Delhi District Court
State vs . Abhijeet Raj on 24 July, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 91/2013
Unique Case ID No. : 02404R0151252012
State Vs. Abhijeet Raj
S/o Akhilander Kumar Sinha
R/o Shiv Sadan in front of
Anand Mkt. Balua Chowk
Matihari East, Champaran,
Bihar
(Convicted)
FIR No : 66/12
Police Station : Mukherjee Nagar
Under Section : 302 IPC
Date of committal to session court: 10.7.2012
Date on which orders were reserved: 6.6.2014
Date on which judgment announced: 5.7.2014
JUDGMENT:
(1) As per the allegations, on the intervening night of 26.2.201227.2.2012, between 11.30 PM to 12.15 AM, at Open Road, near Hanuman Mandir, Vijay Nagar, Delhi the accused Abhijeet Raj caused the death of Ashish by inflicting injuries upon him. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 1 BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution that during the intervening night of 2627.02.2012 at about 12:45 AM (midnight) DD No. 7A was received at Police Station Mukherjee Nagar regarding stabbing of one boy on which SI Hemant along with PSI Pawan Kumar reached the spot i.e. near Hanuman Mandir, Vijay Nagar at around 1:00 AM where on the one side of the road they found blood scattered, two coins of one and two rupees smeared with blood, half blade and a pair of chappals. At about 1:45 AM SI Hemant DD No.12A was received from Hindu Rao Hospital regarding any injured being brought dead, on which PSI Pawan was left for preserving the spot of the incident whereas SI Hemant reached Hindu Rao Hospital where and obtained the MLC of injured Ashish who was declared brought dead by the doctors and the deceased had already been shifted to the mortuary by that time. Thereafter SI Hemant reached the mortuary where he inspected the body and found visible injuries on the left eye of the injured. SI Hemant then met one Rohit Negi in the hospital and recorded his statement.
(3) Rohit Negi informed the Investigating officer that he along with his friend Ashish Kumar Sharma went to the house of their common friend Vijay at Patel Chest, Christian Colony, North Campus but Vijay was not found present there and other boys namely Abhijeet Ranjeet and Sagar were present at the room of Vijay where they were consuming liquor and they were joined by Ashish (deceased) and Rohit Negi.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 2
During the drinking session there was a hot discussion between Abhijeet (accused) and Ashish Kumar Sharma (deceased) on the the quality of cars but the matter was pacified by their friends. Thereafter Ashish and Abhijeet put their hands on each other and went away from the gali. Rohit Negi had some suspicions on which he followed both of them but they could not be traced on which he (Rohit Negi) again returned back to the outside of the colony where Nitin met him and informed that Abhijeet caused the death of Ashish. Thereafter Rohit Negi ran towards the left side of nala where he found Ashish in injured condition and blood was oozing out from the backside of his head and from his eyes, on which he along with Bharat and Nitin put Ashish in the Ascent Car and took him to Hindu Rao Hospital where he was declared dead by the doctors. (4) On the basis of statement of Rohit Negi the present case was registered. During investigations the accused Abhijeet Raj was arrested from his native village at Motihari, Bihar and was interrogated wherein he disclosed his involvement in the present case. On 07.03.2012 the accused Abhijeet Raj led the police party to Agra at Tundla Road and then led them to fields near Kalpana Hotel, which is situated on the main highway i.e. NH2 and from the corner of the wheat field, the accused got recovered a knife which he had used in the commission of present offence. After completion of investigations charge sheet was filed against the accused Abhijeet Raj.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 3 CHARGE:
(5) Charge under Section 302 Indian Penal Code has been settled against the accused Abhijeet Raj to which he pleaded not guilty and claimed trial.
(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. PW Name of the witness Details
No. No.
1. PW1 Kuldeep Sharma Public witness - Brother in law/ Jija of the
deceased
2. PW2 HC Kailash Police Witness MHCM
3. PW3 HC Raj Kumar Police Witness - Duty Constable at Hindu
Rao Hospital
4. PW4 Ct. Sandeep Police Witness - Special Messenger
5. PW5 SI Suhsil Kumar Police Witness who had taken the exhibits to
FSL
6. PW6 Ct. Anil Kumar Police Witness - PCR official
7. PW7 Insp. Mahesh Kumar Police Witness Draftsman
8. PW8 SI Sanjeev Kumar Police Witness - Crime Team Incharge
9. PW9 HC Arvind Kumar Police Witness - Duty Officer
10. PW10 HC Sudhir Kumar Police Witness - Crime Team Photographer
11. PW11 Ct. Narpal Police Witness who had deposited the exhibits
to the FSL
12. PW12 Dr. Dharamraj Witness from Hindu Rao Hospital who has
proved the MLC of the deceased
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 4
13. PW13 Dr. Abhishek Pachouri Witness from Hindu Rao Hospital who has proved the postmortem report of the deceased
14. PW14 Vipin Chauhan Public Witness - Private Photographer
15. PW15 Navdeep Public Witness - Elder brother of the deceased
16. PW16 Rohit Singh Negi Public Witness - Complainant/ Friend of the deceased
17. PW17 SI Sanjay Tomar Police Witness who has proved the apprehension and arrest of the accused
18. PW18 HC Santosh Police Witness who has proved the apprehension and arrest of the accused
19. PW19 SI Ranbir Singh Police Witness who has joined investigations with Inspector Mahesh Kumar
20. PW20 Jai Mishra Public Witness who was present at the spot
21. PW21 Vijay Kumar Public Witness to whom the deceased had gone to meet
22. PW22 Khir Sagar Patel Public Witness who was present at the spot
23. PW23 Sh. M.L. Meena FSL Expert
24. PW24 Manoj Kumar Witness from FSL who has proved the Biological and Serological Examination reports
25. PW25 SI Hemant Kumar Police Witness who had first reached the spot of incident
26. PW26 Naresh Kumar Witness from FSL who has proved the Biological and Serological Examination reports
27. PW27 Nitin Kumar Public Witness who was present at the spot
28. PW28 Insp. R.S. Meena Police Witness - Subsequent Investigating Officer
29. PW29 SI Pawan Police Witness - Initial Investigating Officer
30. PW30 Insp. Mukesh Kumar Police Witness - Investigating Officer
31. PW31 Bharat Public Witness who was present at the spot St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 5 List of Documents:
Sr. Exhibit Details of document Proved By No. No. 1. PW1/A Dead body identification statement Kuldeep Sharma 2. PW2/1 Affidavit of evidence of HC Kailash HC Kailash 3. PW2/A Copy of Reg No. 19 Sr. No. 2664 4. PW2/B RC 17/21/12 5. PW2/C RC 19/21/12 6. PW2/D RC 20/21/12 7. PW2/E RC 23/21/12 8. PW2/F Copy of Reg No. 19 Sr. No. 2719 9. PW2/G Copy of Reg No. 19 Sr. no. 3009 10. PW2/H Copy of FSL Receipt 11. PW2/I Copy of FSL Receipt 12. PW2/J RC 22/21/12 13. PW2/K Copy of FSL Receipt 14. PW2/L Copy of FSL Receipt 15. PW3/1 Affidavit of HC Raj Kumar HC Raj Kumar 16. PW3/A DD No. 12A 17. PW3/B Seizure memo of Articles of Deceased 18. PW4/1 Affidavit of evidence of Ct. Sandeep Ct. Sandeep 19. PW5/1 Affidavit of evidence of SI Sushil Kumar SI Sushil Kumar 20. PW5/A Seizure memo of Dumble 21. PW6/1 Affidavit of evidence of Ct. Anil Kumar Ct. Anil Kumar 22. PW6/A PCR Form 23. PW7/1 Affidavit of evidence of Insp. Mahesh Kumar Inspector Mahesh 24. PW7/A Scaled site plan Kumar 25. PW8/1 Affidavit of evidence of SI Sanjeev Kumar SI Sanjeev Kumar 26. PW8/A Crime team Report St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 6 27. PW9/1 Affidavit of evidence of HC Arvind Kumar HC Arvind Kumar 28. PW9/A FIR 29. PW9/B Endorsement on Rukka 30. PW10/1 Affidavit of evidence of HC Sudhir HC Sudhir 31. PW10/A1 Photographs to 9 32. PW10/B Negatives 33. PW11/1 Affidavit of evidence of Ct. Narpal Ct. Narpal 34. PW11/A Pointing out memo 35. PW12/A MLC of Ashish Dr. Dharamraj 36. PW13/A Postmortem report Dr. Abhishek 37. PW13/B Subsequent Opinion Pachauri 38. PW13/C Sketch of weapon 39. PW14/A1 Photographs Vipin Chauhan to A8 40. PW14/B CD of photographs 41. PW15/A Statement of Nardeep Nardeep 42. PW15/B Dead body handing over memo 43. PW16/A Statement of Rohit Rohit 44. PW17/A Arrest memo SI Sanjeev Tomar 45. PW17/B Personal search memo 46. PW17/C Disclosure statement 47. PW19/A Sketch of knife SI Ranbir Singh 48. PW19/B Seizure memo of knife 49. PW20/DX1 Confronted statement Jai Mishra 50. PW22/A Seizure memo of Bag Khir Sagar Patel 51. PW23/A FSL Report Sh. M L Meena 52. PW24/A Biological Report Manoj Kumar 53. PW24/B Serological report 54. PW25/A DD No. 7A SI Hemant Kumar St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 7 55. PW25/B Seizure memo of two blood stained coins, half blade and one pair of chappals 56. PW25/C Rukka 57. PW28/A Subsequent Opinion Insp. R S Meena 58. PW29/A Seizure memo of blood sample and clothes of SI Pawan Kumar deceased 59. PW30/A Site plan Inspector Mukesh 60. PW30/B Application for conducting the postmortem Kumar 61. PW30/C Brief fact EVIDENCE: (7) In order to prove its case the prosecution has examined as many as Thirty Witnesses as under: Public Witnesses: (8) PW1 Kuldeep Sharma is the brother in law/ Jija of the
deceased Ashish Sharma who has deposed that on 27.2.2012, he identified dead body of Ashish Sharma who was his real brotherinlaw (saala) in Hindu Rao Hospital, Delhi vide his statement which is Ex.PW1/A. According to him, thereafter postmortem of the deceased was conducted and after postmortem the dead body was handed over to Navdeep, who is elder brother of deceased, by the Investigating Officer Inspector Mukesh Kumar. He has further deposed that the Investigating Officer also recorded his statement under Section 161 Cr.P.C. This witness has not been cross examined by the Ld. Defence Counsel despite being granted an opportunity in this regard.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 8
(9) PW14 Vipin Chauhan has deposed that he is a photographer and has a shop at Wadhwa Market, Camp Chowk, Mukherjee Nagar, Delhi. According to the witness, on 27.02.2012 at about 1011 AM one constable of Police Station Mukherjee Nagar came to his shop and took him to police station where he took photographs of one ACCENT car of white color which was found parked outside the Police Station by his digital camera. The witness has proved that he prepared the positive photographs and handed over the same to the police with the CD of the photographs, which photographs are Ex.PW14/A1 to Ex.PW14/A8 and the CD is Ex.PW14/B. (10) In his cross examination by the Ld. Defence Counsel, the witness deposed that police has not recorded his statement. He has denied the suggestion that he never went to the police station or that he never took any photographs of any ACCENT car.
(11) PW15 Navdeep Sharma has deposed that the deceased Ashish was his younger brother. According to the witness, on 26.07.2012 he was present at his village Fatehpur Kalan, District Saharanpur, UP and in the intervening night of 26/27.02.2012 at about 1:19 AM (midnight) he received a mobile call from Rohit Negi that an incident took place and his brother Ashish Kumar Sharma was admitted in the Hindu Rao Hospital in an injured condition. The witness has testified that he immediately rushed to Delhi and reached at the spot i.e. Vijay Nagar, in front of Hanuman Mandir, Delhi at about 4:30 AM where he found a lot of blood St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 9 there. According to him, he also found one slipper of grey color of Ashish at the spot which was smeared with blood. He has also deposed that he went to Hindu Rao Hospital and came to know that his brother Ashish Kumar Sharma had already expired after which he reached at Police Station Mukherjee Nagar where he found ACCENT car bearing No. DL8CJ1289 of Ashish Kumar Sharma at the gate of the Police Station. The witness has further deposed that he found one blood stained shirt of Ashish Kumar Sharma and some blood stained newspapers on the rear seat of the car. According to him, he again reached at Hindu Rao Hospital and on the same day postmortem was conducted after which he identified the dead body of his brother Ashish Kumar Sharma and police recorded his statement in this regard vide Ex.PW15/A. He has testified that after postmortem dead body was handed over to him vide Ex.PW15/B. According to the witness, he took the above said car on superdari by the order of the court. The ACCENT car shown in the photographs Ex.PW14/A1 to Ex.PW14/A8 and the blood stained shirt and blood stained newspapers are shown in the photographs Ex.PW14/A2, Ex.PW14/A3 and Ex.PW14/A8. The said ACCENT car is Ex.P2.
(12) The witness has also identified the one shirt having brown stains belonging to the deceased which is Ex.P3 and newspapers having brown stains which were found on the rear seat in the car which St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 10 newspapers are Ex.P4; one pair of slippers of off white/ cream/dirty greyish color belonging to the deceased which are collectively Ex.P5. (13) In his cross examination by the Ld. Defence Counsel the witness has deposed that Ashish was residing with him and his mother at Khajuri Khas. According to the witness, he went to his village of District Saharanpur at about 12 noon from Delhi. The witness has also deposed that he gave his statement U/s. 161 Cr.P.C. in Police Station and he met his brother for the last time on 26.02.2012 in the morning. (14) PW16 Rohit Singh Negi has deposed that in the month of February 2012, he was working as a Senior Executive in TIC (The Innuedo Communication) Karol Bagh and Ashish Kumar Sharma was his close friend to whom he was known since 67 years. According to that the witness, he made a plan to meet his friend Ashish Kumar Sharma in a usual manner and on 26.02.2012 at about 8:158:30 PM Ashish Kumar Sharma met him at Hudson Lane, near NDPL office. He has further deposed that they consumed some Whiskey and thereafter they moved towards the house of Ashish Kumar Sharma at Khajuri Khas. The witness has also deposed that they reached near his house at about 9:309:40 PM. He has testified that Ashish went to his house and he was waiting for him in his car ACCENT of white color and he brought a shirt and some paranthas from his house. According to him, thereafter Ashish made a call to Vijay, their common friend and reached at the room of Vijay at Patel Chest, Christian colony, North campus but Vijay was not St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 11 present at his room. He has also deposed that Abhijeet, Ranjeet and Sagar were present at the room of Vijay where they were consuming liquor there and they also consumed some liquor there. He has testified that Sagar was saying that he was planning to buy a car make REVA after which a hot discussion started between Abhijeet and Ashish Kumar Sharma about the cars and they started quarrelling with each other but due to their intervention they were separated. According to the witness, meanwhile Nitin and Bharat also reached there after which Ashish Kumar Sharma went away from there at the room of his friend at Patel Chest. He has also deposed that he along with Sagar came down from the room of Vijay and after 15 minutes Ashish Kumar also came there. He has testified that Abhijeet also came down from the room of Vijay and again discussion took place between Ashish and Abhijeet and hot words exchange between them. The witness has further deposed that they tried to pacify both of them and thereafter Ashish and Abhijeet put their hands on each other and went away from the gali. According to the witness, he was waiting for them but after ten minutes he had some suspicion on which he followed both of them. The witness has also deposed that he searched for both of them but they could not be traced out then he again returned back to the outside of the colony where Nitin met him and informed that Abhijeet caused the death of Ashish (Abhijeet ne Ashish ko mar diya). The witness has testified that he ran towards St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 12 the left side of nala where he found Ashish in injured condition and blood was oozing out from the backside of his head and from his eyes. He has also deposed that he took out the keys of the car from his pocket and brought his car at the said place near nala and he along with Bharat and Nitin put Ashish in the car and took him to Hindu Rao Hospital but he was declared dead by the doctors. The witness has further deposed that he made a call to the brother of Ashish about the incident. According to him, Police also came at Hindu Rao Hospital and he also went to the Police Station Mukherjee Nagar with the car of Ashish. He has testified that the shirt of Ashish which was brought by him from his house was also smeared with blood and some newspapers were also on the rear seat found smeared with blood. He has proved that police recorded his statement vide Ex.PW16/A. According to him, a photographer also came at the police station on the next morning and took photographs of the car and the articles. He has proved that the police sealed said newspapers and shirt and sealed the same with a stamp and seized the car and the above said pullanda vide seizure memo Ex.PW16/B. (15) Witness has correctly identified the accused Abhijeet Raj in the Court and also the case property i.e. ACCENT car bearing No. DL8CJ1289 which is Ex.P2 which car is also shown in the photographs Ex.PW14/A01 to Ex.PW14/A8 and the blood stained shirt and the newspapers are shown in the photographs Ex.PW14/A2, Ex.PW14/A3 St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 13 and Ex.PW14/A8; shirt of the deceased which is Ex.P3 and blood stained newspapers which are Ex.P4.
(16) The Ld. Addl. PP for the State put leading questions to the witness about the manner of the incident, on which the witness has denied the suggestion that Sagar was saying about the purchase of SUV vehicle and has voluntarily explained that Sagar was saying that he was planning to purchase a REVA vehicle. He has admitted that Sagar was saying about the purchase of SUV vehicle and thereafter Ashish told him and advised him to purchase the REVA. He has also admitted that a hot discussion started between Abhijeet and Ashish about the qualities of the vehicles and when Ashish returned back after 1015 minutes, Abhijeet started abusing him and told him that "tu pehle bhi mere sath behas kar chuka hai, aur apne apko jyada samajdhar samjhta hai aur aaj mein tujh ko jinda nahi chorunga". Witness has further admitted that after this Abhijeet took Ashish from there while discussing with him and on suspicion he followed them but both Abhijeet and Ashish did not meet him at the shop of Mama Pranthe wala. He has also admitted that when he was returning back, he saw that Bharat and Nitin were running towards the nala. He has admitted that he also followed Bharat and Nitin and while running Nitin informed him that Abhijeet had returned back alone and his hands and clothes were smeared with blood and Abhijeet was saying to him that he had committed the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 14 murder of Ashish. The witness has further admitted that thereafter they reached in front of Mandir near nala where Ashish was found in injured condition.
(17) In his cross examination by the Ld. Defence Counsel, witness deposed that he met Ashish Kumar Sharma in the Hudson lane because it was fixed as a meeting point between them and has voluntarily explained that they usually met at the said place. According to the witness, his house is at a distance of seveneight kms from Hudson lane and at a distance of about 12 km from the house of Ashish whereas the house of Ashish Kumar Sharma is situated at a distance of 1011 km from Hudson lane. He has also deposed that he had not brought any vehicle with him while he reached at Hudson lane and had reached there by Metro. According to the witness, he along with Ashish went to the house of Ashish from Hudson lane in his car as Ashish wanted to take his shirt as they have planned to stay in the room of Vijay at the night time. The witness has further deposed that they consumed whiskey in the ACCENT car of Ashish in Hudson lane and it was he (witness) who brought the whiskey but he (witness) did not enter the house of Ashish and has voluntarily explained that he remained in the car. He has testified that they reached at the room of Vijay at about 10:2010:30 PM and when they reached there Sagar, Abhijeet and Ranjeet were already present there but Vijay was not present. He does not remember the brand of whiskey which they consumed at the room of Vijay. The witness has also deposed St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 15 that they took about 3045 minutes while they consumed the whiskey in the room of Vijay. He is unable to tell the name of the friend whom Ashish had gone to visit. Witness denied the suggestion that he was deliberately withholding the name of the said person/ friend of Ashish whom he had gone to visit. According to the witness, he only knew Sagar previously but not Ranjeet and Abhijeet. The witness is cannot tell the market rates of the vehicles REVA and SUV and has voluntarily explained that it was Ashish who was working with Mahendra and he was not aware of the same. Witness denied the suggestion that there was no discussion on the market price of the vehicles REVA and SUV or it is for this reason that he unable to tell the prices/rates of the same which were being discussed. He has also deposed that the place from where they found Ashish lying is hardly five minutes walking from the room of Vijay but he cannot tell the distance in terms of meters. According to him, the corner of the nala/ drain is hardly four feet from the place where Ashish was found lying. He has also deposed that after Ashish left they found him in an injured after about 20 minutes and has voluntarily explained that he had left with Abhijeet and it was after about 20 minutes that he found him in an injured condition. (18) The witness has also deposed that after giving his statement to the police he had read the same before signing the same and one more time i.e on the one of the court dates before the predecessor court. According to him, when he saw Ashish in injured condition, he was alive St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 16 at that time but he does not recollect the exact time. He has further deposed that Ashish had a plan along with him to stay at Vijay's room. He has also deposed that he knew Vijay for the last 1 ½ years prior to the day of the incident. He has testified that Ashish who was known to him for the last six years was his college friend. The witness has also deposed that they were not residing in the same area and has voluntarily explained that he resides at Chandni Chowk whereas Ashish was residing at Khajuri Khas. According to the him, they normally met twice a week. He has further deposed that presently he was working with THOT media Pvt. Ltd. and Sagar was known to him for about 67 months prior to the day of the incident and has voluntarily explained that he knew him through his friend Sarvesh and Ashish knew Sagar through him. He is not aware as to how Abhijeet was known to Ashish nor is he aware as to whether Ashish had any personal relations with Abhijeet or business relations and has voluntarily explained that he had seen him for the first time on the day of the incident. The witness has testified that Vijay was known to him through Sarvesh and through his cousin. According to the witness, he did not frequently visit Vijay and on the day of the incident it was after about 34 months that they had gone to the room of Vijay who was known to Abhijeet on the suggestion of Ashish and it was for a friendly get together. He has also deposed that he came to that Vijay was known to Abhijeet when he went to the room of Vijay because he (Vijay) had introduced Abhijeet to them as his friend.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 17 (19) The witness has explained that he had his suspicions on Abhijeet because the manner in which they had quarrel prior to their leaving together it appeared doubtful that they could have gone together and more over both of them were drunk. The witness has testified that he had only told the police in his statement that he had his doubts and suspicion on Abhijeet when he and Ashish were going together but did not tell them that both of them were drunk. He is unable to tell the exact time when Abhijeet and Ashish were going and has voluntarily explained that it was around 1111:10 PM. On a specific Court Question the witness has deposed that when he last saw Abhjijeet and Ashish they were going towards the Christian colony side and has voluntarily explained that they were outside the Christian colony and had not entered the same.
(20) He has further deposed that large number of public persons were passing through the area in which Abhijeet and Ashish were moving. He is not aware what exactly had happened to Ashish. Witness has deposed that Abhijeet has been named by him because of the suspicion which he entertained against him and has voluntarily explained also because Nitin had told him that Abhijeet was responsible for killing Ashish. According to the witness, when he saw Ashish he was still alive but he was not in a position to say anything and has voluntarily explained that he saw him bleeding heavily and he kept calling him but he did not respond. The witness has testified that when he saw him in this St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 18 condition, he immediately removed the key of his car from his pocket and rushed him to Hindu Rao Hospital. He has further deposed that he was driving the vehicle whereas Nitin and Bharat were sitting on the back seat holding Ashish. He has also deposed that he did not enter the hospital premises first and has explained that it was Nitin and Bharat who rushed Ashish inside the hospital and gave the history to the doctor and police officer and it was after about 1015 minutes that he joined Nitin and Bharat inside the hospital. He is unable to tell as to who informed the police and has voluntarily explained that when he went inside the police was already there. According to the witness, his statement was recorded at the Police Station and has voluntarily explained that only a casual inquiry was made from him in the hospital and he did not inform either the doctor or the duty constable about his suspicion on Abhijeet. He has testified that he did not personally lift Ashish while putting him inside the vehicle or in the hospital and has voluntarily explained that he only took out the keys of the car from his pocket and hence his clothes did not get smeared with blood. Witness has denied the suggestion that 26.02.2012 being a Sunday he did not go out to spend the night with the deceased or that he had been introduced as a witness in the present case at the instance of the family of the deceased being his close friend only to strengthen the case against the accused. The witness has also deposed that he had a mobile which he keeps with him and had given his mobile phone number to the police. He has denied the suggestion that there was no quarrel St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 19 between Abhijeet and Ashish and this story has been concocted and introduced on tutoring of the police or that he was one of the suspects in the present case and in order to divert the allegations on the accused the entire story of quarrel was created.
(21) PW20 Jai Mishra has deposed that on 07.02.2012 he came to Delhi to appear for his examination papers of B.A. First year of IGNOU and resided in the room of Manas for one day only and thereafter he shifted to the room of Vijay at Christian Colony, Patel Chest who was known to him since 2011. According to the witness, in the night of 25.02.2012, Rohit came to their room and on the next morning i.e. on 26.02.2012 he went away from there. He has also deposed that on 26.02.2012 at about between 8 to 9 PM he received a call of Ankit, his friend, original resident of Dibru Garh, Assam and he called him for dinner and went to the GTB Nagar, Metro Station to meet him and thereafter he alongwith Ankit went to the complex of Hudson lane to take dinner. He has testified that at about 9.30 /10:00 PM they returned back to the room of the Vijay where Vijay and Bharat met them and Vijay was in the process of changing his clothes as he had to go to Gaziabad. According to the witness, thereafter he again went to near Shani Mandir to see of his friend Ankit and after some time reached at the room of Vijay who had already left the room and Sagar, Bharat and two three persons were present there. He has testified that Sagar was giving a party of purchase of a new mobile phone and he asked him (witness) for St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 20 dinner and liquor but he (witness) told him that he had already taken his dinner and he was not consuming any liquor. The witness has further deposed that thereafter Sagar gave some money to Bharat to purchase the liquor and he asked Bharat to provide key of his room as he wanted to sleep in his room as he was not taking any dinner and liquor in their company. He has also deposed that he took key from Bharat of his room and went to his room which was adjacent to the room of Vijay. The witness has testified that he was watching movies in the Laptop of Bharat in his room and after sometime Bharat also came in the room and joined him. According to the witness, in the meanwhile they heard some noise of hot discussion from the room of Vijay on which Bharat went to see the quarrel and also advised them not to quarrel and not to make noise. He has also deposed that he made a call to Vijay that a quarrel was taking place in his room and that hot words were being exchanged and many public persons from the neighbouring houses also came there. Thereafter the occupants of the room left the room when the persons staying in the neighbourhood objected to their behaviour. According to him, thereafter Sagar, Bharat, Nitin, Ashish and Rohit went away downstairs from the said room while Abhijeet and his friend remained in the room and the same was bolted from outside by Bharat or may be by Sagar. He has also deposed that Abhijeet was shouting from the room and also hitting the door from inside and was St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 21 saying that he would not make any quarrel with Ashish. The witness has further deposed that thereupon he opened the door from the outside after which Abhijeet and his friend also went away from the room. He has testified that he made a call to Vijay and informed him that all the occupants of the room went downwards and thereafter he bolted the room from outside and went in the room of Bharat.
(22) The witness has further deposed that after about fifteen minutes he also went downstairs when he saw that one public person who may be a rickshaw puller came while running and was saying that one person was lying there in an injured condition. He has also deposed that on this he, Bharat and Nitin ran towards the said directions and Rohit also joined them and when they reached near the Shani Mandir they saw that Ashish was lying on the ground in injured condition and blood was oozing out from his eye. The witness has also deposed that Bharat told him to go to his room and inform Vijay and thereafter he went away to the room of Ravish and remained there. According to him, after sometime he received a call of Bharat who informed him that Ashish was declared dead. He has identified the accused Abhijeet in the Court. (23) With the permission of the Court, leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that the room of Vijay was situated at B47, Christian Colony, Patel Chest but he is unable to tell whether it was the room no. 6. He has St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 22 also admitted that when he returned back to the room, Sagar Abhijeet and Ranjit were sitting in the room and they were consuming liquor and Sagar offered liquor to him but he refused because he had already taken his dinner. Witness has further admitted that after hearing the noise, into room of Vijay, he alongwith Bharat reached there and Bharat entered into the room where Ashish (deceased) and Abhijeet were abusing to each other. He has admitted that Abhijeet and Ranjit were confined by them in the room. He does not remember whether he alongwith Nitin, Ashish, Rohti, Bharat and Sagar came down from the building and standing in the gali. He is unable to tell whether Ashish went to Christian Colony to meet his friend and Ashish returned back after some time and he was also standing with them in the gali. The witness has admitted that Abhijeet was having a dumble in his hand and was concealing the same at his back. He does not remember whether Abhijeet was abusing Ashish while stepping down from the stairs. He has admitted that he had seen the dumble in the hand of Abhijeet and he went down and snatched the dumble from the hand of Abhijeet and kept the same in the room of Vijay and has voluntarily explained that he had seen the dumble in the hand of Abhijeet from their balcony and he came down immediately and snatched the dumble from the hands of Abhijeet and told Bharat and other persons that he could cause injuries by said dumble to Ashish. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 23 Witness has denied the suggestion that he came down after putting the dumble in the room of Vijay and has voluntarily explained that after some time he came down. He does not remember if when he came down and all the persons were standing in the gali and Abhijeet was keeping his hand on the shoulder of the Ashish and were saying that he would talk with Ashish in the corner and thereafter both went away towards Christian Colony and has voluntarily explained that he (witness) was at a distance at that time. Witness has further deposed that he alongwith Nitin, Bharat, Sagar and Rohit seated on the stairs in the gali. He does not remember whether Rohit told that "un dono mei jhagra na ho jaye" and thereafter Rohit went away towards the gate of Christian Colony, Patel Chest. He also does not remember whether Sagar was under the influence of liquor and hence he went to his room. He has denied the suggestion that he alongwith Bharat and Nitin was standing out of the gate of the Christian Colony and has voluntarily explained that Bharat and Nitin were standing on the road in front of the gate of Christian Colony while he was standing just at the gate of the Christian Colony. The witness has also denied the suggestion that he had told the police that the accused Abhijeet told him, Bharat and Nitin while they were standing on the road in front of the gate of Chirstan Colony that he had killed Ashish and has voluntarily explained that he had told the police that he was at a little distance from Bharat and Nitin who were standing on the road in St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 24 front of the gate of Christian Colony when he saw Abhijeet come to them with a blood stained knife in his hand and he saw him talking to Bharat and Nitin but what he was telling them he could not hear. The witness has also deposed that he had seen Abhijeet with the knife in his hand which knife was blood stained and his hand also was having blood but he was not sure about his clothes, if they were also blood stained. He does not recollect whether if while running Nitin had told Rohit that Abhijeet had informed him that he had killed Ashish and has voluntarily explained that he did not recollect because he was also running at that time being extremely disturbed because at that time one public person who appeared to be rickshaw wala or a thelawala came from the nala side in a nervous condition and told them"Aap ka ek adami waha par gira para hai" on which they all including himself started running towards the direction.
(24) In his cross examination by the Ld. Defence Counsel the witness has deposed that he was not known to Ashish prior to this incident and has voluntarily explained that he had seen him for the first time on the date of the incident. According the witness, the accused Abhijeet was also not known to him prior to the incident and has voluntarily explained that he had come to the room only about 18 days prior to the incident when he had come to Delhi for giving an examination and was guest of Vijay. Witness has further deposed that he St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 25 was not present at the time when the alleged quarrel/Jhagra started and has voluntarily explained that he was in the room of Bharat which is adjoining room and hence he is unable to tell on what issue the quarrel, if any started. He has also deposed that all the boys were consuming alcohol but he is unable to tell if Ashish had also consumed alcohol. He has testified that when the Jhagra was going on, almost everybody staying the building had collected there and had threatened these boys to call the police. Witness has further deposed that all the boys thereafter left the room and saw them going. He has also deposed that he did not see with whom Ashish had left from the building. He is also unable to tell the direction in which Ashish had left. He has testified that it was after 15/20 minutes of everybody leaving the room, that he saw the public person who appeared to be thelewala running from the side of nala. According to the witness, he did not notice if the said person had also come to the spot when he had seen Ashish lying. The witness has further deposed that all of them running together but Bharat and Nitin reached the nala first whereas he and Rohit reached slightly later and has voluntarily explained that it was within few second as they were almost behind each other. The witness has further deposed that when he saw Abhijeet talking to Nitin and Bhart they were about 20 feet away from him. He has denied the suggestion that there was total darkness in the area in front of the gate of Christian colony and across the road and has voluntarily explained that there was sufficient light coming from the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 26 police station and there was also street light. He has denied the suggestion that he did not see any blood stained knife in the hands of Abhijeet or his hands stained with blood as it was not possible for him to see from that distance and has voluntarily explained that he could see clearly because of sufficient light. He is unable to tell for certainty what Abhijeet holding in his hand whether a knife, danda or something else. According to the witness, he had told the police that Abhijeet was holding a blood stained knife in his hand or his hands were stained with blood. However, when confronted with his statement Ex.PW20/DX1 the above aspect of knife has not been specifically recorded. Witness has further deposed that the person who was shouting that one person was lying in the nala did not tell them the exact location where he had seen the said person and has voluntarily explained that he was not particularly telling him but was generally telling the same. He has also deposed that he had told the police about this person who had rushed to the spot shouting. When confronted with his statement Ex.PW20/DX1 where this aspect is not so recorded. He has also deposed that when they were running towards the nala he did not notice where Abhijeet had gone. He has denied the suggestion that Abhijeet was with them when they reached the nala and saw the body of Ashish. According to him, on the date of the incident during the intervening night he alongwith the other boys and all residents of the same building were taken by the police to the Police Station and on that day his statement was not recorded and it was only St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 27 after twothree days that they were left and has voluntarily explained that they were left on first in the afternoon. According to the witness, his statement was recorded by the police on 28.02.2012 and he was also make to sign various documents and has voluntarily explained that many of them were antedated. He has testified that he had read those documents before signing the same and has voluntarily explained that they were regarding his attendance in the police station on daily basis since his statements were recorded on daily basis. Witness has admitted that he was detained in the police station for three nights and four days i.e. from the night of 27th to 29th February and 1.03.2012. He has denied the suggestion that they were all suspects in the case and i.e. why they were detained because they were witnesses to the incident so that they can identify the accused. He has also denied the suggestion that the entire story regarding Abhijeet talking to Nitin and Bharat and holding a blood stained knife has been concocted on the tutoring of the police only to divert the blame on the accused Abhijeet and to oblige the other boys who were equally the suspects in the case. According to him, out of those eight boys he only knew Vijay. He has also denied the suggestion that he was deposing falsely under the threat and tutoring of the local police to falsely implicate the accused Abhijeet.
(25) PW21 Vijay Kumar has deposed that on 26.02.2012, accused Abhijeet had come to his house at around 7:30/8:00 PM for designing the logo of his (witness's) institute as he was running a Vedanta St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 28 Education Institute at Sant Nagar. The witness has also deposed that since he had to go to attend the marriage in the family of his friend Subodh at Raj Nagar, Ghaziabad and he handed over the key of his house to Jai who was also residing with him in his house and thereafter, he left Abhijeet and Jai at their house and he left his house. According to the witness, on that day one Kheer Sagar Patel who was residing on the first floor of his house had taken one Apple Mobile Phone, had also came to his room and thereafter Abhijeet started downloading applications in the Apple Phone of Kheer Sagar Patel. He has also deposed that Kheer Sagar had also came to his home before he left his house and at that time Kheer Sagar, Jai and Abhijeet were present at his room. He has further deposed that Kheer Sagar was giving a party in his room as he had purchased Apple Mobile phone and he had also inquired from him (witness) whether he would take the drink but he (witness) refused as he had to go to attend marriage, on which he left his house at around 8:15/8:30 PM and thereafter, he went to Ghaziabad. He has also deposed that when he was attending the marriage at around 12:00/12:30 mid night, he received a telephone call from Abhijeet who told him that he was going to his home, on which he (witness) asked him to stay at his room but he refused and thereafter, he went to Laxmi Nagar. According to him, after about one hour, he started receiving telephone calls from many numbers that Ashish has been murdered. He has further deposed that Ashish was the friend of Rohit Negi who used to come in their building. According to the witness, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 29 he got nervous as Ashish had also taken a drink with Abhijeet, Jai Kumar, Kheer Sagar etc. He has further deposed that in the morning, Bharat gave a telephone call to him and told him that everyone is suspecting him, on which he came to Police Station Mukharjee Nagar in the morning at about 10:00 AM. The witness has further deposed that he alongwith Rohit, Sagar, Jai and Nitin were kept in the Police Station for about three four days and after about fourfive days, he was called by SI Sushil who came to his room and did the investigations and picked up one dumble of dekchune which was seized vide memo Ex.PW5/A. He has also proved that the sketch of the dumble was also prepared which is Ex.PW5/B. (26) He has correctly identified the accused Abhijeet Raj in the Court and also identified the case property i.e. dumble of green colour which is Ex.P1.
(27) With the permission of this Court, leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has deposed that it might be correct that he received a telephone call from Bharat on his mobile phone bearing no. 9310570331 from his mobile number. He does not remember if the mobile number of Bharat was 7827434939. According to the witness, Bharat had not told him that Abhijeet had murdered Ashish. He has also deposed that Abhijeet had not told him on telephone that he had committed the murder of Ashish and he is running from there.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 30 (28) The witness was declared hostile by the Ld. Addl. PP for the State and the witness was crossexamined by the Ld. Addl. PP for the State wherein the witness has deposed that he knew the accused Abhijeet for the last about seveneight years since he is a resident of his native village Motihari, Champaran, Bihar. According to the witness, when they were kept in the Police Station after the incident, Abhijeet was not with them during that period. He has also deposed that accused Abhijeet was residing at Laxmi Nagar at the residence of his younger brother. According to him, accused Abhijeet was not found at his house by the Police. He has also deposed that he did not try to contact Abhijeet after the incident. The witness has further deposed that Police had recorded his statement. He has denied the suggestion that he had stated in his statement that Bharat informed him on the telephone that Abhijeet had murdered Ashish (Ashish Ka Khoon Abhijeet Ne Kar Diya Hai). When confronted with statement portion 'A' to 'A' of statement Mark 'A' where it is so recorded. Witness has also denied the suggestion that he had stated in his statement to the Police that Abhijeet told him on telephone that he had murdered Ashish and he is running away from there (Maine Ashish Ko Maar Diya Hai Aur Mai Yahan Se Bhaag Raha Hoon). Confronted with statement portion 'B' to 'B' of statement Mark 'A' where it is so recorded. He has denied the suggestion that he was deposing falsely in this regard as accused Abhijeet is known to him and of his village and he was trying to save him.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 31 (29) In his cross examination by the Ld. Defence Counsel, the witness has deposed that Police had obtained his signature on some blank papers when he went to the Police Station on the next morning. (30) PW22 Khir Sagar Patel has deposed that on 26.02.2012, at around 5:00 PM, he was present in Christian Colony, Delhi and at that time he was residing in the same colony in House No. D47, Second Floor, Room No. 11. According to the witness, he had purchased one Apple Mobile Phone but he was not able to download the software when at around 5:00 PM Vijay and Abhijeet met him in the Colony on which he told to Vijay that he was not able to download the software. He has testified that Vijay told him that Abhijeet was having IPhone and he can download the software on which he alongwith Vijay and Abhijeet went on the room of Vijay at First Floor of the building where he was residing. The witness has further deposed that in the room, Abhijeet had downloaded the software in his Mobile Phone and they demanded a party from him for the purchase of mobile phone after which he went to bring Whiskey from the market and came back after about 1015 minutes with Whiskey when in the mean time Vijay received a telephone call of his friend as he had to go to attend marriage at Ghaziabad. He has testified that one Jai was residing with Vijay in his room and in the adjoining room of Vijay, one Bharat was residing. The witness has also deposed that Bharat and Jai had also asked him for the party and thereafter he he alongwith Bharat, Jai and Abhijeet had sat in the room of Vijay for taking St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 32 drink. He has further deposed that Vijay had left the room for Ghaziabad and they were taking the drinks and normal talks regarding the IPhone were going on. The witness has also deposed that after around one hour, one Rohit had also come there and to whom he met second time through Vijay. According to the witness, he also offered drinks to Rohit but Rohit told him that he did not drink Whiskey and only drinks Rum. He has further deposed that Rohit informed him that his friend Ashish was also coming there with Rum. After some time, Ashish had also come there and Rohit introduced Ashish to everybody present there. The witness has also deposed that thereafter Ashish and Rohit had also joined the party while Abhijeet was downloading the data with the help of date cable through laptop in the mobile phone. He has testified that when they were taking the drinks, they were talking loudly and Nitin who was residing on the third floor came there and asked them not to make noise. According to him, as they almost finished of their drinks so he asked all of them to come down as people from the neighbours were objecting, after which they all came down. He has testified that when they came down, Jai told him that he had become intoxicated (Nasha Ho Gya Hai) and was going to his room and thereafter, he went to the room after which they came near the gate of the Christian Colony. The witness has further deposed that Ashish was talking on the phone and Nitin, Abhiheet, Rohit, Bharat and Ashish were all talking to each other. He has further deposed that thereafter even he told the others that he had to go as he had to get up St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 33 early in the morning and he also became intoxicated (Nasha Ho Gya Tha). According to him, he also inquired from Abhijeet as to whether he would stay here or he would go but Abhijeet told him that he would go from there as Vijay was not present there, on which he (witness) came to his room. The witness has further deposed that at about 3:00 PM, police came to his room and took him to the Police Station and made inquiries form him. According to the witness, he remained there for about three four days and he did not know anything more about the present case. (31) The witness was declared hostile by the prosecution and in his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he knew accused Abhijeet through Vijay as he had met him once or twice. According to the witness, he alongwith Nitin, Bharat, Vijay were kept in the Police Station for about threefour days but accused Abhijeet was not with them during these days in the Police Station. He has also deposed that accused Abhijeet was not found present in Delhi after the incident and the Police made inquiries from him but did not record his statement and has voluntarily explained that Police had given him some blank papers and obtained his signatures on those blank papers. He has denied the suggestion that Police had recorded his statement or that during the party, he told that to purchase SUV Vehicle and Ashish asked him to purchase REVA Vehicle but Abhijeet asked him to purchase SUV and on this issue an argument taken place between Ashish and Abhijeet. The witness has also denied the suggestion that St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 34 after hearing the noise, Jai and Bharat who had already gone to the room of Bharat had again came back to the room of Vijay and thereafter they tried to make Abhijeet and Ashish understand but they started their argument in a loud noise and after hearing their noise and abuses, Nitin and others also came near their room. He has further denied that Ashish and Abhijeet were ready to quarrel (Jhagde Par Utaru Ho Gae) and they all separated them and thereafter, they confined Abhijeet and Ranjeet in the room and came down in the gali. He has further denied that after sometime Ashish had gone to the house of his friend in the Christian Colony and they were present in the gali and after some time Ashish came back to them. He has also denied that when he alongwith Jai, Nitin, Rohit, Ashish and Bharat were standing in the gali, Abhijeet was crying loudly and thereafter, Jai had opened the door of the house of Vijay from the outside and Abhijeet came down while concealing a dumble with the intent to kill Ashish but in the meantime, Jai had snatched the dumble form the hand of Abhijeet and thereafter, the dumble was kept in the room of Vijay as the dumble belonged to Vijay. Witness has denied that Abhijeet after putting his hand on the shoulder of Ashish said that they would talk after going outside (Ashish Ke Kandhe Par Hath Rakh Kar Kehne Laga Ki Chal Bahar Chal Kar Baat Karte Hain) and they asked them not to quarrel again and thereafter, Abhijeet went outside the colony with Ashish whereas he alongwith Nitin, Rohit, Bharat and Jai remained in the gali. The witness has also denied that after some time St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 35 Rohit said if any quarrel would taken place between them and he went outside the colony to search them and thereafter Nitin, Jai and Bharat had also went behind him and he had gone to his room as he was heavily drunk. According to the witness, he came to know that murder of Ashish had been taken place at about 3:00/3:30 PM when Police had come to him and he was under the influence of the liquor. Witness denied the suggestion that he came to know later on from Bharat, Nitin, Jai or Rohit that Abhijeet had killed Ashish; that Abhijeet had come to his room in the evening and was having his blue colour pitthu bag containing his goods which he handed over to the Police on 27.02.2012 and on checking, it was found to contain the driving licence of Abhijeet, two SIM cards (One of TATA and other was of VODAFONE), 10 Photographs of Abhijeet, One Memory Card of 2GB, one Mobile Phone, Make NOKIA, Black Colour, One SIM of UNINOR, One Card Holder of black colour, Seven Visiting Cards by the name of Abhijeet Raj, One TITAN Wrist Watch and one Metro Train Smart Card, One Health Fitness Slip, One Small Knife, Two Pens, One Gogals case, coins of Rs. 1/, One Gamcha with Strips, one Nokia Phone Charger, One Black Colour Diary on the first page of which Abhijeet Raj was written in English, it was a Spiral Diary, in which with red pen '20 ways to kill with your bare hand' was written. However, when confronted with his statement Mark A the above facts were found so recorded. The witness has however, admitted that seizure memo of bag which is Ex.PW22/A bear his signature at point 'A'. He has denied St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 36 the suggestion that he had been won over by the accused and his family and he was deposing falsely to save him.
(32) In his cross examination by the Ld. Defence Counsel, the witness has deposed that there were one or two street lights but he does not remember exactly as he was drunk.
(33) PW27 Nitin Kumar has deposed that he is a student of B.Sc. Final Year and studying in Hans Raj College, Delhi University. According to the witness, in the year 2012 he was residing at B47, Room No. 14, Christian Colony, Delhi University, Delhi - 110007 and on 26.02.2012 he came to his room from Central Library, Delhi University at about 10:30 PM. The witness has also deposed that after taking his dinner, he was coming down to ground floor and from Room No.6 where Vijay used to reside, he heard some noise on which he went inside the room and saw Khir Sagar Patel, Abhijeet, Ashish, Rohit, Bharat and Jai drinking alcohol. He has further deposed that he told Sagar that there was a loud noise. The witness has testified that they had completed the drinks and he alongwith Bharat, Abhijeet, Ashish, Rohit and Sagar came out from the room and Jai was also accompanying them but near the stairs he told them that he had to returned back to the room for sleeping after which all of them went towards the gate of colony. According to him, in the meanwhile Ashish received a telephonic call on his mobile and he told Rohit that he would come back within 1520 minutes. He has testified that near the gate of the colony, he (witness) took cup of tea and St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 37 started talking with Bharat. He has also deposed that Abhijeet told them that Vijay was not with them as he had gone to Laxmi Nagar. The witness has further deposed that Sagar told them that he had to attend his office the next day so he left to his room in Christian Colony for sleeping and Rohit told them that he was going to see Ashish as he wanted the key of vehicle. He has also deposed that he alongwith Bharat remained present at the gate of colony and after some time Rohit returned back as as he did not meet Ashish. He has testified that from the Nala side towards the gate of colony, they saw one person coming who told them that just ahead of Temple, one person was lying on which he alongwith Ashish and Rohit went towards the Temple and saw that Ashish was lying just ahead of Temple and blood was oozing out from his eyes and back side of the head. The witness has also deposed that Rohit took out the keys of vehicle from the pocket of Ashish and went to fetch the vehicle which was parked in front of Maurice Nagar, Police Station and he brought the vehicle. According to the witness, they checked the body of Ashish and found that he was still breathing. He has also testified that Rohit reached at the spot with the vehicle and thereafter, he with the help of Bharat and Rohit lifted Ashish from the ground and removed him to Hindu Rao Hospital in the Ascent Car of Ashish which was being driven by Rohit. The witness has further testified that in the Casualty at Hindu Rao Hospital, Ashish was medically examined by the Doctors and was declared dead. He has further deposed that police inquired from him and St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 38 he narrated the whole story but police did not record his statement. (34) This witness was declared hostile by the prosecution and in his crossexamination by the Ld. Addl. PP for the State, the witness has deposed that he knew the accused Abhijeet, whom the witness has correctly identified in the Court, as he used to come in the room of Vijay. According to the witness, he had not stated in his statement Mark 'A' to the Police that he heard a loud noise from the room of Abhijeet and Vijay and one person namely Jai opened the door from the outside and saw Abhijeet coming out from the room of Vijay who was having a dumble in his hands and came near the stairs with the intention to kill Ashish and started abusing Ashish and thereafter, Jai came from behind and snatched the dumble from the hands of Abhijeet. However, when confronted with his statement Mark 'A' where it is so recorded. Witness has denied the suggestion that Jai again kept the dumble in the room of Vijay and came down and thereafter, Abhijeet put the hands on the shoulder of Ashish and they all told him not to quarrel further. He has further denied the suggestion that after sometime, Abhijeet came from the side of Ganda Nala, Vijay Nagar towards them and told to him and Bharat that he had killed Ashish and at that time clothes and hands of Abhijeet was in blood stains; which facts he had told to Rohit that Abhijeet told them that he had killed Ashish. Witness has further denied the suggestion that Abhijeet had committed the murder of Ashish. When confronted with his statement Mark A the aforesaid facts were found so recorded. He has St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 39 denied the suggestion that being the friend of Abhijeet he was deposing falsely in order to save accused Abhijeet from Legal Punishment. He has denied that the accused Abhijeet had a quarrel with Ashish prior to his death. He has also denied the suggestion that accused Abhijeet confessed before them that he had committed the murder of Ashish near Hanuman Mandir, Vijay Nagar.
(35) In his cross examination by Ld. Counsel for the accused the witness has admitted that all the persons namely Ashish, Rohit, Khir Sagar Patel, Jai Mishra, Bharat and accused were in drunken state. According to the witness, there was no street light where all of them were standing when they came down from the room of Vijay. He has further deposed that he was kept in Police Station - Mukharjee Nagar for four days and for four days they were confined in Police Station and has voluntarily explained that he had also missed his exam due to this illegal detention. According to the witness, he only had acquaintance with the accused and he was not in friendship with the accused. He has testified that they had signed several blank papers in Police Station. (36) PW31 Bharat Jee has deposed that in the year 2012 he was a student of BA 1st Year of Ramjas College and on 26.2.2012 he was present in his room at B47, Christian Colony, Patel Chest, Delhi. According to the witness, his senior Sagar had purchased a new mobile phone of Apple and had arrange a party for purchase of the new mobile phone. He has testified that he, Sagar and Abhijeet (whom the witness St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 40 has correctly identified from the dossier) and Jai had joined the party arranged by Sagar. The witness has further deposed that they all were taking drinks in the party and after some time one Rohit Negi and Ashish (since deceased) came in the room. He has also deposed that when Ashish entered the room he was having liquor with him and they had already consuming and thereafter Ashish and Rohit also started consuming liquor. The witness has further deposed that they had almost consumed the liquor and they were gossiping with each other when after sometime Nitin came and complained as to why they were gossiping in a loud tone as he was getting disturbed, after which they all went downstairs from the rooms of the hostel. He has also deposed that Jai asked him (witness) to handed over the key of the room in which they were consuming the liquor pursuant to which he handed over the key of the room to Jai who went upstairs and they came near the gate of Christian Colony of Patel Chest, Delhi. The witness has testified that they started talking with each other and Ashish made a telephone call to some of his friends and told them that he would join them after meeting his friend to whom he was talking on the phone after which Ashish left. According to him, after sometime they started talking with each other and Sagar asked that on the next day he had to join his duty so by saying this he left their company and went for sleeping in his room when it was around 11:0011:30 AM and then accused Abhijeet also left as Vijay the friend of Abhijeet was not there. The witness has also deposed that St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 41 thereafter he, Nitin and Rohit again started talking with each other when Rohit told them that he wanted to go home and also told them that he knew as to where Ashish had gone. He has further deposed that thereafter he and Nitin went for taking tea when in the meanwhile Rohit also came and they started talking with each other when some unknown person came there and told them that some person was lying in the injured condition near Nala on which he, Rohit and Nitin went there and saw that Ashish was lying in an injured condition. He has also testified that they took Ashish in Hindu Rao Hospital in the car of Ashish which was brought by Rohit subsequently where doctor declared him brought dead.
(37) Leading questions were put by the Ld. Addl. PP for the State to the witness who has admitted that they were consuming liquor in the room of Vijay and he had already gone in a marriage at Ghaziabad. According to him, Jai did not refuse to consume liquor and also did not take the key of his room and did not go in his room. (38) The witness has crossexamined by the Ld. Addl. PP for the State wherein he has deposed that his statement was not recorded by the police. Statement Ex.PW31/PX1 was read over to the witness after which he has denied that when Jai entered in the room Sagar offered him liquor but he refused or that Jai took the key of his room and went in his (witness's) room. He has admitted that when Rohit came to the room of Vijay and they offered him whiskey, he refused to drink on the pretext St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 42 that he is fond of Rum but not Whiskey. He has also admitted that Ashish who had come with Rohit was having a bottle of Rum. He has denied the suggestion that after consuming the liquor accused Abhijeet (deceased) starting abusing each other and started hot arguments on which Nitin and some boys of the building came downstairs and Abhijeet and Ashish were separated. He has also denied the suggestion that Ranjit took Abhijeet in their room or that after some time Ashish came there and Abhjeet started shouting loudly on Ashish; that Jai went upstairs and opened the room of Abhijeet after which Abhijeet came downstairs from his room who was hiding a dumble on his side with the intention to kill Ashish and started abusing Ashish but Jai saw the dumble and took the same in the room of Vijay. The witness has also denied the suggestion that thereafter Abhijeet put the hands on the shoulders of Ashish and told him to go by a side and have a talk and they would not quarrel. He has also denied that accused Abhijeet took Ashish towards the gate of Christian Colony or that when he, Jai and Nitin were standing towards ganda Nala, accused Abhijeet came while running and told that he had committed the murder of Ashish or that they had noticed the blood stains on the clothes of Abhijeet. He has admitted that Ex.PW5/B which is sketch of dumble which was produced by Vijay Kumar to the Investigating Officer during investigations. He has also admitted that the said dumble was converted into a pullanda and was taken into possession vide memo Ex.PW5/A. The witness has denied the suggestion that he intentionally concealing the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 43 material facts since accused was his senior during the period of incident or that he has been won over by the accused and he was threatened by the family members of the accused not to depose on the material aspect of involvement of accused Abhijeet in the commission of the actual offence. (39) In his crossexamination by the Ld. Defence Counsel the witness has deposed that Jai had consumed liquor on 26.6.2012. According to the witness he (Jai) had friendship with Rohit Negi and Ashish and they knew each other fairly well. He has also deposed that after this incident he was called in the Police Station and detained for three four days and police also took his signatures on blank papers. Witnesses of Medical Record:
(40) PW12 Dr. Dharmraj he deposed that on 27.02.2012 he was posted as Casualty Medical Officer at Hindu Rao Hospital and on that night at about 1.00 AM Ashish Kumar Sharma S/o B.B. Sharma, Age 28 years was brought to the hospital by Rohit and Nitin with alleged history of physical assault. According to the witness, he medically examined the patient but BP was not recordable and heart sound was absent on which he declared the patient as 'brought dead' and the body was shifted to mortuary. He has proved the MLC No. 1108/12 which is Ex.PW12/A. He has also deposed that during the personal search of deceased, Rs.2,470/, two mobile phones, one watch, one chain, four ATMs and one driving license and one driving license and same were St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 44 handed over to Duty Constable. This witness has not been cross examined by the Ld. Defence Counsel despite an opportunity in this regard.
(41) PW13 Dr. Abhishek Pachauri has proved the postmortem report no. HRH/18/12 dated 27.02.12 is in the handwriting of Dr. C.B. Dabas which is Ex.PW13/A bearing signatures of Dr. C.B. Dabas at point A. According to the witness, Dr. C.B. Dabas conducted postmortem on the dead body of Ashish Kumar Sharma S/o Brij Bhushan Sharma, male 26 years, on 27.02.2012 at about 2.00 PM on the request of PSI Pawan Kumar of Police Station Mukherjee Nagar in case FIR No.66/12. He has testified that according to postmortem report, Dr. C.B. Dabas found following external injuries on the body of deceased Ashish Kumar Sharma:
1. Abrasion 2.5x2 cm over left forehead.
2. Incised wound 2.3x0.5cm over left upper eyelid with associated swelling horizontally placed penetrating upto a depth of 1.2 cm in upward direction.
3. Incised wound of 1.2x0.2cm over left cheek horizontally placed.
4. Scratch abrasion 6.5cm over left cheek extending upto chin.
5. Incised wound 1.5x0.2cm over left side of chin near lower angle with scratch abrasion 4.5cm extending horizontally from its outer angle.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 45
6. Incised wound 1.2x0.1cm under chin infront of neck just above thyroid cartilage in mid line horizontally placed.
7. Incised wound 1.5x0.2cm over left side front of neck 4cm outer to mid line horizontally placed.
8. Incised wound 0.5x0.2cm over left side of neck just above injury no. 7.
9. Incised wound 1.5x1cm back of right shoulder 10cm inner to tip of right shoulder.
10.Abrasion measuring 1.5x1.5cm back of right shoulder 0.3cm inner to tip of right shoulder.
11.Abrasion in area of 0.4x0.1cm over back of right ring finger over knuckle.
12.Superficial Incised wound 1.4x0.2cm over back of left wrist.
13.Incised wound 1x0.3cm over right side back of chest obliquely placed scapular region 4cm outer to mid line.
14.Incised wound 0.9x0.4cm over back of chest near mid line 3cm below hairline.
15.Incised wound 1x0.5cm x? Depth located on right side of abdomen in lumbar region slightly posteriorly 14cm outer to mid line and located at a height of 120cm above right heel obliquely placed with upper inner angle being acute and lower outer angle is being round edged are clean cut.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 46 (42) The witness has also deposed that on internal examination following injuries were found: Peritoneal cavity contains about one litre of blood clots of blood and intestine shows multiple cuts at various sides in ileal region with blood clots over them and in kidney a effusion of blood in the perirenal tissue of right kidney with cuts over it. Left kidney was intact. Liver and spleen were found intact but pale.
(43) According to the witness, the track of injury is that Injury no. 13 has penetrated its muscle of back of chest upto a depth of 3cm in downward directions; Injury no. 14 has penetrated into neck and chest muscles and tissues upto a depth of 2cm in downward direction; Injury no.15 has penetrated into abdominal cavity and perforated through peri renal tissue on back of right kidney near upper pole and then cut through loops of small intestine and its mesentary and ended near right side of spinal muscle in mid line at level L2L3 vertibra, in abdominal cavity. Total length of track is 6.5cm direction from right to left and downwards. There is effusion of blood alongwith track of the injury with blood clots at sides of cuts in small intestine.
(44) According to the postmortem report, Dr. C.B. Dabas gave his opinion that the cause of death in this case was due to shock and haemorhage consequent to injuries, all the injuries except injury no. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 47 1, 10 and 11 have been caused by sharp edged weapon and injury no. 1,10 and 11 have been caused by blunt force impact with a hard surface/ object, all the injuries were antemortem and recent, Injury no. 15 is individually sufficient to cause death in ordinary course of nature and time since death was approximately 13 to 15 hours. (45) He has further deposed that after postmortem, doctor handed over the clothes of deceased, blood sample on gauze piece and viscera of deceased handed over to Investigating Officer in sealed condition with sample seal. The witness has further proved the subsequent opinion dated 30.04.12 which is Ex.PW13/B according to which Dr. C.B. Dabas received the application from Investigating Officer inspector RS Meena for subsequent opinion with a sealed parcel containing the alleged weapon of offence and the sealed pullanda was found with the seal of HK and according to this opinion, Dr. C.B. Dabas prepared the diagrammatic sketch of the weapon of offence which was found in sealed pullanda vide Ex.PW13/C bearing the signatures of Dr. CB Dabas at point A. He has also proved that Dr. C.B. Dabas gave his opinion that the all the injuries except injury no.1, 10 and 11 could have been caused by sharp edged weapon like the one examined by him. After examination of weapon of offence, Dr. C.B. Dabas again sealed the weapon of offence with the seal of FMHRH and handed over to the Investigating Officer with sample seal.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 48 (46) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he was not involved either in the conduct of the postmortem or examination of the alleged weapon of offence i.e. knife and has voluntarily explained that he has deposed on the basis of the official record. Witness has further deposed that the blunt injuries as noticed herein above in the postmortem examination report could be possible by a fall on the irregular surface. He has denied the suggestion that the injury no. 2 to 9 could be possible on fall on a surface and has voluntarily explained that the injuries are on different parts and are of different nature and dimensions and therefore are not possible on account of a fall. He has also deposed that there was no internal injury on liver and spleen and has voluntarily explained that there was a cut injury to the right kidney.
Forensic Experts:
(47) PW23 Sh. M.L. Meena, Sr. Scientific Officer, FSL Rohini has deposed that on 8.5.2012 the exhibits of this case were received at FSL Rohini in duly sealed condition and were marked to him for examination. The witness has proved that he examined the exhibits and gave his detailed report in this regard which is Ex.PW23/A according to which no common poison could be detected in any of the exhibits. This witness has not been cross examined by the Defence Counsel despite being granted an opportunity in this regard.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 49
(48) PW24 Manoj Kumar Laboratory Assistant from FSL Rohini has proved the Biological Analysis Report dated 27.2.2013 given by Ms. Imrana, Sr. Scientific Officer (Biology) which is Ex.PW24/A (running into two pages) according to which blood was detected in Ex.1 (cotton wool swab), 2 (exhibit kept in plastic container), 3a (two coins), 3b (blade), 4 (blood sample), 5a (one pant), 5b (one shirt), 5c (baniyan), 5d (dirty underwear), 7a (another shirt) 7b (newspaper). He has also proved the Serological Report dt. 27.2.2013 prepared by Ms. Imrana, Sr. Scientific Officer (Biology) which is Ex.PW24/B (running into one page) according to which the blood group of deceased is 'A group' and the baniyan Ex.5c and shirt Ex.5a are found to have blood of 'A group' and all the above exhibits have blood of human origin on the same.
(49) In his cross examination by the Ld. Defence Counsel the witness has deposed that he had not examined the exhibits personally nor he had given the report and has voluntarily explained that he only assists the examiner in the laboratory.
(50) PW26 Naresh Kumar has proved the Biological and Serological Reports Ex.PW24/A and Ex.PW24/B prepared by Ms. Imrana which reports have already been proved by PW24 Manoj Kumar.
Police/ Official witnesses:
(51) PW2 HC Kailash is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW2/1 wherein he St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 50 has proved the entry in Register No.19 vide S.No. 2644 copy of which is Ex.PW2/A (running into six pages); entry in register no. 21 vide RC No. 17/21/12 copy of which is Ex.PW2/B; RC No. 19/21/12 copy of which is Ex.PW2/C; RC No. 20/21/12 copy of which is Ex.PW2/D; RC No. 23/21/12 copy of which is Ex.PW2/E; entry in register No. 19 vide entry No. 2719 copy of which is Ex.PW2/F (running into two pages); entry No. 3009 copy of which is Ex.PW2/G; copy of receipt of FSL which is Ex.PW2/H; copy of receipt of FSL which is Ex.PW2/I; copy of RC No. 22/21/12 which is Ex.PW2/J; receipt of FSL vide No. FSL/2012/C3067 dated 08.05.2012 copy of which is Ex.PW2/K; FSL receipt No. FSL2012/B3070 dated 08.05.2012 copy of which is Ex.PW2/L. (52) In his cross examination by the Ld. Defence Counsel, witness has denied the suggestion that all the above entries in register No. 19 have been fabricated and manipulated ante datedly on the directions of the senior officers. Witness has further deposed that the parcels which were initially sent to the FSL Rohini had been returned back with the objections which objections are mentioned on Ex.PW2/H and Ex.PW2/I. Witness denied the suggestion that the parcels had been manipulated by the Investigating Officer with his connivance.
(53) PW3 HC Raj Kumar is a formal witness being the Duty Constable at Hindu Rao Hospital who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 51 Cr.P.C.) wherein he has proved the DD No. 12 A copy of which is Ex.PW3/A and seizure memo of the articles of deceased which is Ex.PW3/B. (54) In his cross examination, the witness has deposed that he only noticed two persons i.e. Nitin and Rohit with injured Ashish who was declared brought dead and both the friends Rohit and Nitin were saying that Ashish was injured in the physical assault/jhagra but they did not disclose the name of the person who had assaulted him. According to the witness, both the friends remained in the hospital till the time he was in the Casualty, after he was declared dead and body was shifted to the mortuary they went away. He has also deposed that by the time the body was shifted in the mortuary SI Hemant from the local police had come but SI Hemant did not record statement of any person in his presence.
(55) PW4 Ct. Sandeep Kumar is also a formal witness being the Special Messenger he deposed that he tendered his examination in chief by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having delivered the copy of FIR/ Special Reports to the senior officers.
(56) In his cross examination by the Ld. Defence Counsel the witness has deposed that he went alone on a motorcycle to deliver the copies of the FIR and he made his departure while leaving the Police Station vide DD No. 16A.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 52 (57) PW5 SI Sushil Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 8.5.2012 he received seven parcels vide RC No. 22/21/12 and RC No. 23/21/12 copies of which are Ex.PW2/J and Ex.PW2/E respectively and deposited the same in the FSL vide receipt which is Ex.PW2/K and Ex.PW2/L respectively. He has further proved that on 26.5.2012 the Investigating officer recorded the statement of Vijay S/o Ashok Kumar and Bharat S/o Mudrika Prashad and Vikay Kumar produced a green colour dumble which was seized by the Investigating Officer vide memo Ex.PW5/A. He has further deposed that the Investigating Officer prepared the sketch of the dumble which is Ex.PW5/B before sealing and seizing the same. (58) He has correctly identified the dumble of green color (partly rusted) with the words 16 written on it which Dumble is Ex.P1. (59) In his cross examination by the Ld. Defence Counsel the witness has denied the suggestion that the dumble was not seized in his presence on 26.05.2012. According to the witness the dumble had been produced in the Police Station. He has further deposed that Vijay had come to the police station at about 2:003:00 PM and produced the dumble. According to him, the dumble Ex.P1 is an item which is easily available in the market and except for the fact that '16' was written on the dumble there was no specific identification mark on the dumble. Witness St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 53 deposed that he did not notice any blood stains or any other stains on it. He has denied the suggestion that no statement was made by Vijay and Bharat or that the Investigating Officer recorded the same of his own only to work out the present case.
(60) PW6 Ct. Anil Kumar is a formal witness being the PCR Official who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the PCR form which is Ex.PW6/A. Witness has not been cross examined by the Defence Counsel despite being granted an opportunity in this regard. (61) PW7 Inspector Mahesh Kumar is a formal witness being the draftsman who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the scaled site plan which is Ex.PW7/A. (62) In his cross examination by the Ld. Defence Counsel the witness has deposed that he prepared the scaled site plan at the instance and on the pointing out of Inspector R.S. Meena. Witness has further deposed that he did not prepare the original scaled site plan at the spot and has voluntarily deposed that he only took rough notes. He has also deposed that he did not hand over the rough notes to the Investigating Officer nor the same are present on the Judicial record and has voluntarily explained that he have destroyed the same. Witness denied the suggestion that the scaled site plan is not correct as per the site. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 54 (63) PW8 SI Sanjeev Kumar is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the Crime Team Report which is Ex.PW8/A. (64) In his cross examination by the Ld. Defence Counsel the witness has deposed that he reached the spot at around 3:30 AM and SI Hemant was present at the spot along with twothree other persons but there were no public persons. According to the witness, he left the spot around 4:15 AM. He has further deposed that when he left the spot, he had prepared his report and handed over the same to SI Hemant. The witness has also deposed that only one pair of chappals and two coins one of Rs.1 and one of Rs.2 and one half blade and also blood were lying scattered at the spot. According to the witness, he did not notice any dumble lying there at the spot. Witness denied the suggestion that he prepared the report on the asking of the local police. (65) PW9 HC Arvind Kumar is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the copy of FIR No. 66/12 copy of which is Ex.PW9/A and his endorsement on rukka which is Ex.PW9/B. (66) In his cross examination by the Ld. Defence Counsel the witness deposed that he was on duty from 1:00 AM to 9:00 AM. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 55 According to the witness, PSI Pawan Kumar had come to him at around 6:15 AM when he made the entry in the DD register and it took him about one hour to formally record the FIR. Witness has denied the suggestion that the FIR has been ante dated, ante timed and fabricated on the directions of the senior officers.
(67) PW10 HC Sudhir Kumar is also a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the scene of crime and having taken the photographs which are Ex.PW10/A1 to Ex.PW10/A9 negatives of are collectively Ex.PW10/B. (68) In his cross examination by the Ld. Defence Counsel the witness has deposed that he had taken the photographs with still camera issued to him by the department. Witness has denied the suggestion that he took the photographs after manipulation of the scene of crime by the Investigating Officer.
(69) PW11 Ct. Narpal is a formal witness who has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 6.3.2012 accused Abhijeet Raj who was in Police Custody pointed out the place of occurrence vide pointing out memo Ex.PW11/A. He has further proved that on 30.4.2012 he took one parcel from the MHCM vide RC No. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 56 17/21/12 copy of which is Ex.PW2/B and deposited the same with the FSL Rohini. According to the witness on 4.5.2012 he received one viscera box and seven parcels from the MHCM vide RC No.19/21/12 and RC No. 20/21/12 copy of which are Ex.PW2/C and Ex.PW2/D which he deposited with the FSL Rohini.
(70) In his cross examination by the Ld. Defence Counsel the witness has deposed that he joined the investigations in the present case at about 45 PM and at that time accused Abhijeet Raj was in the lock up of the Police Station. He does not recollect the time when Abhijeet Raj was removed from the lock up. According to the witness, they reached the Hanuman Mandir between 45 PM but he does not recollect the exact time. He has further deposed that no public persons gathered near the Hanuman Mandir when they reached there and the Investigating Officer did not join any public person in the investigations when the accused Abhijeet Raj allegedly pointed out the place of occurrence. Witness denied the suggestion that he was unable to give the exact time because they had never gone to the spot. He has testified that the Hanuman temple is hardly 34 yards from the spot as pointed out by the accused. Witness denied the suggestion that the accused Abhijeet Raj did not point out any place of occurrence or that the pointing out memo was prepared by the Investigating Officer of his own or that he merely signed the same at his instance.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 57 (71) PW17 SI Sanjay Tomar has deposed that on 27.02.2012 he was posted at Police Station Mukherjee Nagar as Sub Inspector and on that day, he had joined the investigation with inspector Mukesh Kumar and after taking outstation permission, he alongwith Ct. Deepak, Ct. Avdesh and HC Santosh had gone to Motihari Bihar where the accused Abhijeet was a permanent resident. According to the witness, they had gone there in search of the accused Abhijeet who was absconding and they reached Motihari Bihar on 28.02.2012 and made their entry with the local police. He has also deposed that thereafter they went to his house at Motihari and one or two places where he was expected to be found but he could not be found. The witness has further deposed that while they were still searching for him at Motihari, on 03.03.2012 the accused Abhijeet was produced at Motihari Town Police Station by his father. He has testified that they interrogated Abhijeet Raj after which the accused Abhijeet Raj was arrested vide memo Ex.PW17/A, his personal search was conducted vide memo Ex.PW17/B and the information regarding the arrest of accused Abhijeet Raj was given to his father and his signatures were taken on Ex.PW17/A. According to the witness, he then got conducted medical examination of accused persons from Motihari Town and produced him before the Court of Ld. CJM Motihari Town, Bihar and obtained three days transit remand after which the accused was brought to Delhi by train on 05.03.2012 and was brought to Police Station Mukherjee Nagar and handed over to the Investigating Officer who then St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 58 interrogated him at length and recorded his disclosure statement Ex.PW17/C. He has also deposed that the accused was thereafter produced before Duty Magistrate at his residence and got remanded to one day Judicial Custody.
(72) In his cross examination by the Ld. Defence Counsel, the witness has admitted that he did not record any disclosure statement of the accused at Motihari, Bihar. He has denied the suggestion that the accused Abhijeet Raj did not make any disclosure statement to inspector Mukesh Kumar. He has further admitted that Ex.PW17/C does not bear the signatures of any public person. He has denied the suggestion that the disclosure statement Ex.PW17/C was recorded by Inspector Mukesh of his own and he merely signed the same on his asking. Witness has denied the suggestion that he did not join any investigation with inspector Mukesh on return to Delhi or that the accused Abhijeet Raj has been falsely implicated in the present case at the instance of family of deceased.
(73) PW18 HC Santosh Kumar has corroborated the testimony of SI Sanjay Tomar (PW17) regarding the apprehension and arrest of the accused Abhijjet Raj from Motihari Bihar. He has proved the arrest memo of the accused Abhijeet Raj which is Ex.PW17/A and his personal search memo which is Ex.PW17/B. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 59 (74) In his cross examination by the Ld. Defence Counsel the witness deposed that he did not make any separate Rawangi while leaving Delhi and has voluntarily explained that Investigating Officer must have made it. He has testified that there is no separate entry made by him at Motihari Town Police Station. Witness deposed that neither SI Sanjay Tomar nor Investigating Officer recorded disclosure statement of the accused in his presence. He has also deposed that the family of accused Abhijeet Raj cooperated in the investigations of the case and it was his father who had produced him before SI Sanjay Tomar at Police Station Motihari Town.
(75) PW19 SI Ranbir Singh has deposed that on 07.03.2012 he had joined the investigations in the present case alongwith Inspector Mukesh Kumar, Ct. Chander Shekhar, Ct. Mukesh and Lady Ct. Sunita. According to the witness, the accused Abhijeet Raj who was in police custody remand, was taken out of the lockup at about 5.00 AM and they all went to Agra in a private vehicle i.e. Innova Taxi. He has also deposed that the accused led them to Tundla Road which is about 15 km ahead of Agra and then led them to fields near Kalpana Hotel, which is situated on the main highway i.e. NH2. According to him, the accused then led them to wheat fields and from the corner of the field, he picked up a white polythene and handed over the same to Inspector Mukesh Kumar informing him that it contained the knife with which he had committed the offence. He has testified that Inspector Mukesh opened St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 60 the said polythene and it was found containing a knife with a small blade and a black colour handle. According to the witness, Inspector Mukesh prepared the sketch of the knife which is Ex.PW19/A and on measuring the knife it was found having total length of 22.5 cm with blade of 10 cm, handle of 12.5 cm and maximum width of 0.7 cm and there were three ripid marks on the handle and some stains on the blade which appeared to be blood stained. He has proved that Inspector Mukesh converted the same into a pullanda with the help of same polythene after which it was put in plastic container and wrapped in a white cloth and sealed with seal of HK which seal after use was handed over to him and the knife was seized vide memo Ex.PW19/B. He has also deposed that when the accused was asked to inform where were his clothes which he was wearing on the date of incident, the accused disclosed that while he was traveling towards Tundla in a bus, he had thrown the said clothes from moving bus on the way by putting the same in a polythene. According to him, thereafter the accused led them to various places on the road going towards Tundla but the said clothes could not be found. He has also deposed that at about 5.00 PM they started back towards Delhi and after reaching Delhi, medical examination of the accused was got conducted and thereafter put him in the lockup. He has also deposed that the Investigating Officer then recorded his statement and relieved him. (76) The witness has correctly identified the accused Abhijeet Raj in the Court and the case property i.e. the knife got recovered by the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 61 accused from the fields on the road to Tundla, which knife is Ex.P6. It has been observed by this Court that the blade is found to contain some dark brown stains and which have been duly marked with a spot pen by the FSL.
(77) In his cross examination by the Ld. Defence Counsel the witness has deposed that he did not make any separate departure entry while leaving Delhi. He is not aware who made the payment for the Innova Car. He has further deposed that Inspector Mukesh told him that he had made the departure entry that they were leaving for Agra in Innova Car but he did not see the entry personally nor he can confirm whether the details had been mentioned or not. He has testified that when they started from Police Station they were aware that accused was leading them for purposes of recovery of weapon of offence and clothes and in his presence Investigating Officer did not ask any public person to accompany them to Agra. According to him, when they reached at the fields near Kalpana Hotel, the Investigating Officer had asked some passersbye's who were using the hotel to join the investigation in this case but they refused to join. He has also deposed that in his presence Investigating Officer did not ask the owner or other employees of the hotel to join the investigation and the Investigating Officer did not give notice to the persons who refused to join the investigation. Witness has denied the suggestion that no public persons were joined deliberately because the accused had not got any recovery of knife made nor he led St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 62 them to any fields. He has admitted that the signatures of Ct. Chandershekhar, Ct. Mukesh and LCt. Sunita are not present on any of the documents prepared by Investigating Officer. The witness has also deposed that the Investigating Officer Inspector Mukesh did not make any entry with local police either at Agra or on the way at Tundla nor any persons from local police were joined in the investigations. He has denied the suggestion that they did not go to Agra/Tundla as claimed by him or that no recovery of knife was got made by the accused. Witness has also denied the suggestion that the knife Ex.P6 has been planted upon the accused to connect him with the case or that all documents were prepared while sitting at the Police Station or that he merely signed the same on asking by senior officers.
(78) PW25 SI Hemant Kumar has deposed that on 27.02.2012 he was posted at Police Station Mukherjee Nagar and on that day he was on Emergency Duty from 8 PM to 8AM and on that day at about 12:45 AM (midnight) he received DD No. 7A which is Ex.PW25/A regarding stabbing of one boy on which he along with PSI Pawan Kumar reached at the spot i.e. near Hanuman Mandir, Vijay Nagar at around 1:00 AM. The witness has further deposed that on the one side of the road they found blood scattered, two coins of one and two rupees smeared with blood, half blade with words Laser Altera written on the same and he also noticed a pair of chappals lying a little ahead of the blood of light yellow color. According to the witness, he also tried to search for the eye St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 63 witnesses/ injured in the area but could not find anybody and at about 1:45 AM he received DD No.12A which is Ex.PW3/A which was regarding an information from Hindu Rao Hospital regarding any injured being brought dead. He has also deposed that thereafter he left PSI Pawan for preserving the spot of the incident and reached at HRH where he reached at around 2:00 AM and obtained the MLC No. 1108 of injured Ashish on which the doctor had declared him brought dead which MLC is Ex.PW12/A. He has testified that the deceased had already been shifted in the mortuary by that time after which he then went to the mortuary where he inspected the body and found injuries on the left eye of the injured. The witness has also deposed that he filled up Form No. 25.35 and then met the complainant Rohit in the hospital and recorded his statement which is Ex.PW16/A and returned to the spot at around 3 AM and made a call to the Crime Team through Duty Officer. According to him, in the hospital HC Raj Kumar handed over to him the belongings/ personal search of the deceased to him and he seized the same vide memo Ex.PW3/B. He has also deposed that at around 3:30 AM the Crime Team reached the spot and inspected the scene of crime and gave its report. He has further deposed that after the Crime Team left the spot he lifted the exhibits from the spot i.e. blood with the help of cotton, blood stained concrete of the road, earth control, two blood stained coins, half blade and one pair of chappals. He has proved that all these exhibits were put into separate containers and he converted them into separate St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 64 pullandas with the help of cloth and dibbi and sealed the same with the seal of HK and seized vide seizure memo Ex.PW25/B. He has proved having prepared the rukka by making his endorsement on the statement of Rohit which is Ex.PW25/C which he handed over to PSI Pawan Kumar with the directions to take the same to the police station for getting the case registered. According to the witness, at about 7:30 AM PSI Pawan Kumar, SI Ranbir Singh and Inspector Mukesh Kumar came to the spot and handed over the exhibits and various documents prepared by him to Insp. Mukesh Kumar. He has also deposed that in the meanwhile Rohit also came to the spot and on his pointing out Insp. Mukesh Kumar prepared the site plan. According to him, at about 8:30 AM they all left the spot and he then went to the HRH hospital along with the Investigating Officer and was relieved. The witness has proved that on 08.05.2012 he along with Insp. R.S. Meena and SI Mahesh Draftsman went to the spot of the incident where the draftsman prepared scaled site plan and thereafter they returned to the police station. (79) Leading questions were put to the witness by the Ld. Addl. PP for the State on the aspect of postmortem conducted on the dead body of the deceased, wherein the witness has denied the suggestion that after he returned to the hospital on 27.02.2012 and handed over the exhibits and documents to the Investigating Officer and after the site plan was prepared the Investigating Officer also prepared the inquest documents and got conducted the postmortem on the body of the deceased and has St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 65 voluntarily explained that he had left the hospital as he was required to join the investigations in an another case of unnatural death. (80) The witness has correctly identified the case property i.e. one pair of chappals/slippers of off white/cream/dirty greyish color which were lifted by him from the spot, which is collectively Ex.P5; one plastic dibbi having two coins i.e. one coin of Re 1 and one coin of Rs 2 and one half piece of blade which were lifted by him from the spot which coins are collectively Ex.P7 and the half piece blade is Ex.P8. (81) In his cross examination by the Ld. Defence Counsel the witness has deposed that when first he reached the spot he only find blood but could not find any public person present there. Witness has further deposed that the spot of incident is a residential area and there are large number of hostels in the area where outstation students are house. He has denied the suggestion that at around 12:001:00 midnight large number of public persons who are students are found loitering in the area and has voluntarily explained that he did not find anybody. According to the witness, he did not call any public person from the residential lines when the photographs were taken by the crime team and when the exhibits were lifted from the spot. He has testified that he was on his private bike at that time and at the time when he received DD No. 12A he was not aware of the details of the deceased or the incident or if it was connected in any manner with the present case. He has also deposed that when he reached the hospital he had given the information to the SHO by his mobile St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 66 phone. He was not aware if the SHO was already informed about the deceased or whether he came to know through the information given by him. According to the witness, he did not give any information to the Duty Officer and has voluntarily added that he had already informed by the Duty Constable at HRH. The witness has testified that he send the message for the crime team after reaching the spot. He has also deposed that when he was receiving the MLC it was then that he met Rohit. According to the witness, he had searched for the person who had brought the deceased to the hospital when he found Rohit. He is unable to tell whether the name of Rohit finds a mention in the MLC of the deceased as the person who had brought him to the hospital. The witness has also deposed that he started recording the statement of Rohit at around 2:20 AM and it took him about 15 minutes to record his statement. Witness has further deposed that the MLC of Ashish also gives the name of Nitin as one of those person who had brought him to the hospital. He has also deposed that he did not try to search for Nitin in the hospital nor Nitin came to him. According to him, he did not find any boy by the name of Bharat or any other person along with Rohit in the hospital. He has denied the suggestion that he did not meet either Rohit or any body else in the hospital including Nitin or that he recorded the statement of Rohit of his own on the instructions of the senior officers to work out the present case only because his name finds a mention in the MLC of Ashish. Witness has also denied the suggestion that the FIR was St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 67 ante dated and ante timed only to work out the present case or that no exhibits were lifted at the spot as claimed by him or that the same has been planted only to connect the accused with the offence. (82) The witness has further deposed that from the statement of Rohit he came to know that they had brought the deceased to the hospital in their car but he did not seize the car nor he checked the same. He does not recollect if there were any blood on the clothes of Rohit and states that he did not seized the clothes of Rohit at any point of time. He has admitted that the chappals Ex.P5 are of cream/ off white color and not yellow. Witness has denied the suggestion that since the exhibits including the slippers were planted in the case at a later stage that is why he was unable to give the correct color of the same. He has also denied the suggestion that he had also met Nitin and Bharat in the hospital but he deliberately did not record their statements and also did not seized their clothes.
(83) PW28 Inspector R.S. Meena has deposed that on 26.03.2012 he was posted at Police Station Mukherjee Nagar as SHO. According to the witness, the Investigating Officer of the present case namely Inspector Mukesh Kumar had proceeded on Medical Leave due to which reason investigations of the present case was taken up by him. He has testified that on 27.03.2012 he had visited the police head quarters and obtained PCR form which is Ex.PW6/A. He has proved having recorded the statement of Ct. Anil who had filled the PCR form and relieved him. The St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 68 witness has also deposed that on 30.04.2012 he had taken the weapon of offence i.e. knife from MHC(M) and produced the same before Autopsy Surgeon HOD forensic Medicine HRH, Dr. C.B. Dabas for obtaining the subsequent opinion. According to the witness, he also moved an application before Dr. C.B. Dabas for giving the subsequent opinion which application is Ex.PW28/A pursuant to which doctor had kept the weapon of offence with him and told him to come on 01.05.2012. He has testified that on 01.05.2012 he obtained the subsequent opinion from Dr. C.B. Dabas which opinion is Ex.PW13/B and doctor also prepared the sketch of the knife which is Ex.PW13/C after which he returned back to the Police Station along with weapon of offence and subsequent opinion and deposited the weapon of offence i.e. knife with MHC(M). The witness has testified that on 04.05.2012 he send the exhibits of the present case through Ct. Narpal to the FSL Rohini but due to some clarification same were not deposited in the FSL and Ct. Narpal returned to the police station along with exhibits and deposited the exhibits with MHC(M) and recorded the statements of Ct. Narpal. He has also deposed that on 08.05.2012 after removing the objections he again send the exhibits of the present case to FSL Rohini through PSI Susheel who deposited the exhibits with FSL Rohini and handed over the FSL receipt with MHC(M) and recorded the statements of PSI Susheel and MHC(M). (84) The witness has testified that on the same day he called the draftsman SI Mahesh to the Police Station and he along with SI Mahesh, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 69 Draftsman and SI Hemant reached the spot of incident where at the instance of SI Hemant, SI Mahesh prepared the rough notes at the spot. He has also testified that thereafter they returned to the Police Station where he recorded the statements of SI Mahesh and SI Hemant. According to him, thereafter Inspector Mukesh Kumar joined the duties and he handed over the case file to him for further investigations. (85) In his cross examination by the Ld. Defence Counsel, the witness has denied the suggestion that the subsequent opinion on the weapon of offence was obtained by him from the doctor on his tutoring and insistence.
(86) PW29 SI Pawan Kumar has deposed that in the intervening night of 2627.02.2012, he was posted at Police Station Mukherjee Nagar and was on Emergency Duty along with SI Hemant. The witness has also deposed that on that day, at about 12:45 AM, he alongwith SI Hemant went to Hanuman Mandir, Vijay Nagar near Ganda Nala. He has testified that at the spot they saw some blood and no eye witness met them. According to him, on the spot, two coins of Rs.1/ and Rs.2/ and one half blade were found and one pair of slippers were lying near the spot. He has further deposed that after an hour, SI Hemant received a call on his mobile that the injured was declared dead at HRH. The witness has testified that he remained at the spot for the protection of the spot whereas SI Hemant went to Hindu Rao Hospital. He has further deposed that at about 3:00 AM, SI Hemant came back at the spot from the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 70 Hospital and called the Crime Team. He has also deposed that at about 3:30 AM, Crime Team reached at the spot and inspected the spot, took the photographs from different angles. He has proved that blood stained coins, half blade which were lying at the spot were lifted and kept in a plastic box and sealed with the seal of 'HK'. The witness has testified that blood was lifted with the help of cotton and kept in a small plastic box and sealed with the seal of 'HK', Rohini; earth control and blood earth control were lifted and kept in a small plastic box and sealed with the seal of 'HK'; pair of slippers were kept in a white colour cloth and converted into pullanda and sealed with the seal of 'HK' and all these articles were taken into possession vide seizure memos Ex.PW25/B. He has testified that SI Hemant prepared rukka and handed over to him for the registration of FIR accordingly, he went to the Police Station and got registered the case and came back at the spot alongwith Inspector Mukesh Kumar and SI Ranbir Singh as further investigation of this case was handed over to SI Mukesh Kumar. According to the witness, one witness Rohit met them at the spot and Investigating Officer prepared site plan at the instance of witness Rohit. He has also deposed that on the pointing out of Rohit, one Ascent Car No. DL8CJ1289 was seized from outside the Police Station vide seizure memo Ex.PW16/B. He has testified that in the said car, on the rear seat one yellow colour shirt and piece of paper which was having blood stains was also seized after converting into pullanda alongwith the vehicle. The witness has further deposed that on St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 71 the same day, Investigating Officer got conducted the postmortem on the dead body of deceased Ashish and after the postmortem dead body was handed over to Navdeep Sharma and Kuldeep Sharma, brothers of deceased vide receipt Ex.PW15/B. He has also deposed that in the Hospital the Doctor handed over sealed pullanda containing viscera, sample seal, blood sample with the seal of 'FM HRH' and clothes of the deceased and same were seized vide seizure memo Ex. PW29/A. The witness has testified that on the way back to Police Station from Hospital, they reached the Christian Colony from where Khir Sagar Patel produced one bag which belongs to accused Abhijeet and thereafter, the said bag was taken into possession vide seizure memo Ex.PW22/A. He has further deposed that thereafter they went to the Police Station where case property was deposited with the MHC(M) and his statement was recorded by the Investigating Officer.
(87) The witness has correctly identified the case property i.e. one pair of chappals/ slippers of off white/ cream/ dirty greyish colour which were lifted from the spot, which are Ex.P5; one plastic dibbi having two coins i.e. one coin of Re. 1/ and one coin of Rs. 2/ and one half piece of blade which were lifted from the spot, the coins are collectively Ex.P7 and half piece of blade which is Ex.P8; one bag of 'Adidas' which was handed over by Khir Sagar Patel as belonging to the accused Abhijeet, which is Ex.P9.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 72 (88) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he did not make a separate rawangi on leaving the Police Station nor a separate wapsi thereafter. He has admitted that the spot of incident is a residential areas with large number of houses and being a part of the University area large number of persons are available at the road at that time. According to him, they did not find any public person when they reached there but SI Hemant made enquiries from few passerbyes who showed their ignorance about the incident. He has admitted that when he was left at the spot by SI Hemant, in his presence he did not speak to the SHO. The witness has also deposed that when SI Hemant left him at the spot, he informed him that the victim of this case had expired at Bara Hindu Rao Hospital. He has testified that he remained at the spot till 6:00 AM in the morning. He has also deposed that Crime Team came in his presence but he did not call the Crime Team. He has denied the suggestion that no exhibits were lifted at the spot or that his signatures were taken on the memos at a much later stage while sitting in the Police Station. He has further deposed that till 6:00 AM he was not aware with regard to the identity of the deceased or the accused. According to the witness the exhibits which were lifted were sealed at the spot by SI Hemant, which seal after use were handed over to him and it remained with him for threefour days. The witness has also deposed that no memo of the handing over of the seal was prepared. He has admitted that the statement of Rohit was not recorded in his presence St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 73 but he has denied that even the endorsement was not made by SI Hemant in his presence. He has denied the suggestion that no site plan was prepared at the instance of Rohit. According to the witness, Khir Sagar Patel had disclosed that he was friend of the deceased Ashish but his statement was not recorded in his presence. He has testified that he (witness) was with the Investigating Officer in his private car. He is not aware how the Investigating Officer reached to the house of Khir Sagar and whether he was known to Khir Sagar previously or not and has voluntarily explained that he only accompanied the Investigating Officer. Witness has admitted that Khir Sagar was not present with the Investigating Officer. He has deposed that the Investigating Officer did not prepare the pullanda of the said bag, nor sealed the same. Witness denied the suggestion that the pitthu bag Ex.P9 has been incorporated and planted upon the accused only to create evidence against him and connect him to the offence. He has also denied the suggestion that in order to work out a blind case the friends of the deceased were picked up and illegally detained in the Police Station for threefour days after which they were introduced as witnesses in the case. He has further denied that he merely signed the document on the asking of the Senior Officers and it is for this reason that he was unable to give the various details. (89) PW30 Inspector Mukesh Kumar is the Investigating Officer of the present case who has deposed that on 27.02.2012 he was posted at Police Station Mukherjee Nagar and on that day Duty Officer handed St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 74 over to him original rukka and copy of the FIR in the present case and further investigations were marked to him. According to the witness, he along with PSI Pawan Kumar and ASI Ranbir Singh reached at the spot i.e. in front of Hanuman Mandir, Vijay Nagar, area of Police Station Mukherjee Nagar where he met SI Hemant and complainant. The witness has also testified that SI Hemant Kumar handed over to him exhibits related to the present case after which he prepared the site plan at the instance of complainant which is Ex.PW30/A and thereafter he along with complainant reached in front of Police Station where one Ascent car bearing No. DL8CJ1289 was found parked. He has further deposed that the complainant informed him that he had taken the deceased to the hospital in that car itself on which he checked the said car and found one pink colored blood stained shirt and blood stained pieces of newspaper which were converted into pullanda by him and sealed with the seal of HK and thereafter he seized the pullanda and Ascent car vide seizure memo Ex.PW16/B. He has testified that he deposited all the exhibits including the exhibits which were handed over to him by SI Hemant with MHC(M). The witness has also deposed that thereafter he went to HRH hospital and conducted the inquest proceedings and prepared the documents i.e. application for conducting postmortem which is Ex.PW30/B; brief facts which are Ex.PW30/C; filled the form No. 25.35 which is Ex.PW30/D; prepared dead body identification memo St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 75 Ex.PW1/A and Ex.PW15/A. He has also deposed that accordingly he got conducted the postmortem on the dead body of deceased after which the dead body of deceased was handed over to its relatives vide receipt Ex.PW15/B. According to him, the doctor handed over the exhibits including the sample seal, blood sample viscera and clothes of deceased in a sealed condition which were taken into possession vide seizure memo Ex.PW29/A. He has also deposed that thereafter they came back to the Police Station and recorded statements of witnesses. The witness has further deposed that the bag of accused was produced by witness Kheer Sagar and was taken into possession vide seizure memo Ex.PW22/A after which they came back to the Police Station where exhibits were deposited with MHC(M) and he recorded the statements of witnesses. (90) He has further testified that on 05.03.2012 SI Sanjay Tomar came to the Police Station along with accused Abhijeet and handed over to him after which he interrogated accused and recorded his confessional statement which is Ex.PW17/C after which the accused was produced before the duty MM and he was remanded to one day Police Custody. According to him, on 06.03.2012 accused was remanded to Police Custody and during that period he pointed out the place of occurrence vide Ex.PW11/A. He has also deposed that on 07.03.2012 as per the confessional statement accused led them to Agra near Kalpana hotel and from the fields he got recovered one knife which was used in the incident St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 76 pursuant to which he prepared the sketch of knife which is Ex.PW19/A. He has also deposed that the knife was kept in a pullanda and sealed with the seal of HK and the pullanda was taken into possession vide seizure memo Ex.PW19/B after which they came back to Delhi and exhibits were deposited with MHC(M) and he recorded the statements of witnesses. The witness has further deposed that on 11.03.2012 the present case file was deposited with MHC(R) as he met with an accident and on 26.05.2012 he again received the case file for further investigations. He has proved having recorded the statements of Vijay Kumar and Bharat and Vijay Kumar produced the dumble and prepared the sketch Ex.PW5/B and seized the same vide seizure memo Ex.PW5/A. The witness has testified that thereafter he recorded the statements of witnesses, completed the investigations, prepared the charge sheet and presented the same in the court.
(91) The witness has correctly identified the accused Abhijeet in the Court and also identified the case property i.e. one bag of Addidas which was produced by Kheer Sagar Patel, which bag is Ex.P9; one dumble which was produced by Vijay Kumar which is Ex.P1; one knife got recovered by accused Abhijeet, which is Ex.P6; the Ascent Car Ex.P2 from the photographs Ex.PW14/A1 to Ex.PW14/A8; one blood stained shirt of pink color and blood stained newspapers which shirt is Ex.P3 and newspapers are Ex.P4.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 77 (92) In his cross examination by the Ld. Defence Counsel the witness has deposed that the investigations were handed over to him on 27.02.2012 at about 7:45 AM. According to the witness, he along with SI Ranbir Singh, W/Ct. Sunita, Ct. Chander Shekhar and Ct. Mukesh had gone to Agra by a private taxi which was White Colored Xylo whose registration number he does not recollect. He has testified that he had not placed any document on judicial file in respect of hiring taxi for going to Agra nor he placed any document in relation to departure entry of all the officials aforementioned who went with him to Agra on 07.03.2012. According to the witness, he cannot place on record any document including toll receipt to show that he had gone to Agra on 07.03.2012. He has testified that he did not make any entry at local police station at Agra nor joined any witnesses from the local police at UP in the investigations. He has denied the suggestion that he did not go to Agra and it is for this reason that he was unable to place on record any document including toll receipt or any DD entry to local police to establish his presence there. Witness has denied the suggestion that the knife Ex.P6 has been planted on the accused and all the proceedings conducted thereof were fabricated while sitting in the police station. The witness has also deposed that he did not put any identification mark on the knife. He has also deposed that he also did not produce the knife before the Ld. MM at the first instance after its seizure and the seal after use was handed over to SI Ranbir. According to him, he did not prepare St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 78 any handing over memo of the seal. He has admitted that the knife was recovered from an open area and it was freely accessible to the public. According to him, he prepared the site plan at about 9:30 AM which is in his handwriting. He has further deposed that the distance between place of occurrence and ganda nala is about 15 meters. He has also deposed that if anybody had to go to Christian colony from the place of occurrence he was required to cross the ganda nala/drain. He has denied the suggestion that he had kept Vijay, Sagar, Jai Mishra, Bharat in illegal detention for four days in PS Mukherjee Nagar. He has also denied the suggestion that the accused did not make any disclosure statement or that the same was recorded by him of his own or that accused did not get recovered any knife as alleged by him or that the knife was planted upon the accused Abhijeet only to connect him with the present offence only to solve blind murder case.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(93) After completion of prosecution evidence the statement of the accused Abhijeet Raj was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him which he has denied. He has stated that he is innocent and has been falsely implicated by the police in the present case to solve a blind case. The accused has admitted his presence at the spot but according to him, he had left the room of Vijay and there was never a quarrel between him and the deceased. However, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 79 the accused has not examined any witness in this defence.
FINDINGS:
(94) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under
and later on comprehensively.
Sr. Name of the Details of deposition No. witness Public witnesses:
1. Kuldeep Sharma He is the brother in law/ Jija of the deceased Ashish (PW1) Sharma who proved that on 27.2.2012, he identified dead body of Ashish Sharma who was his real brotherinlaw (saala) in Hindu Rao Hospital, Delhi vide his statement which is Ex.PW1/A. He has also proved that after postmortem the dead body was handed over to Navdeep, who is elder brother of deceased, by the Investigating Officer Inspector Mukesh Kumar.
2. Vipin Chauhan He is a photographer by profesion and has proved that (PW14) on 27.02.2012 he took photographs of one ACCENT car of white color which was found parked outside the Police Station by his digital camera which photographs are Ex.PW14/A1 to Ex.PW14/A8 and the CD is Ex.PW14/B.
3. Navdeep Sharma He is the elder brother of the deceased and has deposed (PW15) on the following aspects:
1. That on 26.07.2012 he was present at his village Fatehpur Kalan, District Saharanpur, UP and in St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 80 the intervening night of 26/27.02.2012 at about 1:19 AM (midnight) he received a mobile call from Rohit Negi that an incident took place and his brother Ashish Kumar Sharma was admitted in the Hindu Rao Hospital in an injured condition.
2. That he immediately rushed to Delhi and reached at the spot i.e. Vijay Nagar, in front of Hanuman Mandir, Delhi at about 4:30 AM where he found a lot of blood there.
3. That he also found one slipper of grey color of Ashish at the spot which was smeared with blood.
4. That he went to Hindu Rao Hospital and came to know that his brother Ashish Kumar Sharma had already expired.
5. That he reached at Police Station Mukherjee Nagar where he found ACCENT car bearing No. DL8CJ1289 of Ashish Kumar Sharma at the gate of the Police Station.
6. That he found one blood stained shirt of Ashish Kumar Sharma and some blood stained newspapers on the rear seat of the car.
7. That he again reached at Hindu Rao Hospital and on the same day postmortem was conducted after which he identified the dead body of his brother Ashish Kumar Sharma and police recorded his statement in this regard vide Ex.PW15/A.
8. That after postmortem dead body was handed over to him vide Ex.PW15/B.
9. That he took the above said car on superdari by the order of the court which car Ex.P2 is shown in the photographs Ex.PW14/A1 to Ex.PW14/A8 and the blood stained shirt and blood stained newspapers are shown in the photographs Ex.PW14/A2, Ex.PW14/A3 and Ex.PW14/A8.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 81
4. Rohit Singh Negi He is the complainant in the present case and has (PW16) deposed on the following aspects:
1. That Ashish Kumar Sharma was his close friend to whom he was known since 67 years.
2. That he made a plan to meet his friend Ashish Kumar Sharma in a usual manner and on 26.02.2012 at about 8:158:30 PM Ashish Kumar Sharma met him at Hudson Lane, near NDPL office.
3. That they consumed some Whiskey and thereafter they moved towards the house of Ashish Kumar Sharma at Khajuri Khas.
4. That they reached near his house at about 9:309:40 PM after which Ashish went to his house and he was waiting for him in his car ACCENT of white color and he (Ashish) brought a shirt and some paranthas from his house.
5. That Ashish made a call to Vijay, their common friend and reached at the room of Vijay at Patel Chest, Christian Colony, North campus but Vijay was not present at his room.
6. That Abhijeet, Ranjeet and Sagar were present at the room of Vijay where they were consuming liquor there and they also consumed some liquor there.
7. That Sagar was saying that he was planning to buy a car make REVA after which a hot discussion started between Abhijeet and Ashish Kumar Sharma about the cars and they started quarrelling with each other but due to their intervention they were separated.
8. That meanwhile Nitin and Bharat also reached there after which Ashish Kumar Sharma went away from there at the room of his friend at Patel Chest.
9. That he along with Sagar came down from the room of Vijay and after 15 minutes Ashish Kumar also came there.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 82
10. That Abhijeet also came down from the room of Vijay and again discussion took place between Ashish and Abhijeet and hot words exchange between them.
11. That when Ashish returned back after 1015 minutes, Abhijeet started abusing him and told him that "tu pehle bhi mere sath behas kar chuka hai, aur apne apko jyada samajdhar samjhta hai aur aaj mein tujh ko jinda nahi chorunga".
12. That they tried to pacify both of them.
13. That thereafter Abhijeet took Ashish from there while discussing with him.
14. That on suspicion he followed them but both Abhijeet and Ashish did not meet him at the shop of Mama Pranthe wala.
15. That when he was returning back, he saw that Bharat and Nitin were running towards the nala.
16. That he also followed Bharat and Nitin and while running Nitin informed him that Abhijeet had returned back alone and his hands and clothes were smeared with blood and Abhijeet was saying to him that he had committed the murder of Ashish.
17. That Nitin informed him that Abhijeet had killed Ashish (Abhijeet ne Ashish ko mar diya).
18. That thereafter they reached in front of Mandir near nala where Ashish was found in injured condition and blood was oozing out from the backside of his head and from his eyes.
19. That he took out the keys of the car from his pocket and brought his car at the said place near nala and he along with Bharat and Nitin put Ashish in the car and took him to Hindu Rao Hospital but he was declared dead by the doctors.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 83
20. That he made a call to the brother of Ashish about the incident.
21. That Police also came at Hindu Rao Hospital and he also went to the Police Station Mukherjee Nagar with the car of Ashish.
22. That the shirt of Ashish which was brought by him from his house was also smeared with blood and some newspapers were also on the rear seat found smeared with blood.
23. That police recorded his statement vide Ex.PW16/A.
24. That a photographer also came at the police station on the next morning and took photographs of the car and the articles.
25. That the police sealed said newspapers and shirt and sealed the same with a stamp and seized the car and the above said pullanda vide seizure memo Ex.PW16/B.
5. Jai Mishra He is also a witness of last seen who has deposed as (PW20) under:
1. That on 07.02.2012 he came to Delhi to appear for his examination papers of B.A. First year of IGNOU and resided in the room of Manas for one day only and thereafter he shifted to the room of Vijay at Christian Colony, Patel Chest who was known to him since 2011.
2. That in the night of 25.02.2012, Rohit came to their room and on the next morning i.e. on 26.02.2012 he went away from there.
3. That on 26.02.2012 at about between 8 to 9 PM he received a call of Ankit, his friend, original resident of Dibru Garh, Assam and he called him for dinner and went to the GTB Nagar, Metro Station to meet him and thereafter he alongwith Ankit went to the complex of Hudson lane to take dinner.
4. That at about 9.30 /10:00 PM they returned back to the room of the Vijay where Vijay and Bharat met them and Vijay was in the process of St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 84 changing his clothes as he had to go to Gaziabad.
5. That thereafter he again went to near Shani Mandir to see of his friend Ankit and after some time reached at the room of Vijay who had already left the room and Sagar, Bharat and two three persons were present there.
6. That Sagar was giving a party of purchase of a new mobile phone and he asked him (witness) for dinner and liquor but he (witness) told him that he had already taken his dinner and he was not consuming any liquor.
7. That Sagar Abhijeet and Ranjit were sitting in the room and they were consuming liquor and Sagar offered liquor to him but he refused because he had already taken his dinner.
8. That thereafter Sagar gave some money to Bharat to purchase the liquor and he asked Bharat to provide key of his room as he wanted to sleep in his room as he was not taking any dinner and liquor in their company.
9. That he took key from Bharat of his room and went to his room which was adjacent to the room of Vijay.
10. That he was watching movies in the Laptop of Bharat in his room and after sometime Bharat also came in the room and joined him.
11. That in the meanwhile they heard some noise of hot discussion from the room of Vijay on which Bharat went to see the quarrel and also advised them not to quarrel and not to make noise.
12. That he made a call to Vijay that a quarrel was taking place in his room and that hot words were being exchanged and many public persons from the neighbouring houses also came there.
13. That the occupants of the room left the room when the persons staying in the neighbourhood objected to their behaviour.
14. That thereafter Sagar, Bharat, Nitin, Ashish and St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 85 Rohit went away downstairs from the said room while Abhijeet and his friend remained in the room and the same was bolted from outside by Bharat or may be by Sagar.
15. That Abhijeet was shouting from the room and also hitting the door from inside and was saying that he would not make any quarrel with Ashish.
16. That thereupon he opened the door from the outside after which Abhijeet and his friend also went away from the room.
17. That he made a call to Vijay and informed him that all the occupants of the room went downwards and thereafter he bolted the room from outside and went in the room of Bharat.
18. That Abhijeet was having a dumble in his hand and was concealing the same at his back which he had seen from their balcony.
19. That he came down immediately and snatched the dumble from the hands of Abhijeet and told Bharat and other persons that he could cause injuries by said dumble to Ashish.
20. That he was at a little distance from Bharat and Nitin who were standing on the road in front of the gate of Christian Colony when he saw Abhijeet come to them with a blood stained knife in his hand and he saw him talking to Bharat and Nitin but what he was telling them he could not hear.
21. That he had seen Abhijeet with the knife in his hand which knife was blood stained and his hand also was having blood but he was not sure about his clothes, if they were also blood stained.
22. That one public person who appeared to be rickshaw wala or a thelawala came from the nala side in a nervous condition and told them"Aap ka ek adami waha par gira para hai" on which they all including himself started running towards the direction.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 86
23. That on this he, Bharat and Nitin ran towards the said directions and Rohit also joined them and when they reached near the Shani Mandir they saw that Ashish was lying on the ground in injured condition and blood was oozing out from his eye.
24. That Bharat told him to go to his room and inform Vijay and thereafter he went away to the room of Ravish and remained there.
25. That after sometime he received a call from Bharat who informed him that Ashish was declared dead.
6. Vijay Kumar This witness has deposed the following aspects:
(PW21) 1. That on 26.02.2012, accused Abhijeet had come to his house at around 7:30/8:00 PM for designing the logo of his (witness's) institute as he was running a Vedanta Education Institute at Sant Nagar.
2. That since he had to go to attend the marriage in the family of his friend Subodh at Raj Nagar, Ghaziabad, he handed over the key of his house to Jai who was also residing with him in his house and thereafter, he left Abhijeet and Jai at their house and he left his house.
3. That on that day one Kheer Sagar Patel who was residing on the first floor of his house had taken one Apple Mobile Phone, had also came to his room and thereafter Abhijeet started downloading applications in the Apple Phone of Kheer Sagar Patel.
4. That Kheer Sagar had also came to his home before he left his house and at that time Kheer Sagar, Jai and Abhijeet were present at his room.
5. That Kheer Sagar was giving a party in his room as he had purchased Apple Mobile phone and he had also inquired from him (witness) whether he would take the drink but he (witness) refused as he had to go to attend marriage, on which he left his house at around 8:15/8:30 PM and thereafter, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 87 he went to Ghaziabad.
6. That when he was attending the marriage at around 12:00/12:30 mid night, he received a telephone call from Abhijeet who told him that he was going to his home, on which he (witness) asked him to stay at his room but he refused and thereafter, he went to Laxmi Nagar.
7. That after about one hour, he started receiving telephone calls from many numbers that Ashish has been murdered.
8. That Ashish was the friend of Rohit Negi who used to come in their building.
9. That he got nervous as Ashish had also taken a drink with Abhijeet, Jai Kumar, Kheer Sagar etc.
10. That in the morning, Bharat gave a telephone call to him and told him that everyone is suspecting him, on which he came to Police Station Mukharjee Nagar in the morning at about 10:00 AM.
11. That he alongwith Rohit, Sagar, Jai and Nitin were kept in the Police Station for about three four days and after about fourfive days, he was called by SI Sushil who came to his room and did the investigations and picked up one dumble of dekchune which was seized vide memo Ex.PW5/A.
12. That the Investigating Officer also prepared the sketch of the dumble which is Ex.PW5/B. This witness has resiled from his earlier statement to the effect that Abhijeet had told him on telephone that he had murdered Ashish and was is running away from there (Maine Ashish Ko Maar Diya Hai Aur Mai Yahan Se Bhaag Raha Hoon).
7. Khir Sagar Patel This witness has deposed on the following aspects:
(PW22) 1. That on 26.02.2012, at around 5:00 PM, he was present in Christian Colony, Delhi and at that time he was residing in the same colony in House No. D47, Second Floor, Room No. 11.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 88
2. That he had purchased one Apple Mobile Phone but he was not able to download the software when at around 5:00 PM Vijay and Abhijeet met him in the Colony on which he told to Vijay that he was not able to download the software.
3. That Vijay told him that Abhijeet was having I Phone and he can download the software on which he alongwith Vijay and Abhijeet went on the room of Vijay at First Floor of the building where he was residing.
4. That in the room, Abhijeet had downloaded the software in his Mobile Phone and they demanded a party from him for the purchase of mobile phone after which he went to bring Whiskey from the market and came back after about 1015 minutes with Whiskey when in the mean time Vijay received a telephone call of his friend as he had to go to attend marriage at Ghaziabad.
5. That one Jai was residing with Vijay in his room and in the adjoining room of Vijay, one Bharat was residing.
6. That Bharat and Jai had also asked him for the party and thereafter he he alongwith Bharat, Jai and Abhijeet had sat in the room of Vijay for taking drink.
7. That Vijay had left the room for Ghaziabad and they were taking the drinks and normal talks regarding the IPhone were going on.
8. That after around one hour, one Rohit had also come there, whom he had met second time through Vijay.
9. That he also offered drinks to Rohit but Rohit told him that he did not drink Whiskey and only takes Rum.
10. That Rohit informed him that his friend Ashish was also coming there with Rum.
11. That after some time, Ashish had also come there and Rohit introduced Ashish to everybody present there.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 89
12. That thereafter Ashish and Rohit had also joined the party while Abhijeet was downloading the data with the help of date cable through laptop in the mobile phone.
13. That when they were taking the drinks, they were talking loudly and Nitin who was residing on the third floor came there and asked them not to make noise.
14. That since they almost finished of their drinks so he asked all of them to come down as people from the neighbours were objecting, after which they all came down.
15. That when they came down, Jai told him that he had become intoxicated (Nasha Ho Gya Hai) and was going to his room and thereafter, he went to the room after which they came near the gate of the Christian Colony.
16. That Ashish was talking on the phone and Nitin, Abhiheet, Rohit, Bharat and Ashish were all talking to each other.
17. That thereafter even he told the others that he had to go as he had to get up early in the morning and he also became intoxicated (Nasha Ho Gya Tha).
18. That he also inquired from Abhijeet as to whether he would stay here or he would go but Abhijeet told him that he would go from there, as Vijay was not present there, on which he (witness) came back to his room.
19. That at about 3:00 PM, police came to his room and took him to the Police Station and made inquiries form him.
20. According to the witness, he remained there for about threefour days.
21. That accused Abhijeet was not found present in Delhi after the incident.
This witness has resiled from his earlier statement on the aspect of exchange of hot words between the accused and the deceased and that he came to know later on from Bharat, Nitin, Jai or Rohit that Abhijeet had killed St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 90 Ashish; that Abhijeet had come to his room in the evening and was having his blue colour pitthu bag containing his goods which he handed over to the Police on 27.02.2012 and on checking, it was found to contain the driving licence of Abhijeet, two SIM cards (One of TATA and other was of VODAFONE), 10 Photographs of Abhijeet, One Memory Card of 2GB, one Mobile Phone, Make NOKIA, Black Colour, One SIM of UNINOR, One Card Holder of black colour, Seven Visiting Cards by the name of Abhijeet Raj, One TITAN Wrist Watch and one Metro Train Smart Card, One Health Fitness Slip, One Small Knife, Two Pens, One Gogals case, coins of Rs. 1/, One Gamcha with Strips, one Nokia Phone Charger, One Black Colour Diary on the first page of which Abhijeet Raj was written in English, it was a Spiral Diary, in which with red pen '20 ways to kill with your bare hand' was written. However, he has admitted that the seizure memo of bag which is Ex.PW22/A bear his signatures at point A.
8. Nitin Kumar This witness has deposed on the following aspects:
(PW27) 1. That in the year 2012 he was residing at B47, Room No. 14, Christian Colony, Delhi University, Delhi - 110007 and on 26.02.2012 he came to his room from Central Library, Delhi University at about 10:30 PM.
2. That after taking his dinner, he was coming down to ground floor and from Room No.6 where Vijay used to reside, he heard some noise on which he went inside the room and saw Khir Sagar Patel, Abhijeet, Ashish, Rohit, Bharat and Jai drinking alcohol.
3. That they had completed the drinks and he alongwith Bharat, Abhijeet, Ashish, Rohit and Sagar came out from the room and Jai was also accompanying them but near the stairs he told them that he had to returned back to the room for sleeping after which all of them went towards the gate of colony.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 91
4. That in the meanwhile Ashish received a telephonic call on his mobile and he told Rohit that he would come back within 1520 minutes.
5. That near the gate of the colony, he (witness) took cup of tea and started talking with Bharat.
6. That Abhijeet told them that Vijay was not with them as he had gone to Laxmi Nagar.
7. That Sagar told them that he had to attend his office the next day so he left to his room in Christian Colony for sleeping and Rohit told them that he was going to see Ashish as he wanted the key of vehicle.
8. That he alongwith Bharat remained present at the gate of colony and after some time Rohit returned back as as he did not meet Ashish.
9. That from the Nala side towards the gate of colony, they saw one person coming who told them that just ahead of Temple, one person was lying.
10. That he alongwith Ashish and Rohit went towards the Temple and saw that Ashish was lying just ahead of Temple and blood was oozing out from his eyes and back side of the head.
11. That Rohit took out the keys of vehicle from the pocket of Ashish and went to fetch the vehicle which was parked in front of Maurice Nagar, Police Station and he brought the vehicle.
12. That they checked the body of Ashish and found that he was still breathing.
13. That Rohit reached at the spot with the vehicle and thereafter, he with the help of Bharat and Rohit lifted Ashish from the ground and removed him to Hindu Rao Hospital in the Ascent Car of Ashish which was being driven by Rohit.
14. That in the Casualty at Hindu Rao Hospital, Ashish was medically examined by the Doctors and was declared dead.
This witness has not supported his earlier version that he had seen Abhijeet coming from the side of Ganda Nala, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 92 Vijay Nagar towards them and told him and Bharat that he had killed Ashish and at that time clothes and hands of Abhijeet was in blood stains; which facts he had told to Rohit that Abhijeet told them that he had killed Ashish.
9. Bharat Jeet This witness has deposed on the following aspects:
(PW31) 1. That in the year 2012 he was a student of BA 1st Year of Ramjas College and on 26.2.2012 he was present in his room at B47, Christian Colony, Patel Chest, Delhi.
2. That his senior Sagar had purchased a new mobile phone of Apple and had arrange a party for purchase of the new mobile phone.
3. That he, Sagar and Abhijeet (whom the witness has correctly identified from the dossier) and Jai had joined the party arranged by Sagar.
4. That they all were taking drinks in the party and after some time one Rohit Negi and Ashish (since deceased) came in the room.
5. That when Ashish entered the room he was having liquor with him and they had already consuming and thereafter Ashish and Rohit also started consuming liquor.
6. That they had almost consumed the liquor and were gossiping with each other when after sometime Nitin came and complained as to why they were talking in a loud voice as he was getting disturbed, after which they all went downstairs from the rooms of the hostel.
7. That Jai asked him (witness) to handed over the key of the room in which they were consuming the liquor pursuant to which he handed over the key of the room to Jai who went upstairs and they came near the gate of Christian Colony of Patel Chest, Delhi.
8. That they started talking with each other and Ashish made a telephone call to some of his friends and told them that he would join them after meeting his friend to whom he was talking on the phone after which Ashish left.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 93
9. That after sometime they started talking with each other and Sagar asked that on the next day he had to join his duty so by saying this he left their company and went for sleeping in his room when it was around 11:0011:30 AM and then accused Abhijeet also left as Vijay the friend of Abhijeet was not there.
10. That thereafter he, Nitin and Rohit again started talking with each other when Rohit told them that he wanted to go home and also told them that he knew as to where Ashish had gone.
11. That thereafter he and Nitin went for taking tea when in the meanwhile Rohit also came and they started talking to each other.
12. That some unknown person came there and told them that some person was lying in an injured condition near Nala on which he, Rohit and Nitin went there and saw that Ashish was lying in an injured condition.
13. That they took Ashish in Hindu Rao Hospital in the car of Ashish which was brought by Rohit subsequently where doctor declared him brought dead.
This witness has not supported his earlier version on the aspect of involvement of accused Ahhijeet Raj in the commission of offence.
Witness of Medical Record:
10. Dr. Dharmraj This witness has proved the MLC of the deceased which (PW12) is Ex.PW12/A according to which on 27.02.2012 at about 1.00 AM Ashish Kumar Sharma S/o B.B. Sharma, Age 28 years was brought to the hospital by Rohit and Nitin with alleged history of physical assault and on examination of patient BP was not recordable and heart sound was absent on which he declared the patient as 'brought dead'.
11. Dr. Abhishek This witness has proved the postmortem report in respect Pachauri (PW13) of the deceased which is Ex.PW13/A according to which there were as many as 15 injuries and the cause of death St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 94 has been opined to be shock and haemorhage consequent to injuries, all the injuries except injury no.
1, 10 and 11 have been caused by sharp edged weapon and injury no. 1,10 and 11 have been caused by blunt force impact with a hard surface/ object, all the injuries were antemortem and recent, Injury no. 15 is individually sufficient to cause death in ordinary course of nature and time since death was approximately 13 to 15 hours.
Further, the witness has proved the subsequent opinion dated 30.04.12 which is Ex.PW13/B according to which Dr. C.B. Dabas received the application from Investigating Officer inspector RS Meena for subsequent opinion with a sealed parcel containing the alleged weapon of offence and the sealed pullanda was found with the seal of HK and according to this opinion, Dr. C.B. Dabas prepared the diagrammatic sketch of the weapon of offence which was found in sealed pullanda vide Ex.PW13/C. He has also proved that Dr. C.B. Dabas gave his opinion that the all the injuries except injury no.1, 10 and 11 could have been caused by sharp edged weapon like the one examined by him.
FSL Experts
12. Sh. M.L. Meena This witness has proved the Chemical Examination (PW23) Report/ Viscera Report Ex.PW23/A according to which no common poison could be detected in any of the exhibits.
13. Manoj Kumar This witness has proved the Biological Analysis Report (PW24) dated 27.2.2013 given by Ms. Imrana, Sr. Scientific Officer (Biology) which is Ex.PW24/A according to which blood was detected in Ex.1 (cotton wool swab), 2 (exhibit kept in plastic container), 3a (two coins), 3b (blade), 4 (blood sample), 5a (one pant), 5b (one shirt), 5c (baniyan), 5d (dirty underwear), 7a (another shirt) 7b (newspaper). He has also proved the Serological Report dt. 27.2.2013 prepared by Ms. Imrana, Sr. Scientific Officer (Biology) which is Ex.PW24/B (running into one St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 95 page) according to which the blood group of deceased is 'A group' and the baniyan Ex.5c and shirt Ex.5a are found to have blood of 'A group' and all the above exhibits have blood of human origin on the same.
14. Naresh Kumar This witness has also proved the Biological and (PW26) Serological Reports Ex.PW24/A and Ex.PW24/B prepared by Ms. Imrana which reports have already been proved by PW24 Manoj Kumar.
Police / Official witnesses:
15. HC Kailash He is a formal witness being the MHCM who has proved (PW2) the entry in Register No.19 vide S.No. 2644 copy of which is Ex.PW2/A (running into six pages); entry in register no. 21 vide RC No. 17/21/12 copy of which is Ex.PW2/B; RC No. 19/21/12 copy of which is Ex.PW2/C; RC No. 20/21/12 copy of which is Ex.PW2/D; RC No. 23/21/12 copy of which is Ex.PW2/E; entry in register No. 19 vide entry No. 2719 copy of which is Ex.PW2/F (running into two pages); entry No. 3009 copy of which is Ex.PW2/G; copy of receipt of FSL which is Ex.PW2/H; copy of receipt of FSL which is Ex.PW2/I; copy of RC No. 22/21/12 which is Ex.PW2/J; receipt of FSL vide No. FSL/2012/C3067 dated 08.05.2012 copy of which is Ex.PW2/K; FSL receipt No. FSL2012/B3070 dated 08.05.2012 copy of which is Ex.PW2/L.
16. HC Raj Kumar He is a formal witness being the Duty Constable at Hindu (PW3) Rao Hospital who has proved the DD No. 12 A copy of which is Ex.PW3/A and seizure memo of the articles of deceased which is Ex.PW3/B.
17. Ct. Sandeep He is a formal witness being the Special Messenger who Kumar (PW4) has proved having delivered the copy of FIR/ Special Reports to the senior officers.
18. SI Sushil Kumar He is a formal witness who has proved that on 8.5.2012 (PW5) he received seven parcels vide RC No. 22/21/12 and RC No. 23/21/12 copies of which are Ex.PW2/J and Ex.PW2/E respectively and deposited the same in the FSL vide receipt which is Ex.PW2/K and Ex.PW2/L St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 96 respectively.
He has further proved that on 26.5.2012 the Investigating officer recorded the statement of Vijay S/o Ashok Kumar and Bharat S/o Mudrika Prashad and Vijay Kumar produced a green colour dumble which was seized by the Investigating Officer vide memo Ex.PW5/A. He has also proved that the Investigating Officer prepared the sketch of the dumble which is Ex.PW5/B before sealing and seizing the same.
19. Ct. Anil Kumar He is a formal witness being the PCR Official who has (PW6) proved the PCR form which is Ex.PW6/A.
20. Inspector Mahesh He is a formal witness being the draftsman who has Kumar (PW7) proved the scaled site plan which is Ex.PW7/A.
21. SI Sanjeev Kumar He is a formal witness being the Crime Team Incharge (PW8) who has proved the Crime Team Report which is Ex.PW8/A.
22. HC Arvind Kumar He is also a formal witness being the Duty Officer who (PW9) has proved the copy of FIR No. 66/12 copy of which is Ex.PW9/A and his endorsement on rukka which is Ex.PW9/B.
23. HC Sudhir Kumar He is a formal witness being the Crime Team (PW10) Photographer who has proved the photographs which are Ex.PW10/A1 to Ex.PW10/A9 negatives of are collectively Ex.PW10/B.
24. Ct. Narpal He is a formal witness who has proved that on 6.3.2012 (PW11) accused Abhijeet Raj pointed out the place of occurrence vide pointing out memo Ex.PW11/A. He has further proved that on 30.4.2012 he took one parcel from the MHCM vide RC No.17/21/12 copy of which is Ex.PW2/B and deposited the same with the FSL Rohini.
He has also proved on 4.5.2012 he received one viscera box and seven parcels from the MHCM vide RC No. 19/21/12 and RC No. 20/21/12 copy of which are Ex.PW2/C and Ex.PW2/D which he deposited with the FSL Rohini.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 97
25. SI Sanjay Tomar This witness has proved the apprehension and arrest of (PW17) the accused Abhijeet Raj from his native village at Motihari Bihar. He has proved the following proceedings:
Ex.PW17/A Arrest memo of the accused
Ex.PW17/B Personal search memo of the accused
Ex.PW17/C Disclosure statement of the accused
26. HC Santosh This witness has corroborated the testimony of SI Sanjay
Kumar (PW18) Tomar (PW17) regarding the apprehension and arrest of
the accused Abhijjet Raj from Motihari Bihar. He has proved the arrest memo of the accused which is Ex.PW17/A and his personal search memo which is Ex.PW17/B.
27. SI Ranbir Singh This witness has proved the following aspects:
(PW19) 1. That on 07.03.2012 he had joined the investigations in the present case alongwith Inspector Mukesh Kumar, Ct. Chander Shekhar, Ct. Mukesh and Lady Ct. Sunita.
2. That the accused Abhijeet Raj who was in police custody remand, was taken out of the lockup at about 5.00 AM and they all went to Agra in a private vehicle i.e. Innova Taxi.
3. That the accused led them to Tundla Road which is about 15 km ahead of Agra and then led them to fields near Kalpana Hotel, which is situated on the main highway i.e. NH2.
4. That the accused then led them to wheat fields and from the corner of the field, he picked up a white polythene and handed over the same to Inspector Mukesh Kumar informing him that it contained the knife with which he had committed the offence.
5. That Inspector Mukesh opened the said polythene and it was found containing a knife with a small blade and a black colour handle.
6. That Inspector Mukesh prepared the sketch of the knife which is Ex.PW19/A and on measuring the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 98 knife it was found having total length of 22.5 cm with blade of 10 cm, handle of 12.5 cm and maximum width of 0.7 cm and there were three ripid marks on the handle and some stains on the blade which appeared to be blood stained.
7. That Inspector Mukesh converted the same into a pullanda with the help of same polythene after which it was put in plastic container and wrapped in a white cloth and sealed with seal of HK which seal after use was handed over to him and the knife was seized vide memo Ex.PW19/B.
8. That when the accused was asked to inform where were his clothes which he was wearing on the date of incident, the accused disclosed that while he was traveling towards Tundla in a bus, he had thrown the said clothes from moving bus on the way by putting the same in a polythene.
9. That thereafter the accused led them to various places on the road going towards Tundla but the said clothes could not be found.
10. That at about 5.00 PM they started back towards Delhi and after reaching Delhi, medical examination of the accused was got conducted and thereafter put him in the lockup.
28. SI Hemant Kumar This witness had visited the spot of incident and has (PW25) proved the following documents:
Ex.PW25/A DD No. 7A
Ex.PW3/A DD No. 12A
Ex.PW12/A MLC of the deceased
Ex.PW16/A Statement of Rohit Negi
Ex.PW25/B Seizure memo of exhibits lifted from the
spot
ExPW25/C Endorsement on the rukka
29. Inspector R.S. He is the subsequent Investigating Officer of the present
Meena (PW28) case who has proved the following documents:
Ex.PW6/A PCR Form
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 99
Ex.PW28/A Application for subsequent opinion
Ex.PW13/B Subsequent opinion
Ex.PW13/C Sketch of the knife
30. SI Pawan Kumar He is the initial Investigating Officer who has proved the (PW39) following documents:
Ex.PW25/B Seizure memo of exhibits lifted from the spot Ex.PW16/B Seizure memo of Accent car Ex.PW29/A Seizure memo of the clothes of the deceased Ex.PW22/A Seizure memo of bag of the accused
31. Inspector Mahesh He is the Subsequent Investigating Officer who has Kumar (PW30) proved the following documents:
Ex.PW30/A Site plan
Ex.PW16/B Seizure memo of Accent Car
Ex.PW30/B Application for postmortem
Ex.PW30/C Brief Facts
Ex.PW30/D Form 25:35
Ex.PW29/A Seizure memo of the samples of deceased
Ex.PW22/A Seizure memo of bag of the accused
Ex.PW17/C Disclosure statement of the accused
Ex.PW11/A Pointing out memo
Ex.PW19/A Sketch of knife
Ex.PW19/B Seizure memo of knife
Ex.PW5/A Sketch of Dumble
Ex.PW5/B Seizure memo of Dumble
(95) Coming now to the microscopic evaluation of the evidence
against the accused.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 100
Promptness in registration of FIR:
(96) Promptness in registration of FIR rules out any possibility of
tutoring, tempering and padding by the police. The Hon'ble Apex Court in the case of Bhag Singh Vs. State of Punjab reported in 1971 Cr.L.J. 903 has held that ".... The promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up...".
(97) In the present case, Rohit Negi the friend of the deceased Ashish Kumar Sharma is the complainant who was all through remained with the deceased and had seen the accused Abhijeet Raj taking the deceased Ashish Sharma with him towards the gate of Christian Colony and within 1015 minutes he found the deceased lying an injured condition near the nala. He at the first instance had expressed his suspicion over the accused Abhijeet Raj with whom the deceased Ashish Sharma had an altercation. It is evident from the record that after Rohit Negi made his statement to SI Hemant Kumar (Ex.PW16/A), the rukka Ex.PW25/C was prepared at 6:00 AM on the basis of which the FIR Ex.PW9/A was registered at 6:15 AM which aspect has been duly proved by the Duty Officer HC Arvind Kumar (PW9) and SI Hemant Kumar (PW25) and has gone uncontroverted.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 101 (98) Therefore, I hereby hold that keeping in view the prompt registration of FIR wherein suspicion had been expressed upon the accused Abhijeet Raj by the complainant Rohit Negi, the story put forward by the prosecution rules out the possibility of the same being cooked up later as an afterthought.
Medical Evidence:
(99) The case of the prosecution is that the deceased Ashish had died on account of multiple stab injuries given to him on the various parts of the body which were sufficient in ordinary course of nature of cause death.
(100) In order to prove their case the prosecution has placed its reliance on the testimonies of Dr. Dharmraj, Dr. Abhishek and on the postmortem report of the deceased. Coming first to Dr. Dharmraj (PW12) from Hindu Rao Hospital, he has proved that on 27.02.2012 at about 1.00 AM Ashish Kumar Sharma S/o B.B. Sharma aged 28 years was brought to the hospital by Rohit and Nitin with alleged history of physical assault. He has proved that he medically examined the patient vide MLC Ex.PW12/A according to which BP was not recordable and heart sound was absent on which he declared the patient as 'brought dead' and the body was shifted to mortuary.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 102
(101) In so far as Dr. Abhishek Pachauri (PW13) is concerned he has proved the postmortem report Ex.PW13/A in respect of the deceased prepared by Dr. C.B. Dabas according to which there were following external injuries on the body of deceased Ashish Kumar Sharma:
1. Abrasion 2.5x2 cm over left forehead.
2. Incised wound 2.3x0.5cm over left upper eyelid with associated swelling horizontally placed penetrating upto a depth of 1.2 cm in upward direction.
3. Incised wound of 1.2x0.2cm over left cheek horizontally placed.
4. Scratch abrasion 6.5cm over left cheek extending upto chin.
5. Incised wound 1.5x0.2cm over left side of chin near lower angle with scratch abrasion 4.5cm extending horizontally from its outer angle.
6. Incised wound 1.2x0.1cm under chin infront of neck just above thyroid cartilage in mid line horizontally placed.
7. Incised wound 1.5x0.2cm over left side front of neck 4cm outer to mid line horizontally placed.
8. Incised wound 0.5x0.2cm over left side of neck just above injury no. 7.
9. Incised wound 1.5x1cm back of right shoulder 10cm inner to tip of right shoulder.
10.Abrasion measuring 1.5x1.5cm back of right shoulder 0.3cm inner St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 103 to tip of right shoulder.
11.Abrasion in area of 0.4x0.1cm over back of right ring finger over knuckle.
12.Superficial Incised wound 1.4x0.2cm over back of left wrist.
13.Incised Wound 1 x 0.3cm over right side back of chest obliquely placed scapular region 4cm outer to mid line.
14.Incised wound 0.9x0.4cm over back of chest near mid line 3cm below hairline.
15.Incised wound 1x0.5cm x? Depth located on right side of abdomen in lumbar region slightly posteriorly 14cm outer to mid line and located at a height of 120cm above right heel obliquely placed with upper inner angle being acute and lower outer angle is being round edged are clean cut.
(102) The witness has proved that the track of injury is that Injury no. 13 has penetrated its muscle of back of chest upto a depth of 3cm in downward directions; Injury no. 14 has penetrated into neck and chest muscles and tissues upto a depth of 2cm in downward direction; Injury no.15 has penetrated into abdominal cavity and perforated through Peri Renal tissue on back of right kidney near upper pole and then cut through loops of small intestine and its mesentary and ended near right side of spinal muscle in mid line at level L2L3 vertibra, in abdominal cavity. Total length of track is 6.5cm direction from right to left and downwards. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 104 There was effusion of blood alongwith track of the injury with blood clots at sides of cuts in small intestine. He has proved that Dr. C.B. Dabas gave his opinion that the cause of death in this case was due to shock and haemorhage consequent to injuries, all the injuries except injury no.1, 10 and 11 have been caused by sharp edged weapon and injury no. 1,10 and 11 have been caused by blunt force impact with a hard surface/ object, all the injuries were antemortem and recent, Injury no. 15 is individually sufficient to cause death in ordinary course of nature and time since death was approximately 13 to 15 hours. (103) The witness Dr. Abhishek has also proved the subsequent opinion on the weapon of offence i.e. b prepared by Dr. C.B. Dabad which opinion along with the sketch of weapon of offence is Ex.PW13/B according to which all the injuries except injury no.1, 10 and 11 could have been caused by sharp edged weapon like the one examined by him.
(104) This witness Dr. Abhishek has been crossexamined by the Ld. Defence Counsel wherein he has explained that the blunt injuries as mentioned in the postmortem examination report could be possible by a fall on the irregular surface but the injury no. 2 to 9 could not be possible on fall on a surface since the injuries are on different parts and are of different nature and dimensions and therefore not possible on account of a fall.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 105 (105) There is no reason to discard the opinion given by the Autopsy Surgeon duly proved by Dr. Abhishek. The force with which the deceased had been stabbed is established from the fact that the track of Injury No. 13 i.e. Incised Wound 1 x 0.3cm over right side back of chest obliquely placed scapular region 4cm outer to mid line, is that it penetrated its muscle of back of chest upto a depth of 3 cm in downward direction; Injury No. 14 i.e. Incised wound 0.9x0.4cm over back of chest near mid line 3cm below hairline had penetrated head and chest muscles and tissues uto a depth of 2 cms in downwards direction and Injury No. 15 i.e. Incised wound 1 x 0.5cm x ? depth located on right side of abdomen in lumbar region slightly posteriorly 14 cm outer to mid line and located at a height of 120cm above right heel obliquely placed with upper inner angle being acute and lower outer angle was round edged clean cut, had penetrated the abdomen cavity and perforated through Peri Renal tissues on the back of the right kidney near upper pole and then cut through the loops of small intestine and its mesentary and ended near right side of spinal muscle in mid line at level L2L3 vertibra, in abdominal cavity, with a total length of track as 6.5cm direction from right to left and downwards. This repeated infliction of stab injuries as many as Eleven in number confirm the intent of the accused and the force with which these stab injuries have been caused on vital parts confirms and establishes that the intention infact was to cause death of the deceased.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 106 (106) Therefore, I hereby hold that the Medical Evidence on record is compatible to the prosecution case that the death of Ashish was caused due to shock and haemorhage consequent to stab injuries and that the Injury no. 15 is individually sufficient to cause death in ordinary course of nature and the time of death as per the prosecution version is commensurate to the time of the incident.
Forensic Evidence:
(107) In so far as the forensic evidence is concerned the viscera of the deceased was sent for examination. Sh. M.L. Meena (PW23) Sr. Scientific Officer, FSL Rohini has proved the Chemical Analysis/ Viscera Report which is Ex.PW23/A according to which no common poison could be detected in any of the exhibits.
(108) Further, Manoj Kumar (PW24) Laboratory Assistant from FSL Rohini has proved the Biological Analysis Report Ex.PW24/A and Serological Report Ex.PW24/B prepared by Ms. Imrana Senior Scientific Officer according to which the blood group of deceased was 'A group' which was found on the baniyan Ex.5c and shirt Ex.5a whereas all other exhibits i.e. Ex.1 (Cotton wool swab), Ex.2 (Concrete material), Ex.3a (Coins), Ex.3b (blade), Ex.5a (pants), Ex.5b (shirt), Ex.5d (underwear), Ex.6 (Knife) and Ex.7b (newspaper) contained the blood of human origin.
(109) The above forensic evidence on record establishes the spot of incident from where the various exhibits were lifted. Also, Human St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 107 Blood has been confirmed to be present on the weapon of offence i.e. knife which was allegedly got recovered by the accused Abhijeet Raj and this a strong pointer towards the guilt of the accused.
Ocular Evidence/ Last Seen evidence:
(110) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(111) Unfortunately, in the present case there is no ocular/ eye witness count and the entire case of the prosecution is based upon Last Seen Evidence brought on record in the form of testimony of complainant Rohit Negi and another witness Jai Mishra. The case of the prosecution that on 26.2.2012 the deceased Ashish Kumar Sharma and Rohit Negi who were close friends went to the house of their common friend Vijay at Patel Chest, Christian Colony, North Campus but Vijay was not found present there and other boys namely Abhijeet (accused) Ranjeet and Sagar were present at the room of Vijay where they were consuming liquor. After some time they were also joined by Ashish and Rohit.
During the drinking session there was a hot discussion between Abhijeet St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 108 (accused) and Ashish Kumar Sharma (deceased) on the the quality and performance of cars of different companies but the matter was pacified by their friends. For some time Abhijeet Raj was also locked in the room and then freed by Jai Mishra after which accused Abhijeet Raj came down by hiding a dumble Ex. P1 which was lying in the room of Vijay behind him which was seen by Jai Mishra who apprehending trouble immediately took away the dumble from his hand. Thereafter, Abhijeet and Ashish were seen going away together from the gate of Christian Colony towards the nala near the temple by putting their hands on each other and went away from the gali. Rohit Negi had some suspicions on this conduct of Abhijeet on which he (Rohit Negi) followed both of them but they could not be traced, on which he (Rohit Negi) again returned back to the outside of the colony and while they were talking to each other they found Abhijeet Raj coming alone from that side and a rickshaw wala also coming from the said direction shouting that their friend was lying injured and had been hurt. Thereafter Rohit Negi, Bharat, Jai Mishra and Nitin ran towards the left side of nala where they found Ashish in injured condition and blood was oozing out from the backside of his head and from his eyes, on which Rohit Negi along with Bharat and Nitin put Ashish in the Ascent Car and took him to Hindu Rao Hospital where he was declared dead by the doctors.
(112) However, before coming to the merits of the testimonies of the various witnesses, I may observe that 'Last Seen' theory comes into St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 109 play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(113) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992]. (114) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 110 either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
(115) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 111 theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
(116) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(117) Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused Abhijeet Raj is trustworthy or not. If yes, the effect thereto. Coming first to the testimony of Rohit Negi (PW16) the relevant portion of his examination is reproduced as under: St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 112
"........ In the month of February 2012, I was working as a senior even executive in TIC (The Innuedo communication) Karol Bagh. Ashish Kumar Sharma was my close friend and I know him since 67 years.
I made a plan to meet my friend Ashish Kumar Sharma in a usual manner. On 26.02.2012 at about 8:158:30 PM Ashish Kumar Sharma met me at Hudson Lane, near NDPL office. We consumed some Whiskey and thereafter we move to towards the house of the Ashish Kumar Sharma at Khajuri Khas. We reached near his house at about 9:309:40 PM. Ashish Kumar went to his house and I was waiting for him in his car ACCENT of white color and he brought a shirt and some paranthas from his house. Thereafter Ashish made a call to Vijay, our common friend and we reached at the room of Vijay at Patel Chest, Christian colony, North campus but Vijay was not present at his room. Abhijeet, Ranjeet and Sagar were present at the room of the Vijay and they were consuming liquor there and we also consumed some liquor. Sagar was saying that he want to plan to buy a car REVA and thereafter a hot discussion was started between Abhijeet and Ashish Kumar Sharma about the cars. Thereafter they started quarrel with each other but due to our intervention they were separated. Meanwhile Nitin and Bharat also reached there. Thereafter Ashish Kumar Sharma went away from there at the room of his friend at Patel Chest. I along with Sagar came down from the room of Vijay. After 15 minutes Ashish Kumar also came there. Abhijeet also came down from the room of Vijay and again discussion took place between Ashish and Abhijeet and hot words exchange between them. We tried to St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 113 pacify both of them and thereafter Ashish and Abhijeet put their hands on each other and went away from the gali. I was waiting for them but after 10 minutes I had some suspicions and I followed both of them. I searched for both of them but they could not be traced out then I again returned back to the outside of the colony and Nitin met me and he informed me that Abhijeet caused the death of Ashish (Abhijeet ne Ashish ko mar diya). I ran towards the left side towards the nala and I found Ashish in injured condition and blood was oozing out from the back side of his head and from his eyes. I took out the keys of the car from his pocket and brought his car at the said place near nala. I along with Bharat and Nitin put Ashish in the car and took him to Hindu Rao Hospital but he was declared dead by the doctors. I made a call to the brother of Ashish about the incident. Police also came at Hindu Rao hospital. I also went to the police station Mukherjee Nagar with the car of Ashish. The shirt of Ashish which was brought by him from his house was also smeared with blood and some newspapers were also on the rear seat found smeared with blood. Police recorded my statement vide Ex.PW16/A bearing my signatures at point A. A photographer also came at the police station on the next morning and took photographs of the car and the articles. Police sealed said newspapers and shirt and sealed the same with a stamp and seized the car and the above said pullanda vide seizure memo Ex.PW16/B bearing my signatures at point A. Accused Abhijeet is present in the court today (correctly identified by the witness).St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 114
I can identify the above said articles if shown to me.
At this stage superdar Navdeep Sharma has produced ACCENT car bearing No. DL8CJ1289 and same is shown to the witness who correctly identified the same. Car is already EX P2. The car is also shown in the photographs Ex.PW14/A01 to Ex.PW14/A8 and the blood stained shirt and the newspapers are shown in the photographs Ex.PW14/A2, Ex.PW14/A3 and Ex.PW14/A8.
At this stage, MHC(M) has produced one open parcel No. 7 which was already open during the testimony of earlier witness and one shirt and newspapers having brown stains are taken out and same are shown to the witness who correctly identified the shirt and newspapers seized by the police from the rear seat of the car. Shirt is already EX P3 and newspapers are already EX P4.
At this stage, Ld. APP for the state, seeks permission to put leading questions to the witness about the manner of the incidence.
Heard, Permission granted.
It is wrong to suggest that Sagar was saying about the purchase of SUV vehicle. Vol. Sagar was saying that he was planning a purchase a REVA vehicle. It is correct that Sagar was saying about the purchase of SUV vehicle and thereafter Ashish told him and advised him to purchase the REVA. It is correct that thereafter a hot discussion was started between Abhijeet and Ashish about the qualities of the vehicles. It is correct that when Ashish returned back after 1015 minutes Abhijeet started abusing him after seeing Ashish and told him that "tu pehle bhi St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 115 mere sath behas kar chuka hai, aur apne apko jyada samajdhar samjhta hai aur aaj mein tujh ko jinda nahi chorunga". It is correct that after this Abhijeet took Ashish from there while discussing with him. It is correct that on suspicion when I followed them but both Abhijeet and Ashish did not meet me at the shop of Mama Pranthe wala. It is correct that when I was returning back, then I saw that Bharat and Nitin were running towards the nala. It is correct that I also followed Bharat and Nitin and while running Nitin informed me that Abhijeet had returned back alone and his hands and clothes were smeared with blood and Abhijeet was saying to him that he had committed the murder of Ashish. It is correct that thereafter we reached in front of Mandir near nala where Ashish was found in injured condition....."
(118) This witness has been crossexamined at length by the Ld. Defence Counsel wherein he has explained that he along with Ashish went to the house of Ashish from Hudson Lane in his case as Ashish wanted to pick up his shirt since they had planned to stay in the room of Vijay during the night and they had consumed Whiskey in the Accent Car of Ashish in Hudson Lane. He has also explained that the place from where they found Ashish lying was hardly five minutes walking distance from the room of Vijay and the corner of the nala/ drain was hardly four feet from the place where Ashish was lying. He has explained that Ashish had left with the accused Abhijeet Raj and it was after 20 minutes that they found Ashish in an injured condition. He has further explained St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 116 that he had his suspicion on Abhijeet because at that time both Ashish and Abhijeet Raj were heavily drunk and the manner in which they had quarreled few minutes ago he felt that it was not possible that the accused and the deceased would have gone away together of their own. He has further explained that it was hardly within 20 minutes that they had seen a Rickshawwala or perhaps a Thelewala running from the said direction who was stating that one of their person had been stabbed and was lying injured while simultaneously their another friend namely Nitin was shouting that it was the accused Abhijeet Raj who had come back and told him that he had stabbed Ashish on which they rushed to the spot and found Ashish totally smeared and smudged in blood. (119) Coming now to the testimony of Jai Mishra (PW20), the relevant portion of the same is reproduced as under:
"........ On 07.02.2012 I came to Delhi to appear for my examination papers of B.A. First year of IGNOU. I resided in the room of Manas, my resident, original resident of Assam for one day only and thereafter I shifted to the room of Vijay at Christian Colony, Patel Chest who was known to me since 2011. In the night of 25.02.2012, Rohit came to our room and on the next morning i.e. on 26.02.2012 he went away from there. On 26.02.2012 at about between 8 to 9 p.m. I received a call of Ankit, my friend, original resident of Dibru Garh, Assam and he called me for dinner and I went to the GTB Nagar, Metro Station to meet him and thereafter I alongwith Ankit went to the complex of Hudson lane to take dinner. At about 9.30 /10 p.m. we St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 117 returned back to the room of the Vijay where Vijay and and Bharat met us and Vijay was in the process of changing his clothes as he was to go to Gaziabad. Thereafter I again went to near Shani Mandir to see of my friend Ankit. I after some time reached at the room of Vijay and Vijay had already left the room , Sagar, Bharat and 2/3 persons were present there. Sagar was giving a party of purchase of a new mobile phone and he asked me for dinner and liquor but I told him that I had already taken my dinner and that I am not consuming any liquor. Thereafter Sagar gave some rupees to Bharat to purchase the liquor. I asked Bharat to provide key of his room as I wanted to sleep in his room as I was not taking any dinner and liquor in their company and I took key from the Bharat of his room and went to his room which was adjacent to the room of Vijay. I was watching movies in the Laptop of Bharat in his room. After some time Bharat also came in the room and he also joined me and in the meanwhile we heard some noise of hot discussion from the room of Vijay. Bharat went to see the quarrel and he also advised them not to quarrel and not to make noise. I made a call to Vijay that a quarrel took place in his room and there hot words being exchanged. Many public persons from the neighbouring houses also came there and thereafter the occupants of the room left the room when the neighbourhood persons objected to their behaviour. Thereafter Sagar, Bharat, Nitin, Ashish and Rohit went away downwards from the said room and Abhijeet and his friend remained in the room and the same was bolted from outside by Bharat or may be by Sagar. Abhijeet was shouting St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 118 from the room and also hitting the door from inside and was saying that he will not make any quarrel with Ashish. I opened the door from the outside and thereafter Abhijeet and his friend also went away from the room. I made a call to Vijay and informed him that all the occupants of the room had gone downward and thereafter I bolted the room from outside and went in the room of Bharat.
After 15 minutes I also went to the downwards I saw that one public person who may be a rickshaw puller came while running and he was saying that one person was lying there in injured condition. I, Bharat and Nitin ran towards the said directions and Rohit also joined us and when we reached near the Shani Mandir where we saw that Ashish was lying on the ground in injured condition and the blood was oozing out from his eye and Bharat told me to go to his room and informed Vijay. Thereafter I went away to the room of Ravish and remained there. After some time I received call of Bharat and he informed me that Ashish was declared dead. Abhijeet is present in the court today (witness correctly identified accused Abhijeet).
At this stage ld. APP seeks permission to put leading questions to the witness as he is not stating about all the facts. Heard. Allowed.
It is correct that room of the Vijay was situated at B47, Christian Colony, Patel Chest. I cannot say whether it was the room no. 6. It is correct that when I returned back to the room, Sagar Abhijeet and Ranjit were sitting in the room and they were consuming the liquor and Sagar offered liquor to me and I refused St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 119 because I have already taken my dinner. It is correct that after hearing the noise, int he room of the Vijay, I alongwith Bharat reached there and Bharat entered int the room where Ashish and Abhijeet were abusing to each other. It is correct that Abhijeet and Ranjit were confined by us in the room . I do not remember whether I alongwith Nitin, Ashish, Rohti, Bharat and Sagar came down from the building and standing in the gali. I cannot say whether Ashish went to Christian Colony to meet his friend and Ashish returned back after some time and he was also standing with us in the gali. It is correct that accused Abhijet was having a dumble in his hand and he was concealing the same at his back.
I do not remember whether Abhijeet was abusing Ashish while stepping down from the stairs. It is correct that I have seen the dumble in the hand of Abhijeet and I went down and snatched the dumble from the hand of Abhijeet and kept the same in the room of Vijay. VOL. I have seen the dumble in the hand of Abhijeet from our balcony and I came down immediately and snatched the dumble from the hands of Abhijeet and told Bharat and other persons that he could cause the injuries by said dumble to Ashish. It is wrong to suggest that I came down after putting the dumble in the room of Vijay. Vol. after some time I came down . I do not remember when I came down and all the persons were standing in the gali and Abhijeet was keeping his hand on the shoulder of the Ashish and were saying that he would talk with Ashish in the corner and thereafter both went away towards Christian Colony. Vol. I was at a distance at that time. It is correct that I alongwith Nitin, Bharat, Sagar and Rohit seated on the stairs in the gali. I do not remember St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 120 whether Rohit said that "un dono mei jhagra na ho jaye" and thereafter Rohit went away towards the gate of Christian Colony, Patel Chest. I do not remember whether Sagar was under the influence of liquor and so he went to his room. It is wrong to suggest that I alongwith Bharat and Nitin was standing out of the gate of the Christian Colony, Vol. Bharat and Nitin were standing on the road in front of the gate of Christian Colony while I was standing just at the gate of the Christian Colony. It is wrong to suggest that I had told the police that the accused Abhijeet told me Bharat and Nitin while we were standing on the road in front of the gate of Chirstan Colony that he had killed Ashish. Vol. I had told the police that I was at a little distance from Bharat and Nitin who were standing on the road in front of the gate of Christian Colony when I saw Abhijeet come to them with a blood stained knife in his hand and I saw him talking to Bharat and Nitin but what he was telling them I could not hear. I had seen Abhijeet with the knife in his hand which knife was blood stained and his hand also was having blood but I am not sure about his clothes, if they were also blood stained. I do not recollect whether if while running Nitin had told Rohit that Abhijeet had informed him that he had killed Ashish. Vol. I do not recollect because I was also running at that time being extremely disturbed because at that time one public person who appeared to be rickshaw wala or a thelawala came from the nala side in a nervous condition and told us "Aap ka ek adami waha par gira para hai" on which we all including myself started running towards the direction......."St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 121
(120) This witness Jai Mishra has also been crossexamined by the Ld. Defence Counsel wherein he has explained that he was not known to deceased Ashish prior to the incident and he had seen him for the first time on the date of incident. According to the witness, he was not present at the time when the alleged quarrel/ Jhagra started and has explained that when the quarrel was going on, everybody in the building had collected there and threatened the boys to call the police. He has also explained that all the boys then left the room and he saw them going and it was after 1520 minutes of everybody leaving the room that he saw a thelewala running from the side of nala. He has denied the suggestion that he did not see any blood stained knife in the hands of Abhijeet since it was not possible for him to see the same from a distance. He has explained that he could see the knife because there was sufficient light. (121) A combined reading of testimonies of both theses witnesses Rohit Negi and Jai Mishra would show that they were the persons who were present at the spot of the incident and both of them had seen the deceased being taken away by the accused Abhijeet. Rather, Jai Mishra has proved that when he saw Abhijeet Raj coming back his hands were stained with blood though in the Court he has made vital improvement and stated that he had also seen a knife in the hand of Abhijeet Raj while he had come back. In fact Jai Mishra in his earlier statement stated that he had also seen a dumble Ex.P1 in the hand of Abhijeet Raj while they were quarreling which he had snatched and had kept in the room of Vijay. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 122 What is important is that Jai Mishra had intervened to stop the quarrel and after he and Rohit Negi had separated both of them and Nitin had locked Abhijeet Raj in the room of Vijay, it was Jai Mishra who had opened the the door of the room because Abhijeet Raj was repeatedly knocking the door and assured him that he would not quarrel with Abhijeet Raj any longer and it was thereafter that Abhijeet Raj went downstairs and again it was Jai Mishra who noticed that Abhijeet Raj was carrying a dumble in his hand which he was hiding behind him but he immediately snatched it from the hands of Abhijeet thinking that Abhijeet may harm Ashish. Here, I may note Vijay Kumar (PW21) has confirmed that dumble Ex.P1 belonged to him which was kept in his room which the police seized from his room vide memo Ex.PW5/A bearing his signatures. Further, both Rohit Negi and Jai Mishra saw Abhijeet then taking Ashish with him and walking towards nala near the Temple and after about 1015 minutes it was Jai Mishra who then saw the accused Abhijeet Raj coming back from that direction with his hands stained in blood. Further, Rohit Negi, Jai Mishra, Nitin Kumar and Bharat have also proved that it was a rickshawwala or perhaps a thelewala who told them that one of their friends was lying injured. They have established that this person (rickshawwala) was coming from the same direction in which Rohit and Jai Mishra had seen Abhijeet Raj and Ashish going i.e. towards the nala and when they rushed to that direction they found Ashish lying in a pool of blood, still alive but gasping. The argument of St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 123 the defence that some other person could have been the author of the crime does not cut much ice for the simple reason that the incident had taken place within a span of 1015 minutes of the accused being last seen with the deceased and walking in the direction towards nala where deceased was found injuries within hardly 1015 minutes and the accused Abhijeet Raj does not explain when he parted company of the deceased Ashish. This being the background, the possibility of some other person being the author of crime appears remote, for there is no reason why Jai Mishra and Rohit Negi who have no history of animosity with Abhijeet Raj would falsely implicate him in case. Jai Mishra had come to Delhi just 18 days prior to the incident and was not known to the accused or the deceased. He has explained that he was introduced to the deceased Ashish for the first time on the date of the incident. He is a student who was preparing for his examination and was sharing the room of Vijay. There is no reason to doubt his version which appears to be credible and reliable and finds independent corroboration from the testimonies of other witnesses and also confirmation from the circumstantial evidence on record.
(122) The testimony of Jai Mishra (PW20), a student who had come on Delhi about 18 days prior to the incident and staying in the room of Vijay for preparing for his entrance exams, is very clear. At the time of the incident these boys including Ashish, Abhijeet Raj, Nitin, Sagar and Bharat were all present in the adjoining room of Vijay and after St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 124 sometime Vijay had left the spot and they were having a drinking session while Jai Mishra had come back to his room and later on it was only Sagar, Bharat, Nitin and Rohit who were present in the other room. One of the facts which all the witnesses have unanimously established is that there was a hot talk which had occurred in the room and Vijay and it was Jai Mishra and Rohit Negi who have explained that this was on the issue of cars i.e. which car was giving better performance and Nitin had to intervene as the voices of Abhijeet, Ashish and others in the room was causing a disturbance to other residents of adjoining rooms and he scolded and separated them but after some time there was again a hot talk on which they were asked to go down. According to Jai Mishra initially Abhijeet was locked inside the room but he was continuously knowing knocking the door and assured not to fight with Ashish on which he (Jai Mishra) opened the door. It is an admitted fact that at the time of the incident both the accused and also the deceased were intoxicated having voluntarily consumed alcohol.
(123) In so far as witness Vijay Kumar (PW21) is concerned admittedly he was not present at the time of the time. It was his room which was used by his friends including the accused and the deceased who had gathered there and had a drinking session. He is a witness of hearsay and even otherwise has supported his earlier version given to the police. Similarly, Sagar (PW22), Nitin (PW27) and Bharat (PW31) have also not supported their earlier versions to the extent that they had seen St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 125 Abhijeet Raj taking Ashish Sharma with him after the quarrel though they have supported the earlier version that they had gathered at the spot and were also having drinks together and understandably so. These boys/ witnesses i.e. Sagar, Vijay Kumar, Nitin and Bharat are very close friends of Abhijeet Raj and they all belonged to one group whereas the deceased Ashish was a friend of Rohit Negi with Vijay who was not present at the time of the incident as a common friend. It is obvious that to save their own friend Abhijeet Raj from legal punishment in the Court they have not supported their earlier versions that it was Abhijeet Raj who had taken Ashish with him. On the other hand, Rohit Negi in his first statement to the police soon after the incident on the basis of which FIR had been registered, has specifically mentioned the details of the incident including the fact that he had seen the accused Abhijeet Raj taking Ashish with him which aspect has been confirmed in the Court. Hence, prompt registration of FIR rules out the possibility of tutoring or false implication and lends authenticity and credibility to the testimony of witness Rohit Negi which finds independent corroboration from the testimony of Jai Mishra.
(124) The version given by him does not appear to be probable and credible, rather it is the version given by the prosecution witnesses Rohit Negi and Jai Mishra which is more probable and credible. The defence of the accused that the deceased could have been stabbed by some other person who had called Ashish downstairs and had taken the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 126 deceased with him does not appear probable. Though the Investigating Officer has committed a serious lapse and should have collected the electronic details of various witnesses particularly the accused and the deceased who had all gathered at the spot which he has failed to to, yet it was open to the accused Abhijeet Raj himself to have called for electronic record to prove that some call was received by Ashish Sharma pursuant to which he moved away from the spot which the accused has failed to do.
(125) Therefore, under these circumstances, I hereby hold that there is a proximity between the last seen and the time of death of the deceased. It stands established that the deceased Ashish was last seen alive in the company of the accused Abhijeet Raj who took Ashish with him towards gate of Christian Colony, Patel Chest and within 1015 minutes Ashish was found lying injured in a pool of blood at the same place where Abhijeet was found to be taking him and was still alive after which he was shifted in a car and taken to the hospital where Ashish was declared dead. It was now for the accused Abhijeet Raj to have explained when he parted company of the deceased. The accused is the best person who could have offered an explanation with regard to the fact as to when he parted with the company of the deceased without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 127 Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. However, the accused Abhijeet Raj has failed to explain when he parted company with the deceased and where. When this evidence was put to the accused in his statement under Section 313 Cr.P.C. he has not been able to give any explanation or justification.
(126) In view of the above, I hereby hold that the fact that the deceased Ashish Sharma was last seen alive in the company of the accused Abhijeet Raj is highly determinative of the guilt of the accused. Recovery of weapon of offence pursuant to the disclosure:
(127) The case of the prosecution is that soon after the incident the accused Abhijeet Raj had absconded and had gone back to his native village at Motihari and it was there that the police team had been sent which was headed by SI Sanjay Tomar (PW17) who went to Motihari, Bihar along with HC Santosh (PW18) and from there went to the house of accused and apprehended him on 3.3.2012. Thereafter the accused Abhijeet Raj was brought back to Delhi after seeking transit remand from the competent court and in Delhi the accused was interrogated and his St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 128 disclosure statement Ex.PW17/C was recorded wherein he disclosed that he had thrown the weapon of offence i.e. the knife at Road near Agra. On 7.3.2012 pursuant to his disclosure statement the accused led the police party to Tundla Road which is about 15 kilometers ahead from Agra and then led the police team to the fields near Kalpana Hotel situated on the main highway NH2 and from the wheat fields the accused Abhijeet Raj got recovered a knife and its seizure has been duly proved by SI Ranbir Singh (PW19) who had gone there for purposes of investigations along with other members of the police party.
(128) Ld. Defence Counsel has vehemently argued that the recovery of the knife pursuant to the disclosure statement of the accused is inadmissible in evidence since the said recovery has not been affected in the presence of public witnesses and even otherwise the place of recovery is an open place accessible to all and hence the recovery cannot be relied upon.
(129) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 129 that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(130) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(131) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(132) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 130 particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (133) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "......Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 131 the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 132 very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(134) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them"
are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 133 he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it.
Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence...".
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 134 (135) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evidence Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(136) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 135 by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(137) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 136 confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible.
(138) Applying the settled principles of law to the facts of the present case, I may observe that prior to the arrest of the accused Abhijeet Raj and his disclosing to the members of the police party during interrogation that he had thrown the knife 15 kilometers away from Agra on the Tundla Road near Kalpana Hotel, nobody was aware of Firstly what was the weapon used and secondly what happened to the weapon (knife) thereafter. It was only after the accused made a disclosure to the police that firstly they came to know that the weapon of offence was a knife and Secondly that the accused had thrown it somewhere in the fields adjoining the Highway near Agra and it was the accused Abhijeet Raj who after his arrest and after disclosing these facts to the police then took the police party to the fields about 15 kms from Agra on Tundla Road near Kalpana Hotel and actually got recovered the knife from that place (which knife as per the FSL Report is confirmed to be having Human Blood).
(139) The Ld. Defence Counsel has vehemently argued that this recovery is not admissible in evidence keeping in view the manner in which the same has been effected and particularly keeping in view the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 137 fact that the Investigating Officer has failed to join the public witnesses in the police party at the time the recovery of effected. The Ld. Addl. PP for the State has submitted that merely because the police party has not joined the public persons will not render this recovery as doubtful since the place from where the recovery has been effected is hundreds of kilometers away from Delhi in a different state which was during day time. He has also pointed out that the forensic result has confirmed Human Blood on the Knife Ex.P6 so got recovered by the accused. (140) I have considered the rival contentions. In so far as the arguments of the Ld. Defence Counsel that no public witnesses have been joined during the investigations and also the argument that the knife had been recovered from an open area are concerned, I may observe that the Hon'ble Supreme Court has in numerous cases observed that police officers are competent witnesses. It is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in the case of Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. Further, it was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish Vs. State, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 138 reported in 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in the case of A. Bhai Vs. State reported in AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, least they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
(141) Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of knife at the instance of accused Abhijeet Raj. Their testimony cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, reported in 1996 (3) SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khima Vs. The State of Saurashtra, reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. (142) I may observe that non joining of public witnesses is only a Rule of Prudence and not a Rule of Law. Even otherwise in the case of Narpal Singh & Ors. Vs. State of Haryana reported in AIR 1977 SC St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 139 1066 it has been observed by the Hon'ble Supreme Court that normally the Investigating Officer should be slow to associate any eye witness with the recovery as it partakes of an attempt on the part of the investigating officer to make the witness omnibus. I may also observe that the requirement of law is not that the place was accessible to others or not but whether it was visible to others and if not then it is immaterial that the place of concealment is accessible to other. [Ref.: State of HP Vs. Jeet Singh reported in AIR 1999 SC 1293 and Tahir & Others Vs. State reported in 87 (2000) DLT 207 (Delhi) (DB)].
(143) Applying these settled principles of law to the facts of the present case it is evident that the place from where the knife is recovered is an open field with growing crops situated on Highway near Kalpana Hotel and it was from the said area that the accused had got the knife recovered. At no point of time the police team was aware of the area and spot the accused claimed he had thrown the knife and from where he would get the same recovered. The spot of recovery is a private property i.e. fields with growing crops which was belonged to somebody. Keeping in view the easy and convenient access to these open field with growing crops which was near the Highway, the accused perhaps found it a convenient disposal spot for the weapon of offence. The spot from where the knife has been recovered, no doubt, is an open field but there is nothing on record to show that it was visible to public or anybody else could have thrown the same at the particular place. Rather, on the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 140 contrary the knife have been recovered from the an area which is a field with growing crops and nobody could have seen the knife at that place, rather the visibility of knife to any person not aware of its presence at the spot was not there. Further, the said knife is also confirmed to be having Human Blood Stains.
(144) Therefore, under these circumstances, I hereby hold that the recovery of the knife at the instance of the accused Abhijeet Raj is admissible in evidence and this portion of the disclosure statement of the accused Abhijeet Raj which led to the recovery of weapon of offence i.e. Knife Ex.P6 is admissible in evidence and this recovery of knife is a strong pointer towards the guilt of the accused Abhijeet Raj. Subsequent conduct of the accused:
(145) The case of the prosecution is that after committing the murder of the deceased Ashish, the accused Abhijeet Raj hurriedly fled away from Delhi while leaving his sling bag/ pitthu bag which he had carried to the room of Khit Sagar Patel behind and thereafter went to his native village at Motihari Bihar from where he was apprehended, which conduct of the accused is relevant. Why he did do that? What was the urgency involved? Why he conceal himself if he did not do anything?
How his sling bag containing his articles i.e. driving licence; two SIM cards (One of TATA and other was of VODAFONE); ten Photographs of Abhijeet; one Memory Card of 2GB; one Mobile Phone make NOKIA, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 141 Black Colour; one SIM of UNINOR; one Card Holder of black colour; seven visiting cards of Abhijeet Raj; one TITAN Wrist Watch; one Metro Train Smart Card; one Health Fitness Slip; one Small Knife; two pens; one goggle case, coins of Rs.1/; one Gamcha with Strips; one Nokia Phone Charger; one Black Colour Diary on the first page of which Abhijeet Raj was written in English which was a Spiral Diary, in which with red pen '20 ways to kill with your bare hand' written on the same (all collectively Ex.P9) were found in the room of Khir Sagar which bag and articles were handed over to the police by Khir Sagar within a few hours of the incident and seized vide Ex.PW22/A?
(146) In this regard, I may observe that as per the provisions of Section 8 of the Indian Evidence Act, 1872 any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
(147) The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. (148) It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 142 whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
(149) In the present case, it is writ large that soon after the incident the accused Abhijeet Raj rushed back to his native village at Motihari Bihar and concealed himself. In case if he was innocent and was not involved in the incident at all, there is no reason why he would have gone to his native village so suddenly and hurriedly that while leaving the spot of the incident he did not even bother to pickup his sling bag/ pitthu bag containing his articles (Ex.P9) which was lying in the room of Khir Sagar Patel (PW22). When this incriminating material was put to the accused in his statement under Section 313 Cr.P.C. no explanation has been given by him in this regard. The other boys who were present at the spot have proved that they had taken the injured to the hospital and gave their statements to the police whereas it is Abhijeet Raj who does not say so. Where was he at that time when others were rushing the deceased to the hospital? Why did he go to his native village? What was the hurry St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 143 that he did not even pickup his bag from the room of Khir Sagar while leaving which bag had his mobile phone and Metro Card? He is the only one who had absconded from the spot and not the other boys and it is this conduct of the accused Abhijeet Raj which raises a finger of suspicion upon him and made him a suspect in the eyes of law coupled with the last seen evidence.
(150) I may also observe that on the same date of incident i.e. 27.2.2012 within a few hours of the incident a blue colour pitthu bag was handed over to the Investigating Officer which bag was left by the accused Abhijeet Raj in the room of Khir Sagal Patel (PW22), which was seized by the Investigating Officer vide memo Ex.PW22/A bearing the signatures of Khir Sagar Patel at point A which signatures he duly admits. On checking the said bag was containing driving licence of Abhijeet; two SIM cards (One of TATA and other was of VODAFONE); ten Photographs of Abhijeet; one Memory Card of 2GB; one Mobile Phone make NOKIA, Black Colour; one SIM of UNINOR; one Card Holder of black colour; seven visiting cards of Abhijeet Raj; one TITAN Wrist Watch; one Metro Train Smart Card; one Health Fitness Slip; one Small Knife; two pens; one goggle case, coins of Rs.1/; one Gamcha with Strips; one Nokia Phone Charger; one Black Colour Diary on the first page of which Abhijeet Raj was written in English which was a Spiral Diary, in which with red pen '20 ways to kill with your bare hand' were written. The photographs of the above bag along with the photographs of St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 144 its contents are already Ex.P9 are on record whereas the original are lying deposited in the Malkhana.
(151) There is an important aspect which has not been investigated at all and to my mind should not have been ignored by the Investigating Agency. It is the case of the prosecution and has also emerged from the evidence on record that within a few hours after the incident and pursuant to the registration of FIR on the statement of Rohit Negi, it was Khir Sagar Patel a friend of the accused Abhijeet Raj with whom Abhijeet was sitting and having a drinking session, who handed over a sling bag/ pitthu bag belonging to the accused Abhijeet Raj who had escaped by that time to the Investigating Officer. In the said bag there was a spiral diary of black colour in which it was written with Red Ink "20 ways to kill with your bare hand". Further, in the diary the manner in which persons could be killed with bare hands were spelled out and specified. Why no investigations have been conducted by the Investigating Officer on this handwritten portion of the Spiral Diary of Abhijeet Raj which could have provided an insight into the mind of the accused Abhijeet Raj and probably an additional evidence. This indeed is again a serious lapse. (152) Therefore, I hereby hold that the conduct of the accused Abhijeet Raj particularly his subsequent conduct in hurriedly leaving the spot of the incident so much so that he did not even bother to pickup his sling bag containing his important articles like mobile phone, charger, metro cards etc. which conduct is relevant and a strong pointer towards St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 145 his guilt.
Motive of the Crime:
(153) The case of the prosecution is that even prior to this incident there was an incident of altercation between the accused and the deceased which had got aggravated and hence when on the date of the incident again there was an altercation between them the accused was so enraged that every time the deceased tried to exhibit his superiority that he decided to kill him. Hence, at that time while the accused and deceased were sitting with their friends and having a drinking session, there was a discussion between the friends over the quality of the cars i.e. which car gives a better performance (i.e. REVA or SUV) and the repeated insistence of the deceased Ashish on a particular company irritated the accused Abhijeet Raj on which both Ashish (deceased) and Abhijeet Raj (accused) had an altercation. Initially they were separated by their friends and while Ashish downstairs, Abhijeet Raj was locked in the room for sometime but when he repeatedly knocked the door and stated that he would not fight with Ashish the door was opened and Abhijeet came downstairs and he was found to be hiding a dumble which was noticed by Jai Mishra who took away this from Abhijeet. Thereafter both Ashish and Abhijeet were seen walking together in the direction where after ten minutes the body of Ashish was found lying in a pool of blood in a gasping condition. Abhijeet was seen walking back from the said St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 146 directions in a distorted condition with hands stained in blood claiming that he had killed Ashish.
(154) In this regard, I may observe that the Motive has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(155) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 147
(156) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused.
[Ref.: IV (2012) SLT 257].
(157) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(158) Further, even if the motive to commit the crime is not fully established, even then, the same would not fatal the case of prosecution in as much as once the prosecution case stands proved from the other evidence, if found to be truthful and reliable. This being so, motive assumes secondary role. For holding this view, I am fortified by the judgments in the cases of Mehr Law Arora and Anr. reported in AIR 1947 SC 1593 and in the case of Surender Narayan @ Manu Pandey St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 148 Vs. State of U.P. reported in AIR 1988 SC 192.
(159) Applying the settled principles of law to the facts of the present case, I may observe that the motive so attributed by the prosecution is very weak. Even otherwise Motive is not relevant in for criminal offences. It is an admitted case of both the parties that the deceased as well as the accused were into a drinking session when they had entered into a dispute with regard to the purchase of the cars and which car was of a better quality and was giving better performance resulting into murder of the deceased. There is no evidence on record that even previously prior to this incident there was a dispute between the accused and the deceased as claimed by the prosecution and this fact that the accused had decided to kill the deceased due to his previous disagreements though claimed and alleged, does not stand established. Under these circumstances it is very difficult to conclude that the motive to kill the deceased was that only because the deceased had dared to disagree with the accused Abhijeet Raj before his friends and hurt his ego. Rather, it is a case where at the spur of the moment on account of aggressive drinking session the accused appears to have lost control over his senses and in that process had killed the deceased. (160) Hence, under the given circumstances, I hereby hold that this is a case where the motive so claimed by the prosecution has not been established and proved, rather no motive has been brought forward by the prosecution at all.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 149 Whether the provisions of Section 302 or 304 IPC would apply:
(161) The case of the prosecution is that the manner in which repeated injuries had been inflicted upon the deceased brings the case within the ambit of Section 302 Indian Penal Code whereas it is the case of the accused that under no circumstances the accused is said to have intended the incident and even otherwise the prerequisites of Section 302 Indian Penal Code have not been fulfilled and at the worse the case of the deceased is covered in Exception 4 of Section 300 Indian Penal Code.
(162) Before coming to the merits of the arguments raised, I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code.
There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 150 selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 151 upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97].
(163) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).
(164) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 152 death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note: All murders are culpable homicide but not viceaversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45).
(165) It is submitted by the Ld. Defence Counsel that the provisions of Section 302 IPC has no application as the assault was made during the course of sudden quarrel and Exception 4 of Section 300 IPC applies whereas the plea of the Ld. Addl. Public Prosecutor is that the manner in which repeated injuries have been inflicted upon the deceased, St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 153 is indicative of his intent.
(166) For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. While in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 154 deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 155 the provision means unfair advantage.
(167) Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. [Ref.: Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in 16 (2008) SCC 769] (168) To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not perse palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. [Ref.: Sukhbir St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 156 Singh Vs. State of Haryana reported in 2000 (3) SCC 327: AIR 2002 SC 1168 followed by our own High Court in the case of Manoj Kumar & Ors. Vs. The State in Criminal Appeal No. 638/2009 decided on 27.3.2012].
(169) Applying the settled principles of law to the facts of the present case I may observe that the case of the accused does not fall in any of the exceptions provided under Section 300 Indian Penal Code not even Exception 1 or Exception 4 since there is no sudden or grave provocation. The dispute or verbal altercation was on the difference of opinion between the accused and the deceased on the performance of cars and there was no instigation or provocation so offered by the deceased. Further, it is also not a case upon sudden quarrel where the accused has not been shown to have acted in a cruel manner. On account of the accused and deceased getting aggrieved with each other, they were separated and accused was locked in the room of Vijay but he repeatedly knocked and pleaded to be left and when left on assurance he walked out of the room by hiding a bumble behind him which Rohit Negi snatched from him. He then did not stop at this and followed Ashish and walked away with him towards gate of Christian Colony, Patel Chest by putting his arms around his neck and it was after 1015 minutes that he was seen coming back from the same direction with hands stained in blood and when other boys rushed towards the said direction they found Ashish lying smeared in blood. As many as fifteen injuries were found on the St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 157 body of the deceased on which eleven were incised wounds (given by knife) on vital parts.. The ct was committed most brutally and the intent stands confirmed.
(170) Another argument raised by the defence is that the accused Abhijeet Raj was under the influence of liquor at the time of incident and was incapable of knowing the nature of the act or that what he was doing was wrong or contrary to law. In this regard I may observe that the argument so advanced deserves outright rejection since the provisions of Sections 85 Indian Penal Code provides that Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will. Further, the provisions of Section 86 of Indian Penal Code provide that in cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will. It is clear from the above that the statutory law of this land protects only such offenders who have been intoxicated without their knowledge or against their will. Impliedly the sections do not come to the aid of such an offender who voluntarily St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 158 consumes alcohol and then commits the offence. These provisions are based upon the sound principle of Justice, for a person cannot be allowed to take advantage of his own wrong and hence the accused Abhijeet Raj cannot turn around to claim that his acts were outcome of whatever he was consuming being freely available in the market. (171) The brutality is writ large on the face of it in view of the fact that as many as eleven incised wounds (out of fifteen injuries) have been repeatedly inflicted on the body of the deceased (on vital portions) causing his death almost instantaneously. Therefore, I am convinced that it is this brutality which takes the case out of the ambit of section 304 IPC and confirms the requisite mensrea of section 302 Indian Penal Code. This being the background, I hereby hold that the prosecution has been able to prove and establish the intent and knowledge (as contemplated under Section 299 IPC) of the accused Abhijeet Raj to commit murder of Ashish Sharma for which the accused Abhijeet Raj is hereby held guilty of the offence under Section 302 Indian Penal Code. FINAL CONCLUSIONS:
(172) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 159
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(173) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record the following aspects stand established:
➢ That Ashish Kumar Sharma (deceased) and Rohit Negi (complainant) were close friends.St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 160
➢ That on 26.02.2012 at about 8:158:30 PM Ashish Kumar Sharma (deceased) met Rohit Negi at Hudson Lane, near NDPL office where they consumed some Whiskey and thereafter they moved towards the house of Ashish Kumar Sharma at Khajuri Khas.
➢ That both Ashish Kumar Sharma and Rohit Negi reached near his (Ashish) house at about 9:309:40 PM after which Ashish went to his house while Rohit Negi waited for him in his car ACCENT of white color and after some time Ashish brought a shirt and some paranthas from his house.
➢ That Ashish made a call to Vijay, their common friend after which both Ashish and Rohit Negi reached at the room of Vijay at Patel Chest, Christian colony, North campus but Vijay was not present at his room.
➢ That Abhijeet Raj (accused), Ranjeet and Sagar were already present at the room of Vijay where they were consuming liquor there and they also consumed some liquor there.
➢ That Sagar was saying that he was planning to buy a car make REVA after which a hot discussion started between Abhijeet and Ashish Kumar Sharma about the cars and they started quarreling with each other.
➢ That Abhijeet started abusing Ashish and told him that "tu pehle bhi mere sath behas kar chuka hai, aur apne apko jyada samajdhar samjhta hai aur aaj mein tujh ko jinda nahi chorunga".St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 161
➢ That due to the intervention of other friends both Ashish and Abhijeet Raj were separated.
➢ That all the occupants of the room left the room when the persons staying in the neighbourhood objected to their behaviour.
➢ That thereafter Sagar, Bharat, Nitin, Ashish and Rohit went away downstairs from the said room while Abhijeet and his friend remained in the room and the same was bolted from outside.
➢ That Abhijeet was shouting from the room and also hitting the door from inside and was saying that he would not make any quarrel with Ashish.
➢ That thereupon Jai Mishra opened the door from the outside after which Abhijeet and his friend also went away from the room.
➢ That Abhijeet was having a dumble in his hand and was concealing the same behind him which Jai Mishra had seen.
➢ That Jai Mishra came down immediately and snatched the dumble from the hands of Abhijeet and told Bharat and other persons that he (Abhijeet Raj) could cause injuries by said dumble to Ashish.
➢ That thereafter the accused Abhijeet Raj took Ashish Kumar with him by putting his hand on Ashish Kumar and both of them were seen going towards the gate of Christian Colony near the nala.
➢ That Jai Mishra had seen the accused Abhijeet Raj coming with his hands stained in blood.
➢ That while Rohit Negi, Jai Mishra, Nitin and Bharat were standing St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 162 outside the room, one public person who appeared to be rickshaw wala or a thelawala came from the nala side in a nervous condition and told them "Aap ka ek adami waha par gira para hai" on which they all started running towards the direction.
➢ That they all reached in front of Mandir near nala where Ashish was found in an injured condition and blood was oozing out from the backside of his head and from his eyes.
➢ That Rohit Negi took out the keys of the car from his pocket and brought his car at the said place near nala and he along with Bharat and Nitin put Ashish in the car and took him to Hindu Rao Hospital but he was declared dead by the doctors.
➢ That the statement of Rohit Negi was recorded on which the rukka was prepared at 6:00 AM and the FIR was registered at 6:15 AM in which Abhijeet Raj has been specifically named.
➢ That within few hours of registration of FIR and prior to arrest of the accused Abhijeet Raj, Khir Sagar Patel handed over to the Investigating Officer a blue colour sling bag/ Pitthu bag belonging to the accused Abhijeet Raj which the accused had left in his room.
➢ That on checking the said bag was containing driving licence of Abhijeet; two SIM cards (One of TATA and other was of VODAFONE); ten Photographs of Abhijeet; one Memory Card of 2GB; one Mobile Phone make NOKIA, Black Colour; one SIM of UNINOR; one Card Holder of black colour; seven visiting cards of St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 163 Abhijeet Raj; one TITAN Wrist Watch; one Metro Train Smart Card; one Health Fitness Slip; one Small Knife; two pens; one goggle case, coins of Rs.1/; one Gamcha with Strips; one Nokia Phone Charger; one Black Colour Diary on the first page of which Abhijeet Raj was written in English which was a Spiral Diary, in which with red pen '20 ways to kill with your bare hand' were written.
➢ That the said bag was taken into possession in the presence of Khir Sagar Patel who has admitted his signatures on its seizure memo.
➢ That on 27.2.2012 SI Sanjay Tomar along with Ct. Deepak, Ct.
Avdesh and HC Santosh had gone to the native village of the accused Abhijeet Raj at Motihari, Bihar.
➢ That on 03.03.2012 the accused Abhijeet Raj was arrested from Motihari, Bihar and after taking obtaining Transit Remand from the competent Court the accused Abhijeet Raj was brought to Delhi on 05.03.2012 and was produced before the Investigating Officer.
➢ That the accused Abhijeet Raj was then interrogated at length and his disclosure statement was recorded.
➢ That on 07.03.2012 pursuant to his disclosure statement the accused Abhijeet Raj led the police party to Agra at Tundla Road which is about 15 km ahead of Agra and then led the police to fields near Kalpana Hotel situated on the main highway i.e. NH2. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 164 ➢ That the accused Abhijeet Raj then led the police party to wheat fields and from the corner of the field, the accused got recovered a knife which was then taken into possession.
(174) There is a proximity between the last seen and the time of death of the deceased and it stands established that the deceased Ashish was last seen alive in the company of the accused Abhijeet Raj who took Ashish with him towards gate of Christian Colony, Patel Chest and within 1015 minutes Ashish was found lying injured in a pool of blood at the same place where Abhijeet was found to be taking him and was still alive after which he was shifted in a car and taken to the hospital where Ashish was declared dead. The accused Abhijeet Raj has failed to explain when he parted company of the deceased. The subsequent conduct of the accused Abhijeet Raj in hurriedly fleeing away from Delhi by leaving his belongings in the room of Khir Sagar Patel including his watch, mobile phone, Metro Card, SIM cards etc. provides corroboration and confirmation to the prosecution version pointing towards the guilt of the accused.
(175) The Medical Evidence establishes that the death of Ashish was caused due to shock and haemorrhage consequent to stab injuries and that the Injury no. 15 is individually sufficient to cause death in ordinary course of nature. The Forensic Evidence establishes the spot of incident from where the various exhibits were lifted and Human Blood has been St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 165 confirmed to be present on the weapon of offence i.e. knife which was got recovered by the accused Abhijeet Raj.
(176) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (177) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (178) Therefore, I hereby hold that the prosecution has been able to prove and establish the intent and knowledge (as contemplated under Section 299 IPC) of the accused Abhijeet Raj to commit murder of St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 166 Ashish Sharma for which the accused Abhijeet Raj is hereby held guilty of the offence under Section 302 Indian Penal Code. (179) Be listed for arguments on sentence on 11.7.2014.
Announced in the open court (Dr. KAMINI LAU) Dated: 5.7.2014 ASJII(NW)/ ROHINI St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 167 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 91/2013 Unique Case ID No. : 02404R0151252012 State Vs. Abhijeet Raj S/o Akhilander Kumar Sinha R/o Shiv Sadan in front of Anand Mkt. Balua Chowk Motihari East, Champaran, Bihar (Convicted) FIR No.: 66/12 Police Station : Mukherjee Nagar Under Section: 302 Indian Penal Code Date of conviction: 5.7.2014 Arguments concluded on: 21.7.2014 Date of sentence: 24.7.2014 APPEARANCE: Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convict Abhijeet Raj in Judicial Custody with Sh. Jaspreet Rai Advocate.
ORDER ON SENTENCE:
As per the allegations, on the intervening night of St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 168 26.2.201227.2.2012, between 11.30 PM to 12.15 AM, at Open Road, near Hanuman Mandir, Vijay Nagar, Delhi the accused Abhijeet Raj caused the death of Ashish by inflicting injuries upon him.
On the basis of the testimonies of the various prosecution witnesses particularly the complainant Rohit Negi and Jai Mishra and also on the basis of testimonies of various other witnesses, the medical, forensic and circumstantial evidence on record this Court vide its detail judgment dated 5.7.2014 held the accused Abhijeet Raj guilty of the offence under Section 302 Indian Penal Code.
Vide the detail judgment this Court has observed that the prosecution has been able to prove and establish that Ashish Kumar Sharma (deceased) and Rohit Negi (complainant) were close friends; that on 26.02.2012 at about 8:158:30 PM Ashish Kumar Sharma (deceased) met Rohit Negi at Hudson Lane, near NDPL office where they consumed some Whiskey and thereafter they moved towards the house of Ashish Kumar Sharma at Khajuri Khas; that both Ashish Kumar Sharma and Rohit Negi reached near his (Ashish) house at about 9:309:40 PM after which Ashish went to his house while Rohit Negi waited for him in his car ACCENT of white color and after some time Ashish brought a shirt and some paranthas from his house; that Ashish made a call to Vijay, their common friend after which both Ashish and Rohit Negi reached at the room of Vijay at Patel Chest, Christian colony, North campus but Vijay was not present at his room. Further, the prosecution has been able St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 169 to establish that Abhijeet Raj (accused), Ranjeet and Sagar were already present at the room of Vijay where they were consuming liquor and they also joined them; that Sagar was saying that he was planning to buy a car make REVA after which a hot discussion started between Abhijeet and Ashish Kumar Sharma about the cars and they started quarreling with each other; that Abhijeet started abusing Ashish and told him that "tu pehle bhi mere sath behas kar chuka hai, aur apne apko jyada samajdhar samjhta hai aur aaj mein tujh ko jinda nahi chorunga"; that due to the intervention of other friends both Ashish and Abhijeet Raj were separated; that all the occupants of the room left the room when the persons staying in the neighbourhood objected to their behaviour; that thereafter Sagar, Bharat, Nitin, Ashish and Rohit went away downstairs from the said room while Abhijeet and his friend remained in the room and the same was bolted from outside; that Abhijeet was shouting from the room and also hitting the door from inside and was saying that he would not make any quarrel with Ashish; that thereupon Jai Mishra opened the door from the outside after which Abhijeet and his friend also went away from the room; that Abhijeet was having a dumble in his hand and was concealing the same behind him which Jai Mishra had seen; that Jai Mishra came down immediately and snatched the dumble from the hands of Abhijeet and told Bharat and other persons that he (Abhijeet Raj) could cause injuries by said dumble to Ashish.
It has also been observed by this Court that the prosecution St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 170 has been able to prove and establish that thereafter the accused Abhijeet Raj took Ashish Kumar with him by putting his hand on Ashish Kumar and both of them were seen going towards the gate of Christian Colony near the nala; that Jai Mishra had seen the accused Abhijeet Raj coming with his hands stained in blood; that while Rohit Negi, Jai Mishra, Nitin and Bharat were standing outside the room, one public person who appeared to be rickshaw wala or a thelawala came from the nala side in a nervous condition and told them "Aap ka ek adami waha par gira para hai" on which they all started running towards the direction; that they all reached in front of Mandir near nala where Ashish was found in an injured condition and blood was oozing out from the backside of his head and from his eyes; that Rohit Negi took out the keys of the car from his pocket and brought his car at the said place near nala and he along with Bharat and Nitin put Ashish in the car and took him to Hindu Rao Hospital but he was declared dead by the doctors.
Further, it has been established that the statement of Rohit Negi was recorded on which the rukka was prepared at 6:00 AM and the FIR was registered at 6:15 AM in which Abhijeet Raj has been specifically named; that within few hours of registration of FIR and prior to arrest of the accused Abhijeet Raj, Khir Sagar Patel handed over to the Investigating Officer a blue colour sling bag/ Pitthu bag belonging to the accused Abhijeet Raj which the accused had left in his room; that on checking the said bag was containing driving licence of Abhijeet, two St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 171 SIM cards (One of TATA and other was of VODAFONE), ten Photographs of Abhijeet, one Memory Card of 2GB, one Mobile Phone make NOKIA, Black Colour; one SIM of UNINOR, one Card Holder of black colour, seven visiting cards of Abhijeet Raj, one TITAN Wrist Watch, one Metro Train Smart Card, one Health Fitness Slip, one Small Knife, two pens, one goggle case, coins of Rs.1/, one Gamcha with Strips, one Nokia Phone Charger, one Black Colour Diary on the first page of which Abhijeet Raj was written in English which was a Spiral Diary, in which with red pen '20 ways to kill with your bare hand' were written; that the said bag was taken into possession in the presence of Khir Sagar Patel who has admitted his signatures on its seizure memo.
This Court has also observed that the prosecution has been able to prove and establish that on 27.2.2012 SI Sanjay Tomar along with Ct. Deepak, Ct. Avdesh and HC Santosh had gone to the native village of the accused Abhijeet Raj at Motihari, Bihar; that on 03.03.2012 the accused Abhijeet Raj was arrested from Motihari, Bihar and after taking obtaining Transit Remand from the competent Court the accused Abhijeet Raj was brought to Delhi on 05.03.2012 and was produced before the Investigating Officer; that the accused Abhijeet Raj was then interrogated at length and his disclosure statement was recorded; that on 07.03.2012 pursuant to his disclosure statement the accused Abhijeet Raj led the police party to Agra at Tundla Road which is about 15 km ahead of Agra and then led the police to fields near Kalpana Hotel situated on the main St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 172 highway i.e. NH2; that the accused Abhijeet Raj then led the police party to wheat fields and from the corner of the field, the accused got recovered a knife which was then taken into possession.
Vide the detail judgment this Court has observed that there is a proximity between the last seen and the time of death of the deceased and it stands established that the deceased Ashish was last seen alive in the company of the accused Abhijeet Raj who took Ashish with him towards gate of Christian Colony, Patel Chest and within 1015 minutes Ashish was found lying injured in a pool of blood at the same place where Abhijeet was found to be taking him and was still alive after which he was shifted in a car and taken to the hospital where Ashish was declared dead. The accused Abhijeet Raj has failed to explain when he parted company of the deceased. The subsequent conduct of the accused Abhijeet Raj in hurriedly fleeing away from Delhi by leaving his belongings in the room of Khir Sagar Patel including his watch, mobile phone, Metro Card, SIM cards etc. provides corroboration and confirmation to the prosecution version pointing towards the guilt of the accused.
The Medical Evidence established that the death of Ashish was caused due to shock and haemorrhage consequent to stab injuries and that the Injury no. 15 is individually sufficient to cause death in ordinary course of nature. The Forensic Evidence established the spot of incident from where the various exhibits were lifted and Human Blood has been St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 173 confirmed to be present on the weapon of offence i.e. knife which was got recovered by the accused Abhijeet Raj.
Therefore, this Court has held that the prosecution has been able to prove and establish the intent and knowledge (as contemplated under Section 299 IPC) of the accused Abhijeet Raj to commit murder of Ashish Sharma for which the accused Abhijeet Raj has been held guilty of the offence under Section 302 Indian Penal Code for which he has been accordingly convicted.
Heard arguments on the point of sentence. The convict Abhijeet Raj is a young boy aged 27 years having a family comprising of father, mother, two younger brothers. He is a Graduate. Ld. Counsel for the convict has vehemently argued that the convict is a young young boy and has no history of any other criminal involvements. It is prayed that a lenient view be taken against the convicts.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Abhijeet Raj. It is also stated that the convict has not been able to show any mitigating circumstances in their favour which could make out St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 174 a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity.
The mitigating circumstances which were mentioned in that St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 175 judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is
young or old, he shall not be sentenced to
death;
(c) The probability that the accused would not
commit criminal acts of violence as would
constitute a continuing threat to society;
(d) The probability that the accused can be
reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 176 so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 177
Now, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case are that the convict Abijeet Raj is a young boy and has no history of any previous criminal involvement. The aggravating factors are that the deceased Ashish Sharma was also a young boy of 26 years. The convict had killed the deceased Ashish Sharma only because the deceased had disagreed to him on the quality of cars.
After having considered the submissions made before me and the various aggravating and mitigating factors, I hold that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. The convict Abhijeet Raj is a young boy of 27 years, a Graduate with no criminal background. Therefore I award the following sentences to the convict Abhijeet Raj:
1. For the offence under Section 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.1,00,000/ (Rs. One Lac). In default of payment of fine the convicts shall undergo Simple Imprisonment for a period of Six Months. The total fine amount of Rs. One Lac if deposited by the convict shall be given to the family of the deceased Ashish Sharma as compensation under Section 357 Cr.P.C.
Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial. St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 178
The convict is informed that he has a right to prefer an appeal against the judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convict free of costs and one copy of sentence be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 24.7.2014 ASJII(NW)/ ROHINI
St. Vs. Abhijeet Raj, FIR no. 66/12, PS Mukherjee Nagar Page No. 179