Delhi District Court
State vs (1) Liyakat Ali @ Raju(2) Mahender @ ... on 27 November, 2009
-::1::- FIR No.178/08
PS: NDLS
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE( NDPS)
TIS HAZARI COURTS:(WEST) DELHI
FIR no. 178/08
Police station NDLS
U/s 302/201/34IPC
State V/s (1) Liyakat Ali @ Raju(2) Mahender @ Ganja
(3) Sanjay @ Chavani(4) Raju Bangali
(5) Balkishan @ Natu @ Intizar(6) Ashish Kr. Pandey @ Pandit
1. Session Case no. : 09/08/09
2. Name of the accused : (1) Liyakat Ali @ Raju S/o Sattar Hussain
and parentage R/o Village Harun Nagar, Sector-1,
Phulwari Sharif, Patna , Bihar
(2) Mahender @ Ganja S/o
Satyanarayan R/o Village Hassanpur
Kasar, Police Station Sultanpur Goss
District Fatehpur, U.P (being tried by
Juvenile Justice Board)
(3) Sanjay @ Chavani S/o Bhola R/o
Village Nawada, Police Station &
District Bhagalpur, Bihar (being tried
before Juvenile Justice Board)
(4) Raju Bangali S/o Mohd Tahid R/o
Village Silchar, Police Station Sadar,
District Majumdar Bazar, West Bangal
(5) Balkishan @ Natu @ Intizar S/o Bal
Mehak R/o Nai Khata Kheri District
Saharanpur, U.P.
(6) Ashish Kumar Pandey @ Pandit S/o
Hari Shankar Pandey R/o Mohalla
Safari, Police Station Mohiba, District
Mohiba U.P,(Supplementary challan
filed on 19/1/2009)
3. Date of commission : 22/5/2008
of offence
4.Arguments concluded : 19/11/2009
on
5. Date of Judgment : 27/11/2009
6. Date of final order : 27/11/2009
-::2::- FIR No.178/08
PS: NDLS
JUDGMENT
1) According to the prosecution case DD no.9A was recorded in Police Station NDLS, New Delhi at about 8.20AM wherein Shunting Master Shri Lakhan has reported that one dead body of a male aged about 30 years was lying near Saloon Siding Nijamuddin side in front of platform no. 1&2. On receiving this information Inspector Sumer Singh alongwith Inspector C.R.Meena and Inspector Anil Jetly, HC Mahender Singh and Ct.Amit Kumar went to the spot where ASI Ashok Kumar and HC Nihal Singh were already present and found that the dead body was lying between the line of platform no. 1&2. The blood was also found scattered around the dead body. Case was registered in Police Station New Delhi Railway Station. During investigation on 23/5/2008 statement of one Imran Kirmani and one Ram Kumar Sharma was recorded. As per their version on 22/5/2008 at about 10.45 PM in the night when they were passing through platform no. 2 for taking EMU train for Ghaziabad, they found that two boys Balkishan @ Natu and Liyakat Ali @ Raju alongwith four other boys were beating a boy by saying that he had kept all their money and in case he did not account for the money, he would be finished. Both of them pushed that boy as a result of which he fell down. Accused Bal Kishan @ Natu and Liyakat Ali @ Raju pressed -::3::- FIR No.178/08 PS: NDLS his neck and other four boys caught hold on that person with his hands and feet and at that time Balkishan @ Natu brought out some weapon from his pocket and started hitting that boy with it. After crying for sometime that boy became silent. Thereafter Balkishan @ Natu and Liyakat Ali @ Raju asked their accomplices to throw away his body. Accused Balkishan @ Natu and Liyakat Ali @ Raju used to visit reheri of Ram Kumar Sharma and Imran Kirmani daily and other four persons were not known to them. On 27/5/2008 on the pointing out by these two public witnesses accused Liyakat Ali @ Raju, Balkishan @ Natu and Sanjay @ Chavani (being tried before Juvenile Justice Board) were arrested. The accused persons disclosed that they have killed Bichhu @ Raja because of dispute over the distribution of amount earned from pick-pocketing by them. Police custody of accused Balkishan @ Natu was taken for recovery of weapon of offence and on 29/5/2008 at his instance the knife used in the murder was recovered. The deceased could not be identified and was cremated as "unclaimed body" on 30/5/2008. On 13/6/2008 opinion of Autopsy Expert was taken regarding weapon of offence. The sixth person involved in the murder could not be arrested for lack of proper name and address. After completion of investigation chargesheet was filed and accused Mahender @ -::4::- FIR No.178/08 PS: NDLS Ganja and Sanjay @ Chavani were already sent for trial before Juvenile Justice Board. Accused Liyakat Ali @ Raju, Balkishan @ Natu and accused Raju Bangali were committed for trial before this court.
2) On 18/9/2008 all the accused persons were charged for the offence under Section 302/34 and 201/34 IPC to which they pleaded not guilty and claimed trial.
3) Accused Ashish Kumar Pandey @ Pandit was arrested lateron and a separate chargesheet was filed and the case was committed to the court of Sessions on 03/02/2009 therefore a separate charge was framed against him for the offence under Section 302/34 IPC as well as under section 201/34 IPC to which he pleaded not guilty and claimed trial.
4) In support of its case the prosecution has examined in total 21 witnesses.
5) The brief summary of the deposition of the prosecution witnesses is as under:-
A)) FORMAL WITNESSES PW2 Ct. Amit Kumar has joined investigation alongwith Inspector Sumer Singh and went to railway track of platform no. 1&2 and found a dead body of one male aged about 30 years. He took the -::5::- FIR No.178/08 PS: NDLS rukka prepared by the Investigating Officer to the Police Station and got the case registered.
PW4 HC Mahender has also joined the investigation on 23/5/2008. In his presence the IO had taken five samples from the spot namely two earth control sample, one blood sample and some blood samples from the stones lying there vide memo Ex. PW4/A to Ex.PW4/E and all the memos were signed by him.
PW6 SI Kamal Duggal has recorded the FIR while working as duty officer from 9.00AM to 5.00PM on 23/5/2008. She has proved the copy of FIR Ex. PW6/A and photocopy of DD no.11A as Ex. PW6/B and photocopy of DD no.12A as Ex. PW6/C. She has proved the endorsement on the rukka as Ex. PW6/D. The DD no. 9A was also proved by her as Ex. PW6/E. PW7 Ct. Ramesh was member of the Mobile Crime team as photographer. He has taken photographs from different angles and proved the same as Ex. PW7/A to Ex. PW7/F. The negative of the same are proved as Ex. PW7/G to Ex. PW7/I. PW9 SI Mahesh Kumar has prepared the scaled site plan Ex. PW9/A. PW10 Ct. Chander Bhan was handed over five envelops containing the copy of the FIR which he had delivered to Senior officers as a Special Messenger. He has proved the departure entry in -::6::- FIR No.178/08 PS: NDLS that regard i.e DD no.12A as Ex. PW6/D. On 27/6/2008 he has deposited 9 sealed parcels to FSL, Rohini vide RC no. 31/21.
PW11 B.S. Verma Station Superintendent has deposed that on 23/5/2008 at about 8.10 hours, Shunting Master Mr. Lakhan had informed him on telephone that one dead body was lying in Saloon Siding location SL-2/15. He had sent written memo to GRP, New Delhi which is Ex. PW11/A. PW13 Inspector Yashpal Singh was also member of Mobile Crime team and Ct. Ramesh had taken photographs in his presence on the instruction of the Investigating Officer .
PW14 Ct. Nihal Singh had accompanied ASI Ashok Kumar to the spot after receiving DD no. 9A he has deposed that after having discovered the dead body, ASI Ashok Kumar had informed to the Additional SHO and Crime team and dog squad who were called on the spot. Investigating Officer had prepared rukka on the DD no. 9A and sent Ct.Amit Kumar to the Police Station for getting the case registered.
PW15 Inspector S.K.Sharma has completed the investigation and in his presence SI Mahesh Kumar had taken rough notes and then he recorded his statement and also statement of Inspector Sumer Singh under Section 161 CrPC. He has also recorded supplementary statement of Ct. Chander Bhan and -::7::- FIR No.178/08 PS: NDLS statement SI Mahesh Kumar, photographer.
PW17 HC Davis who was working as MHC(M) on 23/5/2008 when 5 sealed sample mark-A to D were deposited against entry no. 3234 in register no.19 copy of the same Ex. PW17/A. On 27/5/2008 Jamatalashi of accused Balkishan @ Natu was deposited vide entry no. 3239 Ex. PW17/B. On 29/5/2008 one sealed parcel containing the knife was deposited with him vide entry no.3240 Ex. PW17/C. On 30/5/2008 one sealed parcel containing clothes of unknown dead body alongwith one sample seal was deposited with him against entry no. 3241 Ex. PW17/D. On 27/6/2008 he has sent the case property to the FSL, Rohini through Ct. Chander Bhan vide RC no. 31/21 and an entry no. 3234 was made in that regard vide Ex. PW17/E. On 21/10/2008 he has received the result from the FSL, Rohini and made an entry in that regard vide Ex.PW17/F. On 13/6/2008 Inspector Sumer Singh had taken sealed parcel of knife from him for taking opinion from the concerned doctor and the same was again deposited in the Malkhana duly sealed with the seal of CMO, Mortuary. He has proved the copy of the RC no. 31/21 Ex.PW17/G and acknowledgment of the case acceptance by the FSL as Ex. PW17/H. B) ) MATERIAL WITNESSES PW1 Ram Kumar Sharma has deposed that on 22/5/2008 -::8::- FIR No.178/08 PS: NDLS he alongwith Imran Kirmani was going to Ghaziabad at about 10.45PM when they reached at platform no. 2/3 for boarding the EMU train, they had seen some persons who were giving beatings to one person; out of those persons two boys namely Liyakat Ali @ Raju and Balkishan @ Natu were known to them as they used to visit their reheri for eating food and taking tea and the boys were total six in number; they were telling one boy to clear their accounts otherwise they would kill him; accused Balkishan @ Natu present in the court had taken out a knife from his pocket and stabbed that boy and other boys had caught that boy from his hands and legs and Raju present in the court has pressed the neck of that boy; then both of them had boarded their train and did not bother about this incident as it was happening in routine on the railway station between that type of boys. PW1 pointed out towards accused Liyakat Ali and stated that he was known as Raju whenever he visited their reheri. This witness also pointed out towards Balkishan that he was called by the name of Natu. This witness also identified the third boy facing trial and stated that he can also identify other two persons, if shown to him. He further deposed that on the next date when they reached on their reheri the police reached there and some persons were also discussing about the murder at that place. He further stated that he has made the statement before the police regarding incident as was -::9::- FIR No.178/08 PS: NDLS witnessed by him. He further deposed that on 27/5/2008 accused Liyakat Ali @ Raju, Balkishan @ Natu, Mahender @ Ganja and Sanjay @ Chavani were arrested near their reheri at Chamsford Road on their pointing out vide arrest memo Ex. PW1/A to Ex. PW1/D and their personal search was carried out vide memo Ex. PW1/E to Ex.PW1/H. He has further deposed that on 06/06/2008 his statement u/s 164 CrPC was recorded by Ld MM which was marked-A; on 27/5/2008 accused Balkishan @ Natu and accused Liyakat Ali @ Raju had got recovered their clothes vide memo Ex. PW3/E and Ex.PW3/F. He has also identified those clothes i.e pant Ex. P1, Shirt Ex.P2, cloth pullanda Ex. P3. He has further identified another cloth pullanda as Ex. P4 containing one pant of light brown colour Ex. P5, one cream coloured shirt Ex.P6 and stated that Ex. P5 and Ex. P6 belonged to accused Liyakat Ali @ Raju.
This witness was again recalled for his examination- in-chief after arrest of accused Ashish Kumar Pandey @ Pandit and in addition to his earlier deposition made on 04/10/2008 and 05/11/2008 has stated that on 30/12/2008 he alongwith his friend Imran Kirmani had gone to the photostate shop near lock up of Tis Hazari Courts, Delhi and they noticed that Inspector Meena was standing alongwith a Delhi police vehicle and accused Pandit has got down from said vehicle and was identified by them as the same -::10::- FIR No.178/08 PS: NDLS person who was involved in the incident on 22/5/2008 when they had committed murder of Bichhu; they informed Inspector Meena in that regard who had recorded their statement; he alongwith Imran Kirmani had also gone to jail for TIP proceedings but the accused had refused.
PW3 Imran Kirmani has supported and corroborated the version of PW1 on all material points. Regarding the incident of causing fatal injuries to the deceased by accused persons he has stated that accused Liyakat Ali @ Raju and Balkishan @ Natu were giving beating to a boy and they were amongst the six persons beating him and were also saying that boy to give them money otherwise they will kill him; accused Liyakat Ali @ Raju had pushed that boy and accused Balkishan @ Natu had taken out some sharp edged weapon and stabbed that boy; that boy raised alarm and cried once and then became silent; he alongwith his friend had boarded the train for Ghaziabad and did not bother about that incident as it used to happen in routine at the station. He has also identified the third accused Raju Bangali (facing trial) stating that he was also present at the time of beating and stabbing to the injured. He has further stated that he could identify the other two boys who were also present at the spot at the time of beating and stabbing of the injured boy. He has also deposed about the arrest of four -::11::- FIR No.178/08 PS: NDLS accused persons including Liyakat Ali @ Raju and Balkishan @ Natu on 27/5/2008 and also proved their arrest memos, personal search memos as Ex. PW1/A to Ex. PW1/H. He has further stated that accused Raju Bangali was arrested on 29/5/2008 vide arrest memo Ex. PW3/A and his personal search was carried out vide memo Ex.PW3/B. He has also proved the disclosure statement of four accused persons as Ex. PW3/C to Ex. PW3/F. He has further proved the recovery memos regarding clothes of accused Liyakat Ali @ Natu and Balkishan @ Raju as Ex. PW3/D and Ex. PW3/F. He has also identified the clothes kept in cloth pullandas from Ex. P1 to Ex. P6.
In his further examination-in-chief recorded after arrest of accused Ashish Kumar Pandey @ Pandit he has similarly deposed on all points while corroborating PW1 and has identified the accused Ashish Kumar Pandey @ Pandit when he was getting down from the jail van near Lockup, Tis Hazari Courts, Delhi on 30/12/2008.
PW5 HC Harpal Singh has joined the investigation alongwith Inspector Sumer Singh on 23/5/2008 and stated that on receiving DD no. 9A regarding a male dead body lying on the track they went there and found the dead body lying on the track whose one hand and one leg was cut; on the chest of the dead body the cut marks of knife were found; the blood was also lying at the spot in the circumference of 10 meters of dead body. He has further deposed -::12::- FIR No.178/08 PS: NDLS that on 27/5/2008 he alongwith Inspector Sumer Singh and HC Pramod came to know about the assailants and on reaching Pahar Ganj side railway station, two public witness Ram Kumar and Imran Kirmani met them and disclosed about the incident having been seen by them on the night of 22/5/2008-23/5/2008; Investigating Officer recorded statement of those witnesses u/s 161 CrPC; at about 7.00PM on the same day, both the public witnesses had disclosed that the persons who had committed murder were present near IRC Building, Main Road, Pahar Ganj side near the temple; accordingly a raid was conducted and four persons were apprehended. The witness has correctly identified the accused Balkishan @ Natu and Liyakat Ali @ Raju and stated that he could identified other two persons also who are facing trial before the Juvenile Justice Board. He has further stated that accused persons had made disclosure statement in his presence and also got recovered their clothes. He has proved the personal search memo of accused Natu @ Intazar as Ex. PW5/A. He has further deposed that on 29/5/2008 he had joined the investigation alongwith Ct. Pramod Kumar and Investigating Officer Inspector Sumer Singh and on that day accused Balkishan @ Natu was taken out from the lockup and was further interrogated and he had made disclosure statement regarding knife used by them -::13::- FIR No.178/08 PS: NDLS in the present case stating that the knife could be got recovered from the bushes situated near the Electric pole; in pursuance to disclosure statement Ex. PW5/B accused Balkishan @ Natu led the police party to that place and got recovered the knife which was taken into possession vide memo Ex.PW5/C. He has further deposed that on the pointing out of accused Balkishan @ Natu, accused Raju Bangali was arrested and he had made a disclosure statement Ex.PW5/D. He has also proved the seizure memo vide which clothes of the deceased were seized vide memo Ex. PW5/E He has also identified the clothes recovered at the instance of the accused persons alongwith cloth pullandas as Ex. P1 to Ex. P6. He has also identified the knife as Ex.P7.
PW8 Ct. Pramod has joined the investigation on 27/5/2008 alongwith Inspector Sumer Singh and HC Harpal Singh when public witnesses met them in Pahar Ganj and accused Liyakat Ali @ Raju, Balkishan @ Natu, Mahender @ Ganja, Sanjay @ Chavani were apprehended and arrested. He has also deposed about police custody remand of accused Balkishan @ Natu taken on 28/5/2008 and has deposed that on 29/5/2008 in the morning at about 11.00AM accused Balkishan led the police party to the bushes situated near Lal Quarter building towards Nizamuddin side from where he had got recovered the knife which was kept in a cloth -::14::- FIR No.178/08 PS: NDLS parcel and sealed with the seal of SS. He has further deposed about the arrest of accused Raju Bangali and also recovery of clothes at the instance of accused Balkishan which he was wearing at the time of incident and the same were recovered from the roof of Lal building. He further deposed that accused Liyakat Ali @ Raju had got recovered his clothes which he was wearing at the time of incident from the Kura Ghar (dustbin) at Sulabh Sochalaya complex situated near RPF post. He has further deposed that on 04/11/2008 accused Ashish Kumar Pandey @ Pandit was arrested at the instance of public witness Imran Kirmani and Ram Kumar Sharma from the in and out gate of NDLS railway station. He has also stated that accused made disclosure statement Ex. PW8/C and was arrested vide memo Ex. PW8/A and his personal search was conducted vide memo Ex. PW8/B and had pointed out the place of occurrence vide memo Ex. PW8/D. He has also identified the clothes alongwith clothes pullandas as Ex. P1 to P6. The knife was identified by him as Ex. P7.
PW16 Shri Jitender Misra, Ld Metropolitan Magistrate has recorded statement of witness Ram Kumar and Imran Kirmani u/s 164 CrPC. He has proved the statement of Ram Kumar as Ex.PW16/A, certificate to his statement Ex. PW16/B, statement of Imran Kirmani as Ex. PW16/C, certificate to his statement -::15::- FIR No.178/08 PS: NDLS Ex.PW16/D, carbon copy of the application of Investigating Officer Ex. PW16/E and carbon copy of the application of Investigating Officer for taking copy of the statement as Ex. PW16/F .
PW20 Shri Gaurav Rao, Ld Metropolitan Magistrate, has conducted the TIP proceedings vide Ex. PW20/1 wherein accused Ashish Kumar Pandey has refused to join the proposed TIP. He has also proved the other relevant documents Ex. PW20/2 to Ex. PW20/4.
PW18 Inspector C.R. Meena was working as Inspector Investigation on 23/5/2008. He has fully supported and corroborated the version of other witnesses who has participated in the investigation. On 19/10/2008 on the direction of SHO Anil Jetly the investigation was handed over to him for the arrest of sixth accused. On 04/11/2008 he alongwith Ct. Pramod had arrested Ashish Kumar Pandey @ Pandit who was present at in and out gate of the Railway station and was apprehended on the pointing out of secret informer. He has also got recorded the TIP proceedings wherein accused Ashish Kumar Pandey @ Pandit had refused to join the TIP proceedings. He has further deposed that on 30/12/2008 accused Ashish Kumar Pandey @ Pandit was identified by public witnesses Ram Kumar Sharma and Imran Kirmani in the court premises. He has proved the DD no. 10A Ex. PW18/A and documents regarding TIP proceedings Ex. PW18/B to Ex. PW18/E. -::16::- FIR No.178/08 PS: NDLS PW19 Inspector Anil Jaitly has deposed that on 23/5/2008 he was posted as SHO at New Delhi Railway station and had received a memo Ex. PW11/A sent by Station Master at about 8.20 AM . He has visited the scene of crime where the dead body was lying. He has supervised the investigation on the spot being carried out by ASI Ashok Kumar and Inspector C.R. Meena.
PW21 Inspector Sumer Singh was working as Inspector Investigation on 23/5/2008 after receiving the memo Ex. PW11/A from station master he had sent ASI Ashok Kumar to the spot . ASI Ashok Kumar had informed the SHO Anil Jetly about the situation on the spot and then he alongwith SHO Anil Jetly went to the spot and carried out investigation. He further stated that according to his information after committing murder the dead body was thrown on the track to make it presumed as a suicide. He has prepared the site plan Ex. PW21/A and had endorsed DD no. 9A as rukka Ex. PW21/B. He has proved the photocopy of the arrest memo of the accused Mahender and Sanjay Ex. PW21/C and Ex. PW21/D. During investigation he had met the public witnesses Ram Kumar and Imran Kirmani who were running a reheri on the Pahar Ganj side of the Railway station; they informed him that they had witnessed the commission of the crime on the night of 22/5/2008 at about 10.30PM when they were going to their house at Ghaziabad and when they -::17::- FIR No.178/08 PS: NDLS reached at platform no. 2/3 near pillar S-2/15 they had noticed that some boys were quarrelling and in case the boy did not clear their accounts, they would kill him. He further stated that these two public witnesses were knowing the two boys out of those six boys even by name and other four boys were known by face. He further deposed that on enquiry both the witnesses disclosed that due to the bad weather and late hours they did not inform to the police on the same day and went to their houses. He further stated that on 27/5/2008 both the public witnesses informed him that the accused persons wanted to this case had gone towards Railway station building; accordingly four accused persons namely Balkishan @ Natu, Liyakat Ali @ Raju, Mahender @ Ganja and Sanjay @ Chavani were arrested from the pattri (pavement) in front of Mata Mandir. He has further stated that accused persons made their disclosure statements , photocopies of the same were Ex. PW21/E to Ex.PW21/H. He has further identified the accused persons and the clothes recovered by them as Ex. P1 to P6. The weapon of offence was identified by him as Ex. P7. He has also proved the FSL-result Ex. PW21/I. C)) MEDICAL WITNESSES PW12 Dr. S. Lal has conducted the postmortem on the -::18::- FIR No.178/08 PS: NDLS dead body of name unknown and deposed as under:-
"On 30/5/08 I conducted a postmortem on a dead body of name unknown about 30 years male brought by Inspector Sumer Singh Police Station NDLS with alleged history of being found dead on railway track at Nizammudin side pole no. SL-2/15 at platform no.1 or 2 NDLS on dt. 23/5/08 at 8.20 AM vide FIR no. 178/08. After that his body brought to Subzi Mandi mortuary for postmortem.
On general examination the dead body was wrapped in a body bag bearing black jeans pant with belt torn at knee joint area , green Sando baniyan torn at front and shirt. The shirt and baniyan having cut marks corresponding to injury present over body.
Anti-mortem injuries:
1. Multiple reddish abrasion at places over right side face
2. multiple superficial incised wounds with clean cut margin (3 in number) of size 9 X 0.5 cm X subcutaneous deep, 8.5 X 0.5 cm X subcutaneous deep and 12 X 0.8 cm X subcutaneous deep present over front of lower aspect of neck.
3. Stab incised wound of size 2.3 X 0.3 cm present over right side neck horizontly placed, middle angle is acute and the other angle is blunt placed 2.5 cm below the angle of mandible and 6.5 cm right to mid line of neck. The wound enter the neck muscles in backward and upward direction and then coming out from right side back of neck by making a exist wound of size 1.5 X 0.5 cm placed 7 cm below the occipital protuberance . Total length of the track is about 8 cm.
4. Stab incised wounds 2X 0.3 cm X chest cavity deep enter right side upper front of chest , horizontly placed inner angle of wound is acute and other angle is blunt -::19::- FIR No.178/08 PS: NDLS placed 1 cm below the medial end of clavicle and 2 cm right to mid line. The wound enter the chest cavity by cutting the second costal cartilage and inter the apical lobe of lung in backward and down ward direction. The total depth of the wound is about 8 cm.
5. Stab incised wound 2X0.3 X chest cavity deep over right side upper front of chest placed 2 cm below the injury no. 4. The inner angle is acute and the outer angle . The wounds into the chest cavity by cutting the third costal cartilage in backward direction enter the upper lobe of lungs. Total depth is about 8 cm.
6. Stab incised wound 1.8 X 0.3 cm X chest cavity deep present over left upper front of chest, obliquely placed, upper outer angle is acute and the other angle is blunt.
The wound enter the chest cavity by cutting the 2nd costal cartilage and enter the apical lobe of lung . The total depth of wound is 9 cm.
7. Stab incised wound 2.4 X 0.3 cm X chest cavity deep present over left upper front of chest, obliquely placed, 1 cm below the injury no. 6 and 3 cm left to midline, upper outer angle is acute and the other angle is blunt . The wound enter the chest cavity by cutting the 3rd costal cartilage in backward and downward direction and enter the heart through perforating the pericardium . The depth of wound is about 11 cm.
8. Stab incised wound 2.2 X 1.3 cm X chest cavity deep placed just below the injury no. 7, obliquely placed, lower inner angle is acute and the other angle is blunt. The wound enter the chest cavity by cutting the 4th costal cartilage on a upper aspect in backward and downward direction and perforate the pericardium to enter the right ventricle . The total depth of wound is about 12 cm.
-::20::- FIR No.178/08
PS: NDLS
9. Stab incised wound 2.3 X 0.3 cm X chest cavity over left middle front up chest placed 4 cm below the injury no. 8 and 2cm outer to injury no. 8 , obliquely placed , inner angle is acute and other angle is blunt . The wounds enter the chest cavity in backward direction and then enter the heart over left ventricle. Total depth of wound is about 11.5 cm.
10. Stab incised wound 2.5 X 0.3 cm X Chest cavity deep present 1.5 cm below and middle to injury no. 9, obliquely placed, upper outer angle is acute and the lower inner angle is blunt . The wound enter the chest cavity by cutting the upper border of 5 th rib and 4th inter costal space in backward and outward direction then perforated the pericardium and then enter the heart over right ventricle. Total depth of wound is about 12 cm.
11. Stab incised wound 2.3 X 0.3 cm X abdominal cavity deep present over front of right side lower chest , vertically placed , lower angle is acute and the upper angle is blunt. The wound enter the abdominal cavity by cutting the 9th and 10th costal cartilage and perforate the diaphragm and enter the right upper lobe of liver . The total depth of wound is about 10 cm. The wound is placed just right to midline and 15 cm above the umbilicus.
12.Stab incised wound 2 X 0.3 cm X abdominal cavity deep present 3cm below the injury no. 11 and just right to mid line the wounds enter the abdominal cavity by cutting the lower border of 10th costal cartilage and then perforate the diaphragm and enter the liver. Total depth of wound is about 10 cm. Upper angle of wound is acute and lower angle is blunt.
13. Stab incised wound 1.9 X 0.3 cm X abdominal cavity -::21::- FIR No.178/08 PS: NDLS deep, vertically placed upper angle is acute and the lower angle is blunt. The wound is placed 5 cm right to mid line and place 0.5 cm below the sub costal margin. The wound enter the abdominal cavity and then enter the liver. Total depth of wound is about 10 cm.
14. Stab incised wound 2.2 X 0.2 cm present over right palmer aspect of hypothenar area enter the muscle and make it exist wound on dorsum of hand of size 1.8 X 0.3 cm placed 1 cm below the base of thumb.
15. Incised wounds 2 X 0.5 cm X muscle deep over right palmer aspect of hand 1 cm distal to injury no. 14.
16. Incised wounds 1.5 X 0.5 cm X muscle deep present over palmer aspect of right hand of thumb over tip .
17. Incised wounds 1.5 X 0.3 cm X muscle deep over right dorsum of hand placed 2cm below the base of little finger .
Postmortem injuries:
1. Traumatic amputation of left upper limb at lower 1/3 rd of arm , margins of wounds are pale and no extra vassation of blood seen over soft tissue .
2. Bilateral amputation of lower limb at knee joints , margins of wound are pale and no extra vassation of blood seen underlying soft tissues On Internal examination - the injury present in the organs are already described in anti-mortem injuries and about 2 ltrs of blood present in chest cavity and 1 ltr of blood present in the abdominal cavity OPINION: The cause of death was haemorrhagic shock due to antimortem stab injuries to heart and abdomen organs and sufficient to cause death in ordinary course of nature. The injury no.1 produced by blunt force impact and injury no. 2 to 17 produced by single sharp edge -::22::- FIR No.178/08 PS: NDLS pointed weapon. Injury no. 3 to 13 were sufficient to cause death in ordinary course of nature individually and collectively both. The injury no. 14 to 17 were defence wounds ."
He has proved his detailed report as Ex. PW12/A. He further deposed that on 13/6/2008 Inspector Sumer Singh has moved an application for opinion of weapon of offence; Investigating Officer handed over to him a sealed parcel containing knife alongwith all inquest papers. He examined the knife and the measurement and the diagrammatic presentation was given on the back of the application Ex. PW12/B. He further deposed that after examination he opined that injury no. 2 to 17 could be possible to cause the death by this weapon and proved his opinion in that regard Ex. PW12/C and also identified the knife Ex. P7.
6) In their statement u/s 313 CrPC all the accused persons denied the allegations stating that they are innocent and falsely implicated in this case and did not desire to lead evidence in defence.
7) Ms Sadhana Bhatia, Ld Amicus Curiae for all the accused has argued that the prosecution has failed to prove its case beyond reasonable doubt on the following grounds:- -::23::- FIR No.178/08
PS: NDLS A) The evidence of Investigating Officer PW21 Inspector Sumer Singh is not reliable because he did not state anything about recovery of clothes by the accused persons.
B) No site plan was prepared at the time of recovery of clothes and weapon of offence i.e knife which shows that the alleged recovery was never made at the instance of accused persons.
C) No public witness was joined at the time of alleged recovery of knife and clothes at the instance of accused persons and no employee of Shulabh Sochayala was made as witness when the clothes were allegedly recovered from there.
D) The name of the boy who brought down the clothes from the red building was not known to the Investigating Officer and he was not made a witness or his statement was not recorded.
E) There is no evidence regarding motive of crime as no enmity between the accused persons and deceased has been shown or proved.
F) The Constable who was no duty at platform no. 2/3 where alleged incident took place was not made a witness.
G) Public witnesses PW1 and PW3 are stock witnesses of the police and they have been planted as eye witnesses because they have not seen the alleged murder and their evidence in that -::24::- FIR No.178/08 PS: NDLS regard is shaky and not reliable. There are material contradictions in their deposition as under:
1. PW1 stated that PW3 Imran used to book tickets whereas PW3 stated that he had been working as Guard for the last 4/5 years.
2. PW3 stated that PW1 used to stay at his house in Delhi whereas PW1 stated that he came from Jaipur directly on 30/12/08 by bus.
Therefore, Ld Amicus Curiae has argued that the prosecution has failed to prove it case against the accused persons beyond reasonable doubt and therefore they are entitled to acquittal.
8) Ld Addl. PP for the State on the other hand argued that the public witnesses PW1 and PW3 has fully supported the prosecution case and there is nothing in their cross-examination which may have assailed their deposition; the contradictions in the deposition of the public witnesses are minor in nature and has not adversely affected the prosecution case; the recovery of weapon of offence and the clothes worn by the accused persons at the time of commission of the crime has been established beyond -::25::- FIR No.178/08 PS: NDLS reasonable doubt. It is vehementally argued on behalf of State that the prosecution has proved its case beyond reasonable doubt and accused persons are liable to be convicted.
9) I have considered the rival submission made at bar and also gone through the evidence on record.
10) The prosecution is relying on the deposition of PW1 Ram Kumar Sharma and PW3 Imran Kirmani alongwith recovery of weapon of offence and some clothes at the instance of the accused persons. PW1 and PW3 has been presented as eye witnesses to the murder committed by accused persons. Let us examine whether the deposition of PW1 and PW3 has established the prosecution case for proving the guilt of accused persons beyond reasonable doubt.
11) PW1 Ram Kumar Sharma has narrated the incident as under:-
"On 22/5/2008 he alongwith Imran Kirmani was going to Ghaziabad at about 10.45PM when they reached at platform no. 2/3 for boarding the EMU train, they had seen some persons who were giving beatings to one person; out of those persons two boys namely Liyakat Ali @ Raju and Balkishan @ Natu were known to them as they used to visit their -::26::- FIR No.178/08 PS: NDLS reheri for eating food and taking tea and the boys in total six in number; they were telling one boy to clear their accounts otherwise they would kill him; accused Balkishan @ Natu present in the court had taken out a knife from his pocket and stabbed that boy and other persons had apprehended that boy from his hands and legs and Raju present in the court has pressed the neck of that boy; boy who was stabbed that boy was Balkishan @ Natu and had raised alarm and then silent/stopped; then both of them had boarded their train and did not bother about this incident as it was happening in routine on the station between that type of boys. ................."
12) Ld Amicus Curiae for accused persons has argued that their deposition of PW1 and PW3 is not reliable because the same has no substance in it. It is specifically pointed out that PW1 has stated that they both went for boarding the train and did not bother about the incident as it was in routine happening on the station between that type of boys. It is argued that if it was a routine matter; how they have meticulously witnessed the murder by pointing out the role of each accused. Ld Amicus Curiae further pointed out that examination-in-chief wherein it is stated that on the next day when they reached their reheri and some persons were discussing the murder at that place shows that the incident was not witnessed by these witnesses and the same came to their -::27::- FIR No.178/08 PS: NDLS knowledge only at their reheri when police reached there and some persons had been discussing about the murder. Ld Amicus Curiae further pointed out that it is very surprising that all the accused persons were apprehended from the place near reheri of these public witnesses and they were apprehended at their instance. It is therefore strongly argued that both these witnesses are planted witnesses and are informer of the police.
13) In his cross-examination PW1 has stated that he had been putting up his reheri for selling chat and fruits adjacent to Reservation Building at New Delhi Railway station with the help of police officials of Police Station Paharganj; his reheri was never objected by the police and police officials did not make any challan of his reheri. He has further admitted that police officials used to come on his reheri for eating fruits etc. In his further cross-examination PW1 was confronted with his statement Ex.PW1/DA wherein the word "knife" is not mentioned. It is simply mentioned something (koi chees) was taken from the pocket by accused Natu for inflicting injuries to the deceased. He has further admitted in his cross-examination that he did not make any efforts to save the deceased because it was routine on the railway station and he did not inform the police officials or the RPF as he went to his home on that day. PW1 has denied the -::28::- FIR No.178/08 PS: NDLS recovery of the clothes of accused Balkishan @ Natu and accused Liyakat Ali in his presence despite the fact he has signed the recovery memo as witness. Ld Addl. PP for the State has re- examined this witness on these aspects wherein he has stated that since he was ill and having fever he might have deposed something different in that regard otherwise he had correctly deposed about the recovery of the clothes of the accused persons in his presence.
14) In his cross-examination he has further stated that clothes were taken from the roof of the building by one rag picker. Ld Amicus Curiae has already argued that said rag picker was not made as witness which has prejudiced the defence of the accused persons. Ld Amicus Curiae further argued that this witness is planted witness by the police is also established from the fact that arrest of accused Ashish Kumar Pandey has been shown at their instance on 30/12/2009 near Lockup, Tis Hazari Courts, Delhi . There is no substance in the deposition of both these witnesses that they had gone to Tis Hazari Courts, Delhi to meet owner of shop of photostate who was known to them. It is so because the name of that owner of photostate and the name of the shop is not mentioned by them and no detail in that regard was collected by the Investigating Officer .
-::29::- FIR No.178/08
PS: NDLS
15) PW3 Imran Kirmani has also deposed on the similar lines in his examination-in-chief as deposed by PW1. But in his cross- examination he has contradicted the deposition of PW1 wherein he has stated that on 30/12/2008 they came to Tis Hazari Courts, Delhi to meet their friend Naved who met in the private parking of the court. He further admitted that Naved was not earlier known to PW1 Ram Kumar Sharma. PW1 in his cross-examination has stated that they have came to meet the owner of the photostate shop who was their friend.
16) PW18 Inspector C.R. Meena has stated that on 30/12/2008 when he had brought the accused for judicial custody remand, both the public witnesses Ram Kumar Sharma and Imran Kirmani had met him as they had reached in the court to meet their one known person who was present in the shop of photostate machine and both these witnesses had correctly identified accused Ashish Kumar Pandey @ Pandit. Thus the whole investigation of the prosecution is revolving around these two public witnesses either at the time of arrest of accused persons from their reheri or at the time of arrest of other accused at Tis Hazari Courts, Delhi again in their presence. This facts shows that both these witnesses are closely known to the police officials and the Investigating Officer. It is also admitted by these public witnesses that they are running -::30::- FIR No.178/08 PS: NDLS a reheri near Railway station with the help of local police who had never issued challan to them. In these circumstances there is every likelihood that these witnesses has never seen the incident having taken place or that they might have been planted as eye witnesses.
17) PW21 Inspector Sumer Singh who is the main Investigating Officer has stated that public witnesses Ram Kumar Sharma and Imran Kirmani has disclosed to him about the involvement of six boys two of whom were known to them by name and other four by face. He has further stated that on enquiries made by him, both the witnesses disclosed that due to the bad weather and late hour they did not inform the police on the same day and went to their houses. This explanation given by them to the IO is contradictory to the explanation given by them in their deposition which again shows that they have not deposed fairly and truthfully about the incident and a serious doubt is created in their version having witnessed the commission of the murder by the accused persons. It is surprising to note that in their statement u/s 164 CrPC proved on record as mark-B and mark- A, both the public witnesses stated that after witnessing the alleged murder taking place, they left the spot because of fear.
18) Another glaring discrepancy in the deposition of these -::31::- FIR No.178/08 PS: NDLS public witnesses is that the weapon of offence knife was never shown to them during investigation despite the fact that they have deposed about use of knife by accused Natu for stabbing the deceased by it. If as per their version they have witnessed the accused bringing out from his pocket the alleged knife and stabbing the deceased by it, they were the best person to have identified the said knife. This fact again creates a serious doubt about the PW1 and PW3 having seen the actual incident.
19) For the above reasons, I agree with Ld Amicus Curiae that PW1 and PW3 are not the eye witnesses to the incident and because of their proximity with the police officials they might have been planted as eye witnesses. The deposition of these two witnesses is neither reliable nor trustworthy as the same suffers from various discrepancies and infirmities and they are neither straight forward nor coherent in their deposition.
20) The prosecution has tried to establish the guilt of the accused persons by proving the recovery of weapon of offence i.e knife at the instance of accused Bal Kishan @ Natu on 29/5/2008 and also on the opinion of Doctor PW12 who has given his opinion Ex.PW12/C regarding possibility of causing fatal injuries no. 2 to 17 by the knife Ex. P7 to the deceased. The alleged -::32::- FIR No.178/08 PS: NDLS recovery of knife Ex. P7 according to prosecution was made at the instance of accused Balkishan @ Natu in pursuance of his disclosure statement Ex. PW3/D and Ex. PW3/E. Both these disclosure statements have been recorded on the same day i.e 27/5/2008. There is no explanation by Investigating Officer PW 21 Inspector Sumer Singh as to how the two disclosure statements were made by the accused disclosing the same and similar facts. In his deposition PW21 stated that on interrogation accused persons Balkishan @ Natu and Liyakat Ali @ Raju made their disclosure statements Ex.PW3/E and Ex. PW3/F; the accused Balkishan has admitted his guilt and he again recorded his statement Ex. PW3/D. I have gone through the both these disclosure statements. Both these disclosure statements contained almost same facts. In the disclosure statement as Ex.PW3/D the accused Natu has stated that the weapon of offence knife was given by him to Pandit for hiding the same somewhere and he can get him arrested and also can get the knife recovered. In his disclosure statement Ex.PW3/E which according to PW21 was the first disclosure statement, accused Natu has stated about the knife as under:-
" jo mane chaku ko Pandit ko diya tha. Jo Pandit ne mere samane Lal quarter ke pass jhariyo me dal diya -::33::- FIR No.178/08 PS: NDLS tha jisko mai baramad kara sakata hoon".
If this disclosure statement was already made by the accused about the throwing of the knife, then where was the occasion for him not to disclose the said fact in his subsequent disclosure statement Ex.PW3/D which was also made on the same date. This glaring discrepancy raises a serious doubt about making of the disclosure statement by accused Balkishan @ Natu. If making of the disclosure statement is itself doubtful, I am afraid as to how the prosecution can be stated to have proved the recovery of knife Ex. P7 u/s 27 of Indian Evidence Act. In Mohmed Inayatullah, V. The State of Maharashtra, AIR 1976 SC 483, it was held that the first condition necessary for bringing the section 27 of the Indian Evidence Act into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence . The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "strictly" "unmistakably" . The phrase "distinctly" relates "to the fact thereby discovered". This -::34::- FIR No.178/08 PS: NDLS phrase refers to that part of information supplied by the accused which is the direct and immediate cause of the recovery.
21) Further, it is very surprising to note that in the pointing out memo and seizure memo of knife it is stated that accused Balkishan @ Natu led the police party to the bushes behind a room on the Nizammudin side of New Delhi railway station and got recovered knife stating that he alongwith his accomplices has hidden the knife there. Thus the version of the accused in this pointing out-cum-seizure memo Ex. PW5/C is totally different from the version of the accused in his disclosure statement Ex.PW3/D and Ex. PW3/E. Therefore, the alleged recovery of weapon of offence cannot be stated to have been made on the basis of the information given by the accused.
22) Regarding the recovery of the blood stained clothes at the instance of the accused persons, admittedly no site plan was prepared at the time of recovery and the recovery of the clothes was made by a rig picker and not by the accused person. Because the rag picker was not made a witness, therefore the said recovery itself becomes doubtful. Moreover, there is no evidence on record to show that the blood found on the said clothes Ex.P1 to Ex.P6 was of the deceased. Since the recovery of the knife at the instance -::35::- FIR No.178/08 PS: NDLS of the accused is found to be doubtful, the prosecution cannot be benefited in any manner from the opinion of the Doctor PW12 regarding weapon of offence and its possibility for causing injuries no. 2 to 17 on the body of the deceased.
23) On the basis of the above discussion, I am of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond any reasonable doubt. Benefit of doubt is given to the accused persons and they are accordingly acquitted. They are in judicial custody, hence be released, if not required in any other case.
File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 27/11/2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI