signature at point A. He also admitted that police official took him and Anil in a gali no. 18 in front of house no. C-1/486 and prepared site plan on the pointing out of Anil but he denied the suggestion that police Page 22/92 23 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. official lifted the blood stained stone from the vacant plot in front of house no. C-1/486 but he admitted his signature on the memo Ex. PW 5/B whereby the blood stained stone was taken in possession. He further stated that he did not state to the police that accused Rinku and Harish Chand were arrested from house no. C-485 near Lal Mandir Harsh Vihar on his identification as well as on the identification of Anil, thereby he confronted from his statement Ex. PW 6/B from portion A to A wherein it was so recorded. He also confronted from portion B to B of his supplementary statement Ex.PW6/B but he identified his signature on memo Ex.PW5/O at point B. He admitted that accused Charan Singh got recovered a mobile phone make motorola from his pocket. It was sealed in a pullanda and taken in possession vide memo Ex.PW5/E. He also identified mobile phone Ex.P3 when shown to him in the court. He also admitted that accused Rinku has been running the business of tour and travels at Harsh Vihar but he denied the suggestion that accused Rinku got recovered wooden danda and iron rod from the said office. During cross examination by Sh. J.P. Singh Advocate on behalf of accused Charan Singh, Janki Prasad and Harish Chand he deposed that distance of place of occurrence from his house was about 300/400 yards. He specifically stated that Anil did not call him at the shop however, on hearing noise he Page 23/92 24 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. reached there and it was the time of about 9:30/9:45 p.m. On reaching there he saw that accused Harish Chand and Charan Singh were beating Anil with dandas and he also admitted that after occurrence he took Anil to his house to save him. He also admitted that he received injuries on his head when he tried to save Anil and he also denied the suggestion that accused Charan Singh was not present at the spot or that he had not beaten him and Anil. He also admitted that he had seen the blood lying at Ram Leela Ground but he denied the suggestion that quarrel had taken place between him and Anil and Harish Chand and no other person was present there vol. Mukesh was present there. He also denied the suggestion that Mukesh was killed in another quarrel by some unknown person and he had not received any injuries in the quarrel at his shop. Rest of his testimony is reiterated by him as submitted by him during his examination in chief as well as in his statement u/s 161 Cr.P.C duly recorded by the IO.

During cross examination by Sh. Malkhan Singh Advocate for accused Rinku and Pratap he deposed that he had not stated to the police that Rinku, Pratap and Janki Prasad were beating Anil with dandas and rods. He had only stated that accused Charan Singh and Harish were beating Anil with danda and rod. He also stated that he did not state to the police that all the five persons Page 24/92 25 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. caused beating to him with the intention to kill him. In fact he had stated to the police the names of Harish and Charan Singh. The question was also put to the witness to the fact that "despite of the fact that police threatened him while saying he was the murderer and would be arrested and prosecuted to which he replied that police ne kaha tha ki tum kya kar rahe thee waha jhagda kara tha tu sabko janta hai tu inka dost hai aur inko bacha raha hai". Rest of his testimony is reiterated by him as submitted by him during examination in chief.

(vii) PW7 deposed that he constructed three shops at C-486 Harsh Vihar. His son Mukesh had been running a grossery shop in one of the aforesaid shop since 01.11.06. He received a telephonic call from his wife Saroj that she had received a telephonic call from Mukesh that quarrel had taken place between Mukesh, Charan Singh, Janki, Hari Chand, Ram Niwas and other four persons, they all extended threat upon Mukesh that they would be coming back with their friends and requested him to come to the house forthwith. He also directed his wife to reach at the spot with Rakesh on motor cycle and he assured her that he would be coming very soon. He also gave telephonic call to his son Mukesh on his mobile but it was found switched off. He reached at the spot on his bicycle, till then PCR also reached at the spot. Page 25/92 26 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. On reaching there he saw Lalit, Harish Chand, Anil and his son Rakesh sitting in a PCR van. He further deposed that he asked from his son Rakesh about the whereabouts of his son Mukesh to which he replied that Mukesh had sustained injuries. Rinku and Pratap had taken Mukesh somewhere else in the street. Thereafter, he searched for his son Mukesh in the house of his relatives but he was not found there. He further deposed that on the next day morning at about 5/5:30 a.m he received an information that his son Mukesh was got admitted in GTB hospital and thereafter he immediately went to GTB hospital on his bicycle. On reaching there he came to know that his son was got admitted in room no. 251 in the hospital. He reached in that room and found Mukesh in unconscious condition. Blood was also coming from his nose, mouth, ear and head. He was having injuries on his eyes. He further deposed that his son Mukesh died in the hospital at about 11:40 a.m and after postmortem dead body was handed over to him. A leading question was also asked by Ld. Addl. PP for state to the witness with regard to factum of tracing of his son Mukesh to which he confronted from his statement Ex.PW7/A from portion A to A while giving answer however, he admitted that mobile number of Mukesh was 9213328945.

During his cross examination by Sh. S.K. Ahluwalia Advocate for accused Page 26/92 27 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Pratap he deposed that Ram Niwas was inside the police post and he was already arrested by the police. Ram Niwas was detained for 3 / 4 days and thereafter, he was released by the police official. During his cross examination he confronted from his statement Ex.PW7/A wherein the facts which were stated by him in his examination in chief were not so recorded. Rest of his testimony is reiterated by him as submitted by him during examination in chief. During his cross examination by Sh. Malkhan Singh Advocate on behalf of accused Rinku he deposed that he came to know about the incident first time at about 9:45/10 p.m on 25.11.06 and at that time his son Rakesh was already at his house. Rest of his testimony is reiterated by him as stated by him during examination in chief as well as during cross examination by Sh. S.K. Ahulwalia Advocate on behalf of accused Pratap.

(viii) PW8 is the brother of deceased and deposed that on 27.11.06 he identified the dead body of his brother Mukesh in the mortuary vide identification memo Ex.PW8/A. He further deposed that his brother Mukesh was using a mobile phone make motorola / Tata and later on he came to know that said mobile was recovered from the accused person. He handed over the photostat copies of the bill of said mobile phone to the police vide Page 27/92 28 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. memo Ex.PW8/B. He also produced original bill and had seen photostat copy of the bill Ex.PW8/C (original seen and returned).

During his cross examination he stated that he had seen the mobile phone at PS on 27.11.06 and it was not sealed by the police official in his presence.

(ix) PW9 deposed that deceased Mukesh was his cousin. On 27.11.06 he identified his dead body in the mortuary vide identification memo Ex.PW9/A and after postmortem dead body was received by them.

(x) PW10 deposed that on 25.11.06 he was posted as constable at PP Harsh Vihar of PS Nand Nagri. On that day he was on emergency duty from 8 p.m to 8 a.m. On receipt of DD no.38 Ex.PW10/A he alognwith SI Rajni Kant and HC Yad Ram reached at C-Block Ram Leela Ground Harsh Vihar and found a boy aged about 20 to 22 years lying in an injured condition. Blood was also lying there. SI Rajni Kant called CAT Ambulance through wireless message and injured was taken to GTB hospital while leaving him at the spot. SI Rajni Kant alongwith other staff also accompanied injured to GTB hospital. On next day i.e 26.11.06 at about 9 a.m he alognwith SI Ajay Singh Negi, Anil, Page 28/92 29 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Lalit and HC Yad Ram reached at the spot. Photographer was called at the spot who had taken photographs of the spot from different angles. SI Ajay Singh Negi lifted the blood stained earth and sample earth from the spot i.e from Ram Leela Ground C Block Harsh Vihar, kept in a plastic dibbi, sealed with the seal of ASN and were seized vide memo Ex. PW 5/C bearing his signature at point X. He further deposed that Lalit and Anil had taken them at another place i.e gali no.18, C block Harsh Vihar in front of house no. 486 from there Anil got recovered one stone having blood stains lying in open place adjacent to open plot. Anil also disclosed that it was the same stone with which Charan Singh inflicted injuries on the head of Mukesh. The said stone was also taken in possession vide memo Ex,.PW5/B and sealed with the seal of ASN. A separate memo of seizure of sample earth from the spot i.e from Ram Leela Ground C block Harsh Vihar Ex.PW5/D was also prepared. He also identified one stone and clothes when shown to him and deposed that stone Ex.P1 is the same which was got recovered by Anil Kumar in his presence.

During cross examination by ld. Respective counsels on behalf of all the accused he reiterated his testimony as submitted by him during examination in chief, however, on perusal of the entire cross examination conducted by the Page 29/92 30 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. respective counsels no new facts is brought on record except the facts which have been earlier stated by the witness during his examination in chief.

(xi) PW11 deposed that on 25.11.06 he was on patrolling duty. On that day at about 10:30 p.m he reached at gali no. 19 Harsh Vihar and saw a PCR van was already present there. PCR official took Anil and Harish Chand to GTB hospital and he took Lalit to GTB hospital on his motor cycle for their medical examination. After medical examination of Lalit, HC Yad Ram reached at GTB hospital and he brought Lalit to police post. During his cross examination he reiterated his testimony as submitted by him during examination in chief.

(xii) PW12 deposed that in the year 2006 he was running a photographer's shop at A2/69 Subash Kansal Marg, Harsh Vihar. About one and half year ago (date, month not remember), two police officials came to his shop and took him to Ram Leela ground C block, Harsh Vihar. He took three photographs of the spot as per directions of police official. Photographs are Ex. PW 12/A to C. He cannot produce the negatives of the photographs as he had destroyed the negatives after closing the shop.

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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. During his cross examination by Ld. Counsel for accused he stated that he handed over the photographs to the police official after two/three days and at that time police official had not demanded the negatives from him.

(xiii) PW13 deposed that on 27.11.06 he joined the investigation of this case with Inspector C.M. Meena and on that day at about 10 a.m., they had gone to the mortuary of GTB hospital and after conducting the postmortem of dead body of deceased Mukesh, his dead body was handed over to his relatives vide receipt Ex. PW13/A bearing his signature at point A. He further deposed that he produced the accused persons in the court and again on 29.11.06 he had gone to the mortuary of GTB hospital and collected three sealed pullandas with the seal of AK and handed over to the IO which were taken in possession vide memo Ex. PW13/B. During his cross examination by Ld. Counsel for accused Rinku and Pratap he deposed that all the pullandas were sealed by the doctor in his presence and in one pullanda the clothes of deceased Mukesh were sealed, in another pullanda blood sample of deceased was sealed and third one was the sample seal. He further deposed that seal after use was not handed over to him and only sample seal was handed over to him. Rest of his testimony is reiterated Page 31/92 32 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. by him as submitted by him during examination in chief.

(xiv) PW14 produced the record of death certificate of MLC bearing no. A-4965/06 dated 26.11.06 issued by Dr. Sachin Goel, Sr. Resident. He also produced the death summary pertaining to Cr. no. 200608068411 dated 26.11.06 prepared by Dr. Sachin Goel, Sr. Resident. Copies of the same on record are Ex. PW14/A and Ex.PW14/B. Dr. Sachin Goel has now left the services of the hospital. He had worked with him during his tenure and is competent to identify his hand writing. Accordingly he identified the hand writing and signature of Dr. Sachin Goel on both the exhibits. During his cross examination he deposed that he had no personal knowledge regarding, death summary and death of deceased. He also admitted that death summary was neither prepared nor signed in his presence. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

(xv) PW15 deposed that on 25.11.06 he was posted as a Rojnamcha Munshi at PP Harsh Vihar. He also produced the original DD register w.e.f 20.11.06 to 18.12.06 of PP Harsh Vihar. He further deposed that on 25.11.06 he recorded DD no.27,29 and 38 at PP Harsh Vihar and true copy of the Page 32/92 33 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. same is Ex.PW15/A to C (original seen and returned). Photocopy of the original register are collectively Ex.PW15/A1 running into two pages. During his cross examination he stated that DD no. 27 and 29 was recorded by him and on the basis of information given by PCR Bita 5 through wireless set. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

(xvi) PW16 is the duty officer and deposed that on 26.11.06 he was on duty from 1 a.m to 9 a.m and on that day at about 7:20 a.m he registered a FIR bearing no. 989/06 on the basis of rukka sent by SI Rajni Kant through HC Yad Ram. Photocopy of the original rukka Ex.PW16/A bearing his signature at point A. He also made endorsement on the rukka already Ex. PW5/A at point X. His endorsement is Ex.PW16/B. During his cross examination he reiterated his testimony as submitted by him during examination in chief.

(xvii) PW17 deposed that on 26.11.06 he was posted as Assistant Page 33/92 34 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Ambulance Officer CAT and on that day on receipt of a call he went to the spot i.e Ram Leela Ground and took the injured to hospital and got him admitted there.

During his cross examination he reiterated his testimony as submitted by him during examination in chief.

(xviii) PW18 deposed that on 25.11.06 injured Lalit, Anil and deceased (unknown) were brought to GTB hospital by Ct. Manoj, HC Jai Singh and by CAT ambulance. Al the three injured were examined by Dr. Zothuamluaia. He had been authorized by medical suptd. to appear before the court and to identify the signature of Dr. Zothuamluaia on MLC bearing no. A-4963/06 of injured Lalit, on MLC bearing no. C-4833/06 of injured Anil and MLC bearing no. A-4965 of deceased (unknown) as Dr. Zothuamluaia has now left the services of the hospital and his present whereabouts are not known. He identified the signature of doctor on the MLC Ex.PW18/A, B and C respectively.

He further deposed that nature of injury on the MLC of injured Lalit and Anil Page 34/92 35 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. were opined as simple caused by blunt object and no opinion was given on the MLC of unknown person. He further deposed that on perusal of the record name of unknown injured person was revealed as Mukesh and he was declared dead at about 12:00 a.m as mentioned on the death summary Ex.PW14/B. During his cross examination he reiterated his testimony as submitted by him during examination in chief except the fact that he has no personal knowledge about the contents of the MLC's and these MLC's were not prepared or signed in his presence.

(xix) PW19 deposed that on 25.11.06 he was on petrolling duty from 8 p.m to 8 a.m. On that day at about 10.10 P.M and 10.25 P.M he received informations with regard to occurrence of quarrel vide DD no. No. 27 & 29 respectively. On receipt of the aforesaid information he reached at the spot i.e C-1 Block Shuker Bazar Road, Harsh Vihar. On reaching there he came to know that injured had already been taken to GTB Hospital by Const. Manoj Kumar who was also on patrolling duty in the area. He reached at GTB Page 35/92 36 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. hospital and obtained the MLC of injured Harish Chand, Lalit and Anil. Anil and Lalit met him in the hospital but Harish Chand was not found present there. Lalit and Anil refused to got their statement recorded in his presence. Thereafter, he returned to PP Harsh Vihar and informed the senior officers about the incident. He also handed over the three MLCs to SI Rajni Kant on the direction of Incharge PP Harsh Vihar.

He further deposed that on 26/11/06 at about 3 a.m an information vide DD no. 38 was received by SI Rajni Kant wherein it was informed that an unknown person was lying unconscious in an injured condition in the Ram Leela Ground. On receipt of this information SI Rajni Kant, H.C Prem Pal reached there on motor cycle and he reached there on foot. On reaching there they found a young boy lying on the ground in an injured and unconscious condition. Blood was also lying on the earth. CAT Ambulance was called by SI Rajni Kant and injured was shifted to GTB Hospital. He along with SI Rajni Kant reached at GTB Hospital on motor cycle and H.C Prem Pal was left at the spot. MLC of injured was obtained by SI Rajni Kant. He also prepared rukka and handed over to him for registration of the case. He got the case Page 36/92 37 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. registered at P.S Nand Nagari and investigation was assigned to SI Ajay Singh Negi. IO SI A.S Negi reached at police station and he handed over the copy of FIR and the rukka to him. Injured Lalit and Anil disclosed the name of the injured as Mukesh in his presence. He further deposed that he along with IO/SI A.S Negi again reached at GTB Hospital, SI Rajni Kant handed over all the four MLCs to IO/SI A.S Negi. He along with IO/A.S Negi, Lalit and Anil came back to the spot i.e Ram Leela Ground. IO lifted the blood stained earth from the spot and he was directed to call the photographer. Photographer reached at the spot and took the photographs of the spot from different angles. From there he along with IO A.S Negi, Lalit and Anil went to spot i.e C-1/486 Harsh Vihar of which they have already received an information vide DD no. 27 & 29. A blood stained stone was also taken in possession from the spot i.e near C-1/486 Harsh Vihar and sealed in pullanda sealed with the seal of ASN and all the exhibits were deposited in the Malkhana. During his cross examination by Ld. Counsel for accused persons he deposed that he reached at Shuker Bazar at about 10.30 P.M and distance between Shuker Bazar and Ram Leela ground is about 50-60 mtrs. He also stated that Page 37/92 38 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. clothes worn by H.C Prem Pal was also got stained with the blood of the injured at the time of his lifting. He also stated that he cannot tell to whom the seal after use was given by the IO. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

(xx) PW20 deposed that on 26.11.06 at about 4 p.m SI Ajay Singh Negi alongwith two persons namely Lalit and Anil were present at police post and he was directed by Inspector C.M. Meena to join the investigation of this case. Ct. Anil also joined the investigation with him. On that day at about 4:20 p.m he alongwith other police officials and public persons namely Anil and Lalit reached at Harsh Vihar in a vehicle make Qualies in search of accused persons. Anil and Lalit took them at house no. C-485 Harsh Vihar belonging to accused Rinku. They all entered into the said house. Three/four persons were present inside the house. Out of which two persons were identified by Anil and Lalit as Rinku and Harish. They both are present in the court. Both accused were interrogated by inspector C.M. Meena and were arrested vide arrest memo Ex.PW5/G and F, their personal search memo is Ex.PW5/J and PW5/K, both accused were brought to PS, their disclosure statement were Page 38/92 39 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. recorded and thereafter they again proceeded for Harsh Vihar in the same vehicle. When they reached at Lal Mandir road accused Rinku pointed out a house in the compound of a temple as his office. Accused Rinku took out an iron rod and danda from his office, blood stains were visible on danda and iron rod. Danda and iron rod were converted into parcel and parcel were already Ex.PW5/O. Accused Harish Chand took them to Bhopura in the house from where accused Charan Singh was arrested on the identification of Anil and Lalit. He was interrogated and arrested vide arrest memo already Ex.PW5/E and personal search memo is Ex.PW5/H. During personal search of accused Charan Singh a mobile phone make Metrola was got recovered about which accused Charan Singh disclosed that he had removed the mobile phone from the pocket of Mukesh at the time of his beating. Metrola phone sealed with the seal of CMM and was taken in possession vide memo Ex.PW5/P. Disclosure statement of Charan Singh was recorded. All the three accused persons were taken to police post. Anil and Lalit got set free by the IO after recording their statement. Case property was deposited in the malkhana. Pointing out memo was also prepared at the instance of accused persons. Page 39/92 40

FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. On 31.12.2006 he again joined the investigation of this case with ASI Ajay Singh Negi. On that day, pursuant to an information received by SI Ajay Singh Negi they reached at Harsh Vihar where an informer met them and informed that accused Janaki Prasad was present at his home i.e at gali no. C-1/160 Harsh Vihar. They all reached there and arrested Janaki Prasad vide arrest memo Ex.PW20/A. His personal search was conducted vide memo Ex.PW20/B, disclosure statement of Janaki Prasad is Ex.PW20/C. He also identified the iron rod, danda and mobile phone metrola Ex.P1A, P2 and P3 respectively.

During his cross examination by Ld. Counsel for accused persons he reiterated his testimony as submitted by him during examination in chief. (xxi) PW21 deposed that on 4.12.06 he joined the investigation of this case with Inspector C.M. Meena and at the instance of informer accused Pratap was arrested vide his arrest memo Ex.PW21/A and his personal search was conducted vide memo Ex.PW21/B, his disclosure statement was Page 40/92 41 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. recorded vide memo Ex.PW21/C. Pointing out memo of the place of occurrence was also prepared at his instance. Accused also took them to Ram Leela ground and picked up a danda measuring about 4 feet, said danda was taken in possession and sealed with the seal of CMM. Arrest memo is Ex.PW21/D. Case property was deposited in Malkhana. He also identified the danda Ex.P5 when shown to him in the court.

During his cross examination he reiterated his testimony as submitted by him during examination in chief.

(xxii) PW22 deposed that on 25.11.06 he was on emergency duty at PP Harsh Vihar from 8 p.m to 8 a.m. In the intervening night of 25/26.11.06 at about 2:30 a.m HC Yad Ram had handed over to him three MLCs belonging to Anil, Hari Chand and Lalit Sharma. He further deposed that on that day at about 3 a.m an information was also received at PP Harsh Vihar DD no. 38 that a person was lying in an injured condition at C block Ram Leela Ground, Harsh Vihar. On receipt of this information he alongwith HC Yad Ram and Ct. Pem Pal reached at the spot and found one person lying in an injured condition. He informed the CPR and PCR van reached at the spot. The Page 41/92 42 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. injured was shifted to GTB hospital by the CAT ambulance. Ct. Prem Pal was directed to remain at the spot. He alongwith HC Yad Ram went to GTB hospital and found an unknown person admitted vide MLC no. 4965/06. Injured Anil and Lalit also reached there and they identified that unknown injured as Mukesh s/o Bhagwan Singh. He recorded statement of Anil vide memo Ex. PW5/A and gave his endorsement vide Ex. PW22/A, prepared a rukka and handed over to HC Yad Ram for registration of the case. After registration of the case investigation of this case was assigned to Inspector Ajay Singh Negi, therefore he handed over all the four MLC's of the injured persons to IO.

During his cross examination he deposed that accused Charan Singh present in the court was already known to him as he was arrested by him in another case and denied the suggestion that he had introduced the name of Janki Prasad and Harish Chand in the statement of complainant of his own. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. (xxiii) PW23 deposed that on 25/11/06 he was posted as in-charge PCR van B-15 and on that day on receipt of information from the control room, he went to Harsh Vihar and on reaching there he found two injured persons Harish Chand and Anil were present there. He took them to GTB hospital and got them admitted. He also entered these facts in his Log Book of PCR which has been destroyed pursuant to the order of Ld. ACP dt. 31/5/2010. (xxiv) PW24 is the IO of this case and deposed that on 26/11/06 he was posted as Incharge PP Harish Vihar and on that day as per directions of SO PS Nand Nagri investigation of this case was assigned to him for further investigation. Thereafter he went to PS Nand Nagari where H.C Yad Ram met him and handed over the copy of FIR and original rukka to him. HC Yad Ram also told him that SI Rajnikant who was the first IO was present at GTB Hospital and accordingly, he accompanied HC Yad Ram and reached at GTB Hospital where SI Rajni Kant met him. SI Rajni Kant handed over him four MLCs to him and out of four MLC's one relating to an unknown person and he also revealed that MLC pertains to unknown person was of Mukesh who had been declared unfit for making statement by the doctor. The other MLCs Page 43/92 44 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. pertains to one Lalit, Anil and Harish Chand. He further deposed that injured Lalit and Anil met him in the hospital and SI Rajni Kant introduced them as eye witness of the incident. He interrogated SI Rajni Kant and also recorded his statement. He also went inside the causality and came to know that injured Mukesh was under treatment. On making inquiry from the doctor injured was declared unfit for making statement. He along with H.C Yad Ram and two eye witnesses Lalit and Anil reached at Ram Leela Ground Harsh Vihar and found Const. Prem Pal already present there. He also noticed blood stains at the spot. He directed H.C Yad Ram to arrange private photographer, photographer reached at the spot and took the photographs as per his direction. He also prepared rough site plan on the pointing out of constable Prem Pal and other witnesses vide memo Ex.PW 24/A. He lifted the blood stained earth and sample earth from the spot, kept in different pullandas and sealed with the seal of ASN and seized vide memos Ex.PW 5/C and 5/D. He also visited the spot with eye witnesses Lalit and Anil where the quarrel had taken place. He prepared the site plan ExPW 24/B on the pointing out of eye witnesses Lalit and Anil. He also found one blood stained stone at the spot, and kept the stone in sealed pullanda with the seal of ASN vide memo Ex.PW Page 44/92 45 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. 5/B. He deposited the case property in the Malkhana of P.S Nand Nagari and all the police officials with public witnesses returned to PP Harsh Vihar. On reaching there he got an information from the duty constable that injured Mukesh had expired in GTB Hospital. He informed the factum of death to SHO Nand Nagri on telephone, thereafter SHO directed him that further investigation of this case would be conducted by Inspector C.M. Meena. He had also recorded the statement of witnesses.

After assignment of the investigation to Inspector C.M Meena he handed over the case file to him. IO Inspector C.M. Meena interrogated eye witnesses Lalit and Anil who were present in PP Harsh Vihar. He also organized raiding party consisting of Inspector C.M Meena, himself, const. Gurcharan, const. Vijay, Const. Anil, and eye witnesses Lalit and Anil. They all went to Lal Mandir Road Harsh Vihar and on the pointing out of two eye witnesses accused Rinku and Harish were arrested. They were interrogated and arrested vide memo Ex. PW 5/G and 5/R and their personal search memos were prepared vide memo Ex.PW 5/J and 5/K. Both the accused persons were brought to P.P Harsh Vihar, they were interrogated and their disclosure statement were Page 45/92 46 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. recorded vide memo Ex.PW 5/M and 5/N. Pursuant to their disclosure statement both the accused took the police team to office of Rinku at Lal Mandir Road and at their instance one iron rod and one danda was recovered from his office. IO seized the iron rod and danda in separate pullanda, sealed with the seal of CMM and were seized vide memo Ex.PW 5/O. Thereafter both the accused took the police party to village Bhopura and at their instance accused Charan Singh present in the court was also arrested vide memo Ex.PW.5/E, and his personal search was conducted vide memo Ex.PW.5/H and during his personal search one mobile phone Motrola was recovered from the possession of Charan Singh for which he disclosed that he removed the mobile phone from the pocket of Mukesh at the time of his beating. Mobile phone was also kept in a pullanda sealed with the seal of CMM and seized vide memo Ex.PW 5/P. Accused Charan Singh was interrogated and his disclosure statement vide memo Ex.PW 5/L was recorded. After about an hour, he again joined the investigation of this case alongwith all the three accused persons namely Charan Singh, Rinku and Harish and went to C-1 block Harsh Vihar and pointing out memo Ex.PW24/C was prepared at their instance.

Page 46/92 47 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. He further deposed that on 31/12/2006 he received an information that accused Janki Prasad would come to house No.C-160 Harsh Vihar. IO/Inspector C.M Meena was on leave on that day, therefore, he had given an information to SHO and SHO directed him to act upon the information. He along with his staff went at house No C-160 Harsh Vihar and arrested accused Janki Prasad vide memo Ex.PW20/A, his personal search was conducted vide memo Ex.PW 20/B and his disclosure statement was also recorded vide memo Ex.PW 20/C. Accused Janki Prasad took the police party to the spot and at his instance pointing out memo was prepared vide memo Ex.PW 24/D. He also identified the case property i.e stone which was taken in possession vide memo Ex.PW5/B and Ex.P.1. He also identified the iron rod as Ex.P.1A, danda as Ex.P.2 and mobile phone make Matrola is Ex.P.3.

During his cross examination by Ld. Counsel on behalf of accused Rinku and Pratap he deposed that MLC of both the injured/eye witnesses namely Lalit and Anil were received by him and they both were declared fit for making Page 47/92 48 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. statement but he had not recorded their statement in the hospital and they remained present with him through out the day and he recorded their statement after completion of investigation of that day i.e at about 11:00 a.m. SI Rajni Kant had disclosed the name of unknown injured as Mukesh in the hospital itself i.e in between 8.15 / 8.30 a.m and thereafter the name of unknown injured was mentioned as Mukesh in all the further investigation conducted by him. They reached at Ram Leela Ground Harsh Vihar in between 9.15 a.m to 9.30 a.m. He further deposed that distance between the shop and the place where the blood stained stone was lying was about 10/15 feet. He further stated that no family members were present in the house of Rinku, when Rinku and Harish were arrested and they all remained at the house of Rinku for about 15 to 30 minutes and during that period father of accused Rinku had also entered in that room. He further sated that iron rod and danda which were recovered from the shop were kept in the corner of the shop/office, in an open place and were visible when they entered inside the office. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. (xxv) PW.25 deposed that on 26/11/06 he was posted as constable/DD writer at P.P Harsh Vihar from 8 a.m to 8 p.m and on that day at about 2.15 p.m he received telephonic information through Duty Const. Ram Kumar posted as Duty Constable at GTB Hospital, that a person male, aged about 20 years who was got admitted in GTB Hospital vide DD No.30A died and he informed this fact to IO/Inspector Ajay Singh Negi vide DD No.13 dated 26/11/06 Ex.PW 25/A (Original seen and returned).

(xxvi) PW26 is also the IO of this case and deposed that on 26/11/06 he was posted as Inspector Investigation at P.S Nand Nagari and on that day at about 4.20 p.m the investigation of this case was assigned to him by SHO P.S Nand Nagari, therefore, he reached at PP Harsh Vihar and on reaching there, SI Ajay Singh Negi, Const. Vijay and Const. Anil met him there. He alongwith SI Ajay Singh Negi, Const. Vijay and Const. Anil reached at the spot i.e C-1/486 Harsh Vihar. On reaching there and on receipt of secret information he alongwith all the police officials went to C-485 Harsh Vihar, and from there accused Rinku and Harish were arrested. One danda and one iron Page 49/92 50 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. rod was got recovered at the instance of accused Rinku from his office/shop. They both were arrested, their personal search were conducted, disclosure statement of both the accused were recorded which have already been exhibited. At the instance of both the accused, Charan Singh was also arrested, arrest memo and personal search were conducted which had already been exhibited. Mobile phone was also recovered from the possession of Charan Singh which were taken in possession vide memo already exhibited.

On 27/11/06 postmortem of deceased Mukesh was got conducted and dead body was handed over to the parents of the deceased. Doctor also handed over one sealed pullanda of the clothes of the deceased and one sealed envelope sealed with the seal of AK. He also deposed that on 4/12/2006 at about 8 p.m accused Partap was also arrested in the presence of const. Chottey Lal. His arrest memo and personal search memos Ex.PW 21/A and Ex.PW 21/B were prepared, his disclosure statement was recorded which has already exhibited. He also identified the case properties i.e Ex.P.1, Ex.P.1A, Ex.P.2 , Ex. P2A and Ex.P.3 when shown to him in the court however, PW25 Page 50/92 51 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. corroborated the testimony of all the police officials who have joined the investigation with him.

During his cross examination he reiterated his testimony as submitted by him during examination in chief. Thereafter, no PW was left to be examined, therefore, prosecution evidence is closed and case was fixed for examination of accused u/s 313 Cr.P.C

11. During the course of examination of accused Rinku, Pratap u/s 313 Cr.P.C they controverted all the allegations as alleged against them and submitted that all the PW's are the interested witnesses. They were innocent and have been falsely implicated in this case. They did not desire to lead defence evidence.

12. During examination of accused Harish and Charan Singh u/s 313 Cr.P.C they also controverted all the allegations as alleged against them and submitted that being the brother of accused Charan Singh and Janki Prasad, PW6 Lalit Kumar might have implicated him falsely in the present case. He Page 51/92 52 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. submitted that he was having six children and no criminal case except the present one was ever registered against him. He also did not desire to lead defence evidence.

13. During the course of examination of accused Janki Prasad he also controverted all the allegations as alleged against him and submitted that in the month of May and June a quarrel had taken place between Lalit and one Gautam s/o Kali Charan resident of D block, Harsh Vihar. Gautam had caused injury on the back of Lalit Kumar by using blade/knife. PW6 Lalit requested him to become a witness of incident of that case. He refused to become a witness on the ground that no quarrel had taken place in his presence, since then PW6 Lalit started having grudge against him and that is why he has been falsely implicated in this case. He further submitted that on the day of incident he was not even present in the area of Harsh Vihar and on that day at about 7/7:30 p.m he had left for Kaushi Kalan Mathura. On that day it was Saturday and his friend Sanjeev, Raju and one doctor Sahab had gone with him in an indica car of Raju who had purchased the said car on those days. He alongwith his friends returned to Delhi on next day morning at about 8 a.m. Page 52/92 53 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. He further submitted that he had handed over the receipt of toll tax of these dates to IO Ajay Singh Negi and submitted that he was innocent and also desire to lead defence evidence, therefore case was fixed for defence evidence on behalf of accused Janaki Prasad.

14. Sh. Sanjeev Kumar appeared as DW1 and deposed that on 25.11.2006, at about 7.30/ 8.00 pm he alongwith accused Janki, Sanjiv, Raju and Dr. Kutti had gone to visit Shani Mandi, Kosi, Mathura in an Indica Car belonging to Raju. At about 8.00 pm they all left Delhi for Kosi and reached there at 12.00 midnight. They all visited the temple there at night and left Kosi at about 3.30/ 4.00am and reached Delhi at about 8.00 am. During his cross examination by Ld. Addl. PP for state he deposed that he was not a summoned witness and he appeared before the court only on the direction of accused Pratap to give evidence on behalf of accused Janki Prasad.

During his cross examination he failed to disclose the registration number of Page 53/92 54 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. the Indica car, however, he disclosed the last digit as 2277 and denied the suggestion that they had not gone to Kosi on the day of incident. Rest of his testimony is reiterated by him as submitted by him during examination in chief.

15. Sh. Hitesh Sagar @ Raju appeared as DW2 and deposed that he is not a summoned witness and had come to the court to depose in favour of accused Janki as per the direction of accused Pratap. He further deposed that on 10.11.2006 he purchased an old Indica Car model 2002 for Rs. 1,65,000/- but same has not been transferred in his name till date. He also deposed that he cannot produce the receipt showing thereby that he had purchased the said car from the previous owner of the aforesaid vehicle. He further deposed that he sold the Indica car in year 2008 to one Sh Rajnikant, R/o Harsh Vihar who had now left the previous address and his present whereabout are not know to him. He sold the said Indica car for Rs. 1,20,000/- but he had not brought the receipt of selling the said Indica car to Sh. Rajnikant and he also admitted that aforesaid Indica car was never transferred in his name.

16. He further deposed that on 25.11.2006 he made a plan to go to Page 54/92 55 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Shani Mandir, Kosi, at about 8.30 pm and he alongwith Sanjiv, Janki and one doctor sahab had gone to Kosi and reached there at about 11.30 /12.00 mid night and after taking prayer we all returned to Delhi at about 8.00 am next day. He knew nothing about the incident and after 2-3 days Janki took a toll tax receipt from him, therefore, I am not in possession of photocopy of the toll tax at present.

During his cross examination by Ld. Addl. PP for state he submitted that it is correct that he knew nothing about this case. Accused Janki Prasad was his neighbour and he even did not know as to when accused Janki Prasad was arrested by the police. He also admitted that he had never informed to Sr. officers of police that accused Janki was present with him on the day of incident. He also admitted that he had not filed any complaint before the competent court regarding the false implication of accused Janki Prasad in this case. Rest of his testimony is reiterated by him as submitted by him during examination in chief. Thereafter defence evidence was closed and case was fixed for final arguments.

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FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

17. I have heard the arguments on behalf of Ld. counsel for all the accused persons and Ld. Addl. PP for the state.

18. Ld. Counsel on behalf of all the accused persons submitted that before convicting the accused under any penal law, it is the duty of the prosecution to prove its case against the accused persons beyond reasonable doubt and in the present case no incriminating corroborative evidence with regard to the involvement of accused are brought on record against any of the accused.

19. In support of their contention ld. Counsel on behalf of all accused namely Charan Singh, Harish, Janki Prasad, Rinku and Pratap submitted as under:

i) That on the day of incident three D.Ds were recorded at police post Harsh Vihar and vide DD No. 27 recorded at 10.10 p.m it was informed that a quarrel had taken place at C-1/484 Harsh Vihar and vide DD No. 29 recorded at 10.25 P.M it was informed that quarrel had taken place in Gali No.19 Friday Page 56/92 57 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

Market and vide DD No. 38 recorded at 3 a.m wherein it was informed that an un known person/injured was lying in Ram Leela Ground C block Harsh Vihar which clearly goes to show that places of incident i.e at C-1/484 Harsh Vihar, or in Gali No.19 Friday Market or Ram Leela Ground C block Harsh Vihar is not proved and without proving the place of incident, it cannot be said that as to when and where the deceased received injuries and due to those injuries subsequently he died on the next day.

ii) He further pleaded that initially the case was registered vide FIR No. 989/06, u/sec. 307/308/452/34 IPC only on the basis of statement of PW.5 Anil Kumar and in his statement he stated that he used to drive TSR owned by Smt. Saroj w/o Sh. Bhagwan Singh (PW.7). PW.7 Bhagwan Singh during his examination before the court disclosed that he used to drive the Maruti Van whereas PW5 in his statement exhibit PW5/A stated that he used to drive TSR. He also deposed that deceased Mukesh was his step brother(son of his Mausi Smt. Saroj and she was his step mother) but during his cross- examination he denied these facts. He used to park Maruti van initially at the house of deceased Mukesh i.e at Nand Nagari and at the time of incident he Page 57/92 58 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. parked his Maruti van at the shop of the deceased.

Iii) PW.5 during his examination by the police official u/sec. 161 Cr.P.C as well as in his statement Ex.PW 5/A, stated that Charan Singh along with his brother Harish, Janki Pd., and his friend Rinku and Partap already known to him, reached at the spot having Lathies, Dundas and Rods in their hands and they all started beating him and Mukesh with intention to kill them. He further stated that accused Partap and Janki Pd., pushed him due to which he fell down, Charan Singh picked up a stone and landed a stone blow on the head of Mukesh and somehow Mukesh fled away from there. But during his cross-examination he specifically deposed that Rinku and Partap were not present along with the accused persons and they have also not pushed him due to which he fell down.

iv) PW.5 in his statement recorded by the police specifically stated that accused Rinku and Partap forcibly dragged Mukesh towards their house and other persons kept on beating him, Lalit also reached at the spot on hearing noise and received injuries in the hands of the accused persons during his Page 58/92 59 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. examination in chief he stated that accused Rinku took him and police officials to his office of Tour and Travel at Lal Mandir Harsh Vihar and got recovered blood stained dunda and rod but during his cross-examination he deposed that he had not given the statement to the police that all the accused persons were known to him prior to this incident and voluntarily stated that they all were known to him by face only. He also stated that he was not acquainted with the accused Janki Pd., prior to this incident. He further stated that he had not stated to the police that as soon as Mukesh received injuries, he run away. He further stated that he had not disclosed the physical appearance of accused Charan Singh and Janki Pd., in his statement and voluntarily stated that same was disclosed by Lalit but Lalit in his statement no where stated that he had disclosed the name of all the accused persons before the police officials.

During his cross-examination he further stated that he was not present with the police at the time of arrest of accused Charan Singh and recovery of mobile phone from his possession. He also deposed that he had not seen the blood stained half brick/Adha at the spot after the occurrence. During his cross-examination he further stated that he had not seen the office of tour and Page 59/92 60 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. travel at Lal Mandir. He stated that he never went to Tour & Travel office and had not recovered dunda and rod from the office of Tour and Travel. He further stated that accused Rinku and Partap reached at the spot when he along with Lalit and Rakesh were made to sit in the police gypsy. On this point ld. Counsel for accused Rinku and Partap submitted that as per testimony of PW.5 they both reached at the spot when the matter was already over and have not taken part in the quarrel as they were admittedly not present at that time and reached there later on. He also denied that he had made any statement to the police that Rinku and Partap had beaten Mukesh with dunda and rod.

v). PW.5 Anil Kumar during his cross-examination by Sh. J.P Singh Advocate on behalf of Charan Singh, Janki Pd., and Harish specifically stated that Charan Singh assaulted on the head of Mukesh with stone once but has not stated that after receiving injuries Mukesh run away from the spot, rather stated that accused Rinku and Partap forcibly dragged Mukesh towards their house. But during his cross-examination he deposed that he had not disclosed about the features/description/physical appearance of Charan Singh Page 60/92 61 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. and Janki Pd., in his statement to the police. Voluntarily stated that it was so disclosed by Lalit. He also stated that he had not disclosed the name of Charan Singh and Janki Pd., to the police and voluntarily submitted that it was disclosed by PW Lalit. On the other hand PW Lalit during his cross- examination specifically stated that he had not disclosed the name of Rinku, Partap and Janki Pd., in his statement Ex.PW 6/A. He further stated that PW.5 Anil told him that above named persons had beaten Mukesh s/o Bhagwan Singh and run away from the spot.

vi) PW.5 in his statement stated that Charan Singh along with his associates namely Rinku, Partap, Harish and Janki Pd., reached there after about 10-15 minutes of refusing him to give Gutka without money and they all were having lathies, dundas and rod, started beating him and Mukesh and accused Charan Singh gave iron rod blow on his head but during his cross- examination he stated that accused Charan Singh had not given blow on his head. Accused Rinku and Partap gave beating to Mukesh with dunda and rod. He also deposed that accused Rinku and Partap pushed Mukesh out side his shop, as a result of which he fell down. Thereafter accused Charan Page 61/92 62 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Singh picked up a stone and assaulted it on the head of Mukesh but during his cross-examination he has not stated these facts and specifically stated that Charan Singh had not given any rod blow on his head. On the other hand during his cross-examination he stated that accused Rinku and Partap had reached at the spot only when he along with Lalit and Partap were made to sit in the police gypsy. He also denied the fact that he had stated before the police that accused Rinku and Partap had beaten Mukesh with dunda and rod. He also denied that accused Rinku and Partap forcibly dragged Mukesh towards his house and other were kept on beating him. This fact is further corroborated by PW.6 Lalit Sharma who had also confronted from his earlier statement recorded by the police u/sec. 161 Cr.P.C.

vii) The testimony of PW.6 is also become unworthy of credit as PW.5 Anil denied that he has been beaten by Harish and Charan Singh. On the other hand PW Lalit deposed that he saw accused Harish and Charan Singh beating Anil.

Viii) PW.7 father of the deceased has taken new turn and specifically stated Page 62/92 63 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. that a quarrel had taken place between Mukesh on one side and Charan Singh, Janki Pd., Harish and Ram Niwas on other side. Neither PW.5 nor PW.6 has deposed that Ram Niwas was also present at the spot.

ix) PW.7 father of deceased during his cross-examination stated that he along with his wife and son Rakesh took his son Mukesh(now deceased) to SDN hospital for getting his CT scan and no doctor or police official accompanied them at that time. He further deposed that they returned to GTB hospital at about 10.30 a.m and they remained in the hospital till 11.40 a.m when his son Mukesh died. This act of PW.7 Bhagwan Singh( father of deceased) again raises a suspicion that despite of the fact that injured was admitted in GTB hospital and he alone without the presence of police official/doctors, took away his son for CT Scan to SDN hospital.

x) Doctor who conducted the Postmortem on the dead body of deceased during his cross-examination specifically stated that age of injured shown on the postmortem report was about 24 hours old before death. Admittedly deceased Mukesh died at about 11.30 a.m on 26/11/2006 and in Page 63/92 64 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. these circumstances if the opinion given by the doctor is presumed to be correct, these injuries might have been received by the deceased at 11.30 a.m in the morning of 25/11/2006. He further contended that on the MLC bearing No. A-4960/06 of deceased Mukesh only three injuries were shown and on the postmortem report eight injuries are shown. In the opinion of the doctor wherein he specifically stated that after receiving the nature of injuries which were present on the body of the deceased, the patient could not be able to run. But as per prosecution version, quarrel had taken place in front of shop C-1/486 i.e near the Friday Market and the injured was found present in the Ram Leela Ground from where he was lifted by the police and got admitted in the GTB hospital. It is no where brought on record by the prosecution who took the injured in Ram Leela Ground.

xi) During examination in chief as well as in the statement Ex.PW.5/A, PW.5 stated that accused Charan Singh was arrested in his presence and at his instance a mobile phone was recovered from his possession but during his cross-examination he denied this fact and specifically stated that no mobile of deceased was recovered from the possession of accused Charan Singh in his Page 64/92 65 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. presence.

20. There are material contradictions in the testimonies of PW.24 SI A.S Negi and PW.26 Inspector C.M Meena with regard to the arrest of accused persons. Inspector C.M Meena (PW.26) stated that on receipt of secret information he went to C-485 Harsh Vihar and from there accused Rinku and Harish were arrested and accused Rinku got recovered one iron rod from his office shop. It is also brought in evidence that house NO.C-485 was not of Rinku however his house was C-185 which again raises a doubt upon the factum of arrest and investigation conducted by PW.26. The dunda which was alleged recovered from the office of accused Rinku neither inspected nor produced before the court and in view of the aforesaid material contradictions it is established that testimonies of prosecution witnesses does not inspire confidence and are not sufficient to prove the case of the prosecution beyond reasonable doubt against any of the accused persons and requested for their acquittal.

21. On the contrary Ld. Addl. PP for the state submitted that initially Page 65/92 66 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. vide DD No.27 at 10.10 P.M an information with regard to occurrence of quarrel at C-1/486 was recorded at P.P Harsh Vihar and thereafter vide DD No.29 at about 10.25 p.m was recorded at P.P Harsh Vihar that a quarrel has been taking place in Gali No.19 Friday Market crossing near oil Depot and H.C Yad Ram was directed to go to the spot. The aforesaid D.Ds are proved by PW.15 Const. Mangat Singh and true copies of all the D.Ds are Ex.PW 15/A to Ex.PW 15/C. During his cross-examination he stated that DD No.27 and DD No. 29 both were recorded by him on the basis of information given by PCR Beeta-V through wireless set and call was given by Const. Kashi and second call was given by W/SI Mangrete and factum of receipt of aforesaid informations and further assignment to ASI Yad Ram is further corroborated by PW.19 who specifically stated that on 25/11/2006 he was on patrolling duty from 8 p.m to 8 a.m and on that day at about 10.10 p.m and at about10.20 P.M on receipt of information vide DD No. 27 & 29 respectively with regard to occurrence of quarrel he reached at the spot i.e C-1/486 Block Friday Market Road Harsh Vihar and on reaching there he came to know that injured had already been taken to GTB hospital by Const. Manoj who was on petrolling duty in the area. He reached at GTB hospital and obtained the MLCs of Page 66/92 67 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. injured Harish, Lalit and Anil but he only met with Lalit and Anil as Harish was not found present there. All the three MLCs were handed over to SI RajniKant on the direction of incharge PP Harsh Vihar. He further deposed that on 26/11/06 at about 3 a.m on receipt of information vide DD No.38 that an unknown person was lying unconscious and in injured condition in Ram Leela ground. SI Rajnikant along with const. Prem Pal reached at the spot and on reaching there they found a young boy in an injured and unconscious condition lying on the ground. Blood was lying on the earth. Cat Ambulance was called by SI Rajnikant and injured was admitted to GTB hospital. He along with SI Rajnikant reached at GTB hospital and H.C Prem Pal was left at the spot. MLC of injured was obtained by SI Rajnikant. IO prepared the rukka and handed over to him for registration of the case. Thereafter the investigation of this case was assigned to SI A.S Negi, therefore he handed over the copy of FIR and rukka to him. Injured Lalit and Anil also disclosed the name of injured Mukesh while reaching to the hospital in his presence. He along with IO/SI A.S Negi again reached at GTB hospital and on reaching there SI Rajnikant handed over all the MLCs to the IO/SI A.S. Negi. Blood was lifted from the spot, photographs were taken from different angles and Page 67/92 68 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. thereafter he along with the IO, Lalit and Anil went to the place of quarrel i.e C-1/486 Harsh Vihar. Blood stained stone was taken into possession from there and was sealed into pullanda.

22. The testimony of PW.19 SI Yad Ram is further corroborated by H.C Prem Pal (PW.10) and SI Rajnikant(PW.22).

23. PW.1 doctor from GTB hospital proved the MLC of injured Anil vide his report Ex.PW 1/A, PW.2 Dr. Arvindom from GTB hospital proved the MLC of injured Anil Ex.PW 2/A. PW.3 Arvind Kumar proved the factum of conducting the postmortem report of deceased and the cause of death wherein he opined as under:

"After postmortem examination I opined the time since death was about one day and cause of death was shock due to anti-mortem injury to head resulting cranio-cerebral damage produced by blunt force impact. It is further opined that all the injuries were anti-mortem in nature. Injuries No.3,5,6,7 and 8 were sufficient to cause death in ordinary course of nature individually and Page 68/92 69 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

collectively.

24. He also preserved the clothes, blood stained gouge pieces as mentioned in his proceedings and postmortem report Ex.PW 3/A bearing his signatures at point A and the clothes which were seized by the doctor were examined in the office of CFSL vide Ex.A-7(1), A-7(2), A-7(3) and blood gouge A-8. On examination Ex.A-7(1), A-7(2), A-7(3) and A-8 were found positive of human origins and blood group was found A on all exhibits Ex.A- 7(1), A-7(2), and A-7(3) and on Ex. A-8 blood group was found 'A' I.e the same blood group of the deceased.

25. A-3 is stone which was taken in possession from the place of incident which was blood stained and the blood group of A-3 was also analyzed which was found positive of human organs and of the same group 'A' as of the blood group of deceased.

26. In view of the aforesaid evidence it is established that blood stained stone which was recovered from near the shop C-1/486 and blood stained Page 69/92 70 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. clothes worn by the deceased both bears the same blood group 'A'.

27. PW4 is the draftsman who visited the spot i.e C-1/486 with Inspector C.M. Meena and prepared the scaled site plan Ex. PW4/A. PW5 is the eye witness of the incident and he specifically stated that on the day of incident I.e at about 10 p.m he was present with deceased Mukesh at his shop. Accused Charan Singh reached there demanded Raj Darbar Gutaka without making payment. Feeling aggrieved due to the said conduct of deceased Mukesh accused Charan Singh alongwith his associates namely Rinku, Pratap, Harish and Janaki Prasad correctly identified by (PW5) reached there having lathi, danda and rod in their hands and started beating him and Mukesh. Accused Rinku and Pratap gave beating to Mukesh with danda and rod and also pushed him outside the shop and in the process Mukesh fell down. Charan Singh picked up a stone and landed on the head of Mukesh, thereafter accused Rinku and Pratap forcibly dragged deceased Mukesh and took him towards their house. In the meantime PW6 Lalit also reached there and when he tried to save him from the clutches of the accused (PW6) Lalit also received injuries in the process. Someone has informed the Page 70/92 71 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. PCR. PW8 Rakesh brother of deceased Mukesh also reached there. During the course of quarrel one of co-accused namely Harish Chand fell down and received injuries due to fall. PCR van took him and accused Harish Chand to hospital. Rakesh was also with them. Injured Lalit was also taken to hospital on a motor cycle by Ct..Mukesh.

28. PW6 and PW8 Rakesh again returned at the spot in search of Mukesh but he was not found there. He closed the shop and had gone to PS in search of accused Mukesh but police officials despite of disclosing the whereabouts of Mukesh extended threat upon him to arrest in this case. Mother of deceased informed them on telephone that police official had taken deceased Mukesh to hospital as he was found lying unconscious at Ram Leela ground, thereafter PW6 had gone to GTB hospital and Mukesh was found admitted there in serious condition.

29. The testimony of PW5 Anil Kumar is further corroborated by Lalit PW6 who had specifically deposed that on the day of incident at about 10 p.m he was present at his house and on hearing noise from the grossery shop of Page 71/92 72 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Mukesh he reached there and found accused Harish, Charan Singh beating to Anil and Anil also told him that Mukesh run away due to fear. PW6 also intervened and in the process he also received injuries on his head and PW6 corroborated the testimony of PW5 to the extend that Anil, Charan Singh and Harish were found present at the spot. He also corroborated the fact that Rakesh elder brother of Mukesh also reached there and police official took injured Anil, Harish in a PCR van. Rakesh was also accompanied them and he was also taken to GTB hospital by constable on his motor cycle and factum of their medical examination in the GTB hospital is further corroborated by PW1, PW2 and PW18 all the doctors of GTB hospital. PW6 also corroborated the testimony of PW5 to the extent that later on they came to know that Mukesh was found lying at Ram Leela Ground and police official got him admitted in GTB hospital. PW7 father of deceased further corroborated the testimony of PW5 and PW6 to the extent that at about 9:45/10 p.m he received a telephonic call from his wife with regard to occurrence of a quarrel between Mukesh, Charan Singh, Janki Prasad, Harish, Ram Niwas and other four persons. He also corroborated the fact that on receipt of this telephonic information he reached at the spot and on reaching there he saw Lalit, Harish, Page 72/92 73 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Anil and his son Rakesh while sitting in PCR van which was about to leave the spot. He also corroborated the fact that on asking about Mukesh PW5 Anil stated that Mukesh had received injuries and taken away by Rinku and Pratap some where in the street.

30. PW8 brother of deceased identified the dead body of his brother Mukesh in the mortuary vide his statement Ex. PW8/A. He also handed over the photocopy of the bills of mobile phone of deceased Mukesh which were seized vide memo Ex.PW8/B. Photocopy of the bill is Ex.PW8/C. PW9 is the formal witness. He also identified the dead body of deceased Mukesh vide his statement Ex. PW9/A.

31. PW11 corroborated the fact that on 25.11.06 at about 10:30 p.m he was on patrolling duty and reached at gali no. 19 Harsh Vihar near Friday market road. PCR already reached there and took Anil and Harish to GTB hospital and he took injured Lalit on his motor cycle to GTB hospital for his medical examination. After medical examination of Lalit HC Yad Ram also reached at GTB hospital and he brought Lalit police post. Page 73/92 74

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32. PW12 is the photographer who took the photographs from different angles which are Ex.PW12/A to C. PW13 joined the investigation of this case with Inspector C.M. Meena on 27.11.06 and corroborated the fact that after conducting the postmortem of deceased Mukesh his dead body was handed over to his relatives vide receipt Ex. PW13/A. He also proved that on 29.11.06 he had collected three sealed pullandas duly seal with the seal of AK and handed over to the IO which were taken in possession vide memo Ex. PW13/B. PW14 is the doctor who proved the record of death certificate no. MLC A-4965/06 dated 26.11.06. Copies of the record are Ex.PW14/A and Ex.PW14/B bearing the signature of Dr. Sachin Goel, Senior Resident and he correctly identified his signature on both the exhibits.PW16 recorded the formal FIR no.989/06 u/s 307/308/452/34 IPC on the basis of rukka sent by SI Rajni Kant through HC Yad Ram. Copy of FIR is Ex.PW16/A. PW17 proved the fact that on 26.11.06 on receipt of an information he went to the spot i.e Ram Leela Ground and took the injured to hospital in his ambulance and got him admitted there.

33. PW20 proved the fact that 26.11.06 at about 4 p.m SI Ajay Singh Page 74/92 75 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Negi alongwith two persons namely Lalit and Anil were present at police post and he and Inspector C.M. Meena were also present there. He on that day joined the investigation of this case with Inspector C.M. Meena and Ct.. Anil. Lalit and Anil took them at house no. C-485 Harsh Vihar. On reaching there three/four persons were found present there in the house among them two were identified as Rinku and Harish by them. They both were arrested, their personal search was conducted, their disclosure statement were recorded and at the instance of accused Rinku an iron rod and danda was recovered from his office. Blood spots were noticed on danda and sariya. They were taken in possession vide memo Ex.PW5/O. At the instance of accused Harish Chand, accused Charan Singh was also arrested on the identification of Anil and Lalit. He was also arrested and investigation was conducted in their presence. He further corroborated the fact that on 31.12.2006 pursuant to an information received by PW SI Ajay Singh Negi they proceeded for Harsh Vihar and on the basis of an information accused Janaki Prasad was arrested from his house bearing no. C-1/160 Harsh Vihar and further investigation was conducted in his presence.

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34. PW21 corroborates the factum of arrest of co-accused Pratap from Wazirabad vide arrest memo Ex.PW21/A. He was arrested, disclosure statement was recorded and at his instance a danda was also recovered from Ram Leela Ground. PW23 corroborated the fact that on 25/11/06 injured Harish Chand and Anil was taken by him in PCR van B-15 and got them admitted in GTB hospital. SI Ajay Singh Negi and C.M. Meena both are the IO of this caes and both corroborated the testimony of all the other PW's. Their testimony has already been discussed. PW25 proved the fact that on 26/11/06 at about 2.15 p.m he received a telephonic information through Const. Ram Kumar posted as Duty Constable at GTB Hospital, that a male, aged about 20 years who was got admitted in GTB Hospital vide DD No.30A died and he passed over the information to SI Ajay Singh Negi. Copy of DD entry No. 8 and DD No.13 are Ex.PW 25/A.

35. Ld. Addl. PP for state submitted that in view of the aforesaid submission it is established that prosecution has succeeded in proving its case beyond reasonable doubt against the accused persons and requested for conviction of all the accused.

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36. In rebuttal to the confrontations and contradictions brought on record by the respective Ld. counsels of all the accused with regard to the presence of co-accused Rinku, Pratap and Janki Prasad at the spot on the day of incident, it is submitted that PW5 Anil Kumar during his examination in chief specifically stated that all the accused persons present in the court were present at the spot and they caused injury on the person of deceased Mukesh himself and on the person of Lalit and during his cross examination he failed to support his version with regard to the fact that Rinku, Pratap and Janaki Prasad were present at the spot and they only reached there when PCR van reached there and immediately he and Harish Chand alongwith brother of deceased were taken at GTB hospital and were got medically examined. On the face of it, it appears that only due to the pressure exerted by the accused person PW5 resiled from his statement to the extent that Rinku and Pratap were not present there and they have not caused any injury on his person and on the person of deceased Mukesh. He also failed to support the prosecution version to the extent that Rinku and Pratap dragged deceased Mukesh from his shop and took him with them at some unknown place. This appears to Page 77/92 78 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. have been made under the pressure of accused persons as they were the resident of that area and PW5 was driving the van of mother of deceased.

37. Ld. Addl. PP for state further pleaded that the confrontations and contradictions in the testimonies of PW5 Anil Kumar and PW6 Lalit Kumar during their cross examination have no force as the testimonies of both the witnesses have been duly corroborated and proved by other witnesses and also placed his reliance on a decided case cited as Khujji @ Surender Tiwari Vs. State of Madhya Pradesh 1991 AIR (SC) 1853 wherein it is observed as under :

"That the evidence of prosecution witness cannot be rejected in toto merely because the prosecution chose to treat them as hostile and cross examine them. The evidence of such witnesses cannot be treated as effaced or washed of the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

38. In the present case the evidence of PW5 and PW6 was challenged by the ld. counsels for accused persons on the ground that during cross examination of PW5 and PW6 they failed to support the prosecution version in the manner they supported during their examination in chief but on careful Page 78/92 79 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. consideration of their evidence it has become crystal clear that all the accused persons named above were present at the place of incident I.e in front of shop of deceased and they all in furtherance of their common intention caused injury to the deceased, PW4 and PW5, therefore, presence of accused persons with the deceased at the place of occurrence therefore, cannot be doubted and submitted that prosecution succeeded in proving its case beyond reasonable doubt against all the accused persons for the offences as alleged against them.

39. In view of the submissions of Ld. Counsel for accused and Ld. Addl. PP for state I would like to discuss the provisions of section 147/148/149 and 34 IPC which reads thus :

Provisions of Section 34 IPC are as under :

"Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

Section 141 IPC defines Unlawful Assembly which reads thus:

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"Unlawful assembly - An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is -

First - To overawe by criminal force, or show of criminal force (the Central or any State Government or Parliament or that Legislature of any State), or any public servant in the exercise of the lawful power of such public servant; or Second - To resist the execution of any law or of any legal process; or Third - To commit any mischief or criminal trespass, or other offence; or Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly".

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Section 146 defines rioting and section 147 provides the punishment for rioting.

Section 148 IPC reads as under :

Rioting, armed with deadly weapon - Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 149 IPC reads as under :

Every member of unlawful assembly guilty of offence committed in prosecution of common object - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

Section 452 IPC provides as under :

House-trespass after preparation for hurt, assault or wrongful restraint - Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either Page 81/92 82 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

description for a term which may extend to seven years, and shall also be liable to fine.

Section 300 defines the murder as under :

Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly - 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 Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

i) Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

40. In view of the aforesaid provisions I analyzed the evidence adduced by the prosecution which has been discussed above wherein it is Page 82/92 83 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. established as under:

ii) On the date, time and place of incident the presence of PW5 Anil and Mukesh at the shop of Mukesh situated at Harsh Vihar is established. This fact is also proved that accused Charan Singh came to the shop of deceased Mukesh and demanded Raj Darbar Gutaka from his shop and deceased Mukesh refused to give him gutaka without making payment and thereafter, within 10-15 minutes Charan Singh alongwith his associates namely Harish, Janaki Prasad, Rinku and Pratap all have been identified by the witness reached there having lathi, danda and rods in their hands and the bone of contention between deceased and co-accused Charan Singh I.e refusal by the deceased to give Raj Darbar Gutaka to co-accused Charan Singh is established.

iii) PW5 in his examination in chief stated that accused Charan Singh gave iron rod blow on his head but during his cross examination he denied this fact but such denial during his cross examination shall not prove fatal to the prosecution as it is already brought on record that PW5 after receiving Page 83/92 84 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

injuries was taken to GTB hospital and was got examined by PW1 Dr. Arun Kumar and in the MLC Ex.PW1/A it is mentioned that PW/patient/injured Anil Kumar was taken to GTB hospital by HC Jai Singh on 25.11.06 at about 11:15 p.m and doctor observed following two injuries I.e one CLW (3cm x 1 cm) over the occipital bone of skull and second multiple abrasions on both the upper limbs and also referred to room no. 149 and nature of injury was opined as simple caused by blunt object which clearly suggest that PW5 received injuries during the time he was present at the spot and mere denial in the cross examination cannot demolish the case of the prosecution.

iv) It is also proved that PW6 Lalit was also present at the spot and he had also received injuries during the process of quarrel and he had also seen Harish and Charan Singh giving beating to Anil and he also stated that he later on came to know that accused was found lying at Ram Leela Ground who was got admitted in GTB hospital by police official, therefore, on the basis of confrontations as brought out during the cross examination of PW6 as mentioned on Ex.PW6/A from point 'A to A' to 'E to E' are not Page 84/92 85 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. sufficient to reject the testimony of PW5 and PW6 and evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as efaced or washed of the record altogether but same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof as observed in decided cases which are discussed above.

v) It is also proved that blood stained stone was lifted from the place of quarrel I.e in front of a shop bearing no. C-486 Harsh Vihar I.e a shop belonging to deceased and clothes which were admittedly worn by the deceased were taken in possession by the doctor at the time of conducting postmortem were got analyzed in the office of CFSL vide Ex.A3 (blood stained stone) and Ex.A71, one full shirt as Ex.A-7(1), one jeans full pant as Ex.A-7(2) and one full sleeve sweater as Ex.A-7(3). The blood stained exhibits were found positive for human origin and same blood group A was detected on all the exhibits thereby it is established that blood stained stone which was recovered from the spot was used for causing death of Page 85/92 86 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. deceased and factum of landing the alleged stone on the head of deceased is proved by PW5 and corroborated by other witnesses.

vi) It is also proved that mobile phone belonging to deceased Mukesh was also recovered from the possession of accused Charan Singh and no evidence in rebuttal to these facts are brought on record by any of accused persons.

vii)PW5 in his statement clearly stated that accused Rinku and Pratap gave beating to Mukesh with danda and rod and they also pushed him outside the shop due to that he fell down thereafter, Charan Singh picked up a stone and landed the same on the head of Mukesh and after receiving the head injury deceased Mukesh was forcibly dragged by accused Rinku and Pratap towards their house. The presence of PW5 at the spot is proved and he was not a chance witness. It is also proved that one of accused namely Harish Chand also fell down during the quarrel and he was taken to GTB hospital alongwith PW5 and was also got medically examined which clearly suggests that all the accused named above were present at Page 86/92 87 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. the time of quarrel. It is also brought in evidence that a mobile phone make Metrola belonging to deceased Mukesh was recovered from the possession of accused Charan Singh and PW's identified the same in the court as Ex.P3.

viii)It is also established that after arrest of accused Rinku and Pratap, they were interrogated, their disclosure statement were recorded wherein co- accused Rinku in his disclosure statement clearly stated that co-accused Harish Chand handed over iron rod to him and which he had hidden in his office and accordingly danda and rod were got recovered from his office of Tour and Travel situated at C-1/485 gali no.1, Harsh Vihar. These rod, danda and lathi were taken in possession sent to the office of CFSL for its chemical examination. These all were examined. Rod examined as Ex.A4, Wooden rod as Ex.5 and another wooden rod as Ex.A6 and all the exhibits A3, A4 and A6 found positive for blood which again suggests that aforesaid lathi, danda and rod were used for causing beating as stains which were present on the Ex.A4, A5 and A6 were found positive for human origin but blood group was found inconclusive on Ex.A4, A5 and A6. Page 87/92 88 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

ix) In the present case find of human blood on the weapons recovered from the shop of co-accused Rinku lands corroboration to the testimony of PW5 and PW6 and find of human blood stained stone of the same group 'A' of the blood group of deceased again lands corroboration to the testimony of PW5 as he stated that he had seen the accused inflicting a stone blow on the head of deceased.

x) The opinion given by the doctor with regard to the cause of death again lands the corroboration to the fact that all the blood stained danda, rod, lathi and blood stained stone were used for causing injury on the head and face of deceased as the cause of death was opined as shock due to antimortem injury to head resulting cranio-cerebral damage produced by blunt force impact" and it is also specifically opined that all the injuries were antimortem in nature and injuries were sufficient to cause the death in the ordinary course of nature.

xi) It has also come on record that five persons namely Charan Singh, Harish Page 88/92 89 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC. Chand, Janki Pd., Rinku and Pratap Singh reached at the shop of deceased after 10-15 minutes of the first altercation happened between Mukesh and co-accused Charan Singh and they all are identified by PW5 in the court. It is also brought on record that they were having lathi, danda and rod in their hands started beating PW5 as well as Mukesh thereby it is established that number of accused persons at the time of commission of offence were five at the time of commission of offence but on perusal of the evidence brought on record by the prosecution it is established that all the five persons reached there with common intention to cause quarrel with deceased Mukesh and no separate role can be attributed to any of the accused therefore, whatever the offence committed by them is deemed to be committed by them in furtherance of their common intention.

xii)The testimony of public witness I.e PW5, PW6, PW7, PW8 is further corroborated by other police officials and in such circumstances the confrontations/contradictions put forth by Ld. counsel for accused during cross examination of the witnesses cannot help the accused person in demolishing the case of the prosecution.

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41. In view of the aforesaid established facts I also appreciated the circumstances under which the present offence was committed coupled with the fact that PW5 is the eye witness in this case and in considering all the other circumstances which are brought on record by the prosecution I also placed my reliance on decided cases cited as "SHANTABAI & ORS. VS STATE OF MAHARASHTRA 2008(2) JCC 1080" wherein it is observed as under:-

"This court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following test:

i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

ii) Those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

iii)The circumstances taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

iv)The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the Page 90/92 91 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

accused but should be inconsistent with his innocence.

42. I also placed my reliance on a decided case cited as Swami Shardanand @ Murli Manohar Mishra Vs. State of Karnataka AIR 207 SC 2539 and also in Shaik Mastan Vali's case which are as follows :

(1)The inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.

(2)The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

(3)Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

(4)Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted Page 91/92 92 FIR NO:989/06; PS NAND NAGRI; U/S 302/308 IPC ; STATE VS. CHARAN SINGH & ETC.

and keeping in view the observation given by their lordships in the aforesaid decided cases and the relevant provisions of the Indian Penal Code discussed above I am of the considered view that prosecution succeeded in placing on record unbreakable chain of circumstances irrespective of eye witnesses.

43. After hearing arguments and taking into consideration the facts and circumstances of this case and evidence adduced by the prosecution and the observations given by their lordships in the cases discussed above I am of the considered view that prosecution has succeeded in proving its case beyond reasonable doubt against the accused persons. I accordingly hold all the accused namely Charan Singh, Harish Chand, Janki Prasad, Rinku and Pratap Singh guilty for the offence u/s 302/323/452/34 IPC. Let they be heard on the quantum of sentence. Accused Rinku and Pratap Singh who are on bail be taken into custody.

  ANNOUNCED IN THE OPEN                            (B.S. CHUMBAK)
  COURT ON 22.02.2011                             ASJ-3 NE DISTT/KKD/DELHI

                                                                          Page 92/92

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Delhi District Court

Fir No:989/06; Ps Nand Nagri; U/S ... vs . Charan Singh & Etc. on 22 February, 2011