Delhi District Court
State vs Sunil @ Rajan @ Jaat on 19 September, 2023
IN THE COURT OF SANJEEV KUMAR-II,
SPECIAL JUDGE (NDPS)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Session Case No. 749/2017
CNR No. DLCT01-014870-2017
State
versus
Sunil @ Rajan @ Jaat
Son of Rajender Singh,
Resident of Vegabond,
Footpath, Near ISBT or
Swami Narayan Mandir,
Civil Lines, Delhi.
IInd Address:
Village-Bara P.O. & PS Bara Distt.
Allahabad, Uttar Pradesh.
Instituted on : 12.10.2017
Reserved on : 29.03.2023
Decided on : 19.09.2023
JUDGMENT
The accused Sunil @ Rajan @ Jaat has been facing trial in Session Case No. 749/2017 relating to First Information Report (FIR) No. 0118/2017 registered at Civil Lines Police Station for an offence under section 302 and 201 of the Indian Penal Code, 1860 (in short, 'IPC'). The co-accused Jeevan Singh Negi @ Bahadur S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 1 @ Chikna @ Mastan was also facing trial but he was declared proclaimed offender on 01.04.2022.
Facts
2. The facts germane from the prosecution case succinctly necessary for disposal of the present case are that on Case of the prosecution is that on 02.05.2017, a PCR call regarding burnt dead boy was received as PS Civil Lines vide DD No.198A. Thereupon, Sub-Inspector Abhijit Kumar alongwith Constable Vipin reached thes pot i.e. inside Shri Narsingh Giri Udyan (Tikona Park), in front of Swami Narayan Mandir, Ring Road, Civil Lines, Delhi. At the spot one male dead body was found at the spot in partially burnt condition and hands and mouth of the deceased were tied. Dead body was unidentified. Crime Team and FSL Team also reached the spot and inspected and photographed the scene of crime. Exhibits were seized and dead body was sent to Subzi Mandi Mortuary for postmortem examination. The deceased could not be identified. On the basis of PCR Call, spot inspection etc. it is found that offence under section 302 and 201 of the IPC is made out and therefore, tehreer/ruqqa was sent to police station. On the basis of said tehreer/rukka, FIR No. 0118/2017 was registered at Civil Lines Police Station for the offences punishable under sections 302 and 201 of the IPC on 02.05.2017 against the unknown person.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 2 Investigation
3. After registration of FIR, investigation was handed over to Inspector Karan Singh Rana, who was the Station House Officer of said police station. During investigation on 06.05.2017, one eye witness of the incident namely Ravi was found to the Investigating Officer, who stated that on 29.04.2017 at around 3-4 pm, he was sleeping on footpath in front of Tikona Park, however, on hearing voice of quarrel, he woke up and saw Sunil @ Jaat, Kalia and Jeevan were quarreling. He heard that Kalia was demanding his money from the duo and threatening him to kill them with stone when the sleep. After saying that Kalia went on the other side of the road near Gaushala. Jeevan and Sunil also chased him and both of them dragged Kaila at the opposite side of road and went inside Tikona park. The accused Jeevan tied hands, legs and mouth of Kalia. Thereafter Sunil hit a big stone on the face of Kalia, Sunil also hit saria in the stomach of deceased Kalia. Thereafter, both of them strangulated Kalia. Both the accused dragged the Kalia under a peeple tree near the wall of park and covered his body with raw leaves and clothes and burnt his body and both of them fled away. Statement of Ravi Kumar under section 164 of the CrPC was recorded by the learned Magistrate on 06.05.2017. Both the accused persons were arrested on 07.05.2017 by the Investigating Officer at the instance of eye witness Ravi Kumar Jha. The disclosure statement of both the accused persons were recorded by the Investigating Officer. On 08.05.2017, accused Sunil got recovered S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 3 one iron rod and one stone piece from the pile of the garbage which were taken into possession through seizure memo separately and thereafter, deposited in the malkhana. The exhibits were sent to FSL, Rohini vide FSL No.2017/BIO-5128 dated 12.07.2017 and FSL No. 2017/CHE-5222, dated 12.07.2017 for analysis and expert opinion.
Charge-Sheet
4. On completion of investigation, the police report under section 173 of the Code of Criminal Procedure, 1973 (in short, 'CrPC') was filed on 02.08.2017 for the offences under sections 302 and 201 read with section 34 of the IPC against two accused persons, namely, Sunil @ Rajan @ Jaat and Jeevan Singh Negi @ Bahadur @ Chikna @ Mastan before the learned Metropolitan Magistrate.
Cognizance
5. The learned Metropolitan Magistrate took cognizance on police report for the offences punishable under sections 302 and 201 read with section 34 of the IPC on 02.08.2017. The provisions of section 207 of the CrPC was complied with by giving copies of police report, FIR, statements recorded under sub-section (3) of section 161 of the CrPC, the confessions and other statements, if any, recorded under section 164 of the CrPC and other documents to the S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 4 accused persons and thereafter, case was committed to the Court of Session vide order dated 08.09.2017.
Charge
6. The charge was framed on 15.12.2017 for offences under sections 302 and 201 read with 34 of the IPC against the accused Sunil @ Rajan @ Jaat and Jeevan Singh Negi @ Bahadur @ Chikna @ Mastan to which they pleaded not guilty and claimed to be tried.
Prosecution Evidence
7. In order to prove its case, prosecution has examined eighteen witnesses, namely, Ravi Shankar Jha (PW1); Constable Ajay Sharma (PW2); Sub-Inspector Nagender Giri (PW3); Dr. Asitesh Bajwa (PW4); Inspector Manohar Lal (PW5); Assistant Sub- Inspector Ravinder Tomar (PW6); Sub-Inspector Mangal Singh (PW7); Sub-Inspector Ummed Singh (PW8); Dr. Subhash Chandra (PW9); Sub-Inspector Abhijeet Kumar (PW10); Head Constable Jitender (PW11); Manoj Kumar (PW12); Kulbhushan Gupta (PW13); Head Constable Anil Kumar (PW14); Constable Yogesh (PW15); Constable Vipin (PW16); Constable Raj Kumar (PW17); and Inspector Karan Singh Rana (PW18).
Statement of accused
8. All the circumstances in evidence against accused Sunil @ Rajan @ Jaat were put to him, when examined under section 313 of S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 5 the CrPC. The accused has denied his involvement and stated that he has been falsely implicated in this case.
Defence Evidence
9. The accused Sunil @ Rajan @ Jaat did not lead evidence in his defence.
Arguments
10. Mr. Balbir Singh, learned Additional Public Prosecutor for the State has submitted that the prosecution witnesses have fully supported the case of prosecution. There is no material contradictions in testimony of witnesses of prosecution. There is no contradictions in respect of place of incident. The dead body was recovered from Tikona Park. PW1 Ravi himself had seen also that the accused persons had burnt the dead body of the deceased. There is no contradiction in testimony of PW1 Ravi regarding saria. The recovery of weapon of offence that is saria and brick were recovered at the instance of accused Sunil. The prosecution has proved its case beyond reasonable doubt against the accused Sunil and therefore, he may be convicted of the charge.
11. Per contra, Mr. Deewakar Chaudhary, learned Legal Aid Counsel appearing for the accused Sunil contended that witness Ravi (PW1) is a planted witness. There are several contradictions in his testimony. PW1 in examination-in-chief, stated that he was S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 6 sleeping on footpath near Tikona Park in front of Swami Narayan Mandir whereas in his cross-examination he stated that he was sleeping on the mid verge which falls on the road from Clock Tower to Red Fort in front of the Swami Narayan Mandir. There are other contradictions also. As per prosecution story, witness Ravi met the police on 06.05.2017 and he told police the name of deceased as Kalia and therefore, deceased was identified on 06.05.2017 but Inspector Karan Singh Rana had given application regarding publication of UIDB Male in leading daily newspaper on 24.05.2017 and in the column of the name it is shown unknown. PW1 Ravi had neither tried to save the deceased nor raised alarm nor informed the police. PW1 has stated in his deposition that saria was normal saria but when saria was produced it was found that same was having bent on one side. PW1 did not depose that word 'OM' had been engraved on the right arm of deceased and therefore, testimonies of PW1 cannot be relied upon.
12. Mr. Chaudhary has further submitted that the other prosecution witnesses have deposed falsely being official and interested witnesses. It was a blind murder case and the police officials of Civil Lines Police Station were under pressure to solve this case immediately and they have falsly implicated the accused to release the pressure of the senior officials. The prosecution has not examined any other eye witness except PW1 Ravi despite the fact that there was public on the spot at the time of incident. There is no S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 7 videography and/or photography in respect of alleged recovery of rod and brick at the instance of the accused Sunil. The prosecution has not proved its case beyond reasonable doubt and therefore, accused Sunil may be acquitted.
Analysis and Conclusion Rule of Classification of Oral Testimonies
13. The Hon'ble Supreme Court in its celebrated judgment in the case of Vadivelu Thevar v. The State of Madras, (1957) SCR 981 made observations:
".....Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
[emphasis supplied] S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 8
14. Above mentioned rule of classification of oral testimony into three categories is reiterated by Hon'ble Supreme Court in cases of Rajesh Yadav & Anr. Etc. v. State of U.P., Criminal Appeal Nos. 339-340 of 2014, decided on 04.02.2022; Mahendra Singh and Ors. v. State of M.P., 2022 LiveLaw (SC) 543 and Khema @ Khem Chandra Etc. v. state of Uttar Pradesh, Criminal Appeal No. 1200-1202 of 2022 decided on dated 10.08.2022.
Falsus in uno falsus in omnibus
15. The maxim "falsus in uno falsus in omnibus" is not accepted in India. The grain has to be separated from the chaff to find out the truth from the testimony of the witness. [Reference: Shakila Abdul Gafar Khan (Smt) v. Vasant Raghunath Dhoble and another, (2003) 7 SCC 749; State of Andhra Pradesh v. Pullagummi Kasi Reddy Krishna Reddy alias Rama Krishna Reddy and others, (2018) 7 SCC 623 and Rupinder Singh Sandhu v. State of Punjab and others, (2018) 16 SCC 475].
Proved or Disproved
16. As per section 3 of the Indian Evidence Act, 1872 a fact is said to be "proved" when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. A fact is said to be "disproved" when, after considering the matters before it, S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 9 the Court either believes that it does not exist, or considers its non- existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said "Not proved" when it is neither proved nor disproved.
17. The Hon'ble Apex Court in case of Rajesh Yadav (supra) has interpreted words proved, disproved and prudent in the following words:
"17.What is important for the court is the conclusion on the basis of existence of a fact by analysing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
18. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
19. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 10 against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, we may hasten to add, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain."
Improvement, contradictions and discrepancies
18. With regard to the law regarding improvement, contradictions and discrepancies which may occur in the deposition of witnesses, Hon'ble Supreme Court in case of State of Madhya Pradesh v. Dal Singh & Ors., Criminal Appeal No.2303 of 2009, decided on 21.05.2013 held at para no. 7:
"So far as the discrepancies, embellishments and improvements are concerned, in every criminal case the same are bound to occur for the reason that witnesses, owing to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time to occurrence.
The court must form its opinion about the credibility of a witness, and record a finding with respect to whether his deposition inspires confidence. "Exaggeration per se does not render the evidence brittle. But it can be one of the factors against which the credibility of the prosecution's story can be tested, when the entire evidence is put in a crucible to test the same on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of a statement made by the witness at an earlier stage. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., which materially affect the trial, or the S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 11 core of the case of the prosecution, render the testimony of the witness as liable to be discredited."
19. In State Represented by Inspector of Police & another v. Saravanan, (2008) 17 SCC 587, Hon'ble Supreme Court held that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety.
20. In Sunil Kumar Sambhudayal Gupta (Dr.) and others v. State of Maharashtra, (2010) 13 SCC 657, while dealing with the issue of material contradictions, the Hon'ble Supreme Court held that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions had been of such magnitude that they may materially alter the trial; minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety; the courts have to label the category to which a discrepancy belongs, while normal discrepancy do not corrode the credibility of a party's case, material discrepancy do so.
21. In Mukesh & Anr. v. State for NCT of Delhi & Ors., Criminal Appeal Nos. 607-608 of 2017 decided on 05.05.2017, Hon'ble Supreme Court has referred the above-mentioned cases i.e. Saravanan (supra) and Sunil Kumar Sambhudayal Gupta(supra) S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 12 in respect of issue pertaining to contradictions etc..
22. In Rajesh Yadav (supra), It was held:
22.On the law laid down in dealing with the testimony of a witness over an issue, we would like to place reliance on the decision of this Court in C. Muniappan v. State of T.N., (2010) 9 SCC 567:
81. It is settled legal proposition ----
82.----
83.----
84.--
"85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."
23. Hence minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
Appreciation of evidence Recovery of Dead Body
24. The prosecution has examined several witnesses on the point of recovery of dead body of deceased Kalia. Assistant Sub-Inspector S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 13 Ravinder Tomar (PW6) deposed that on 02.05.2017, he was working as Duty Officer from 4 p.m. to 12 midnight and during his duty hours at about 5.55 pm, he received PCR call regarding dead body lying in the Swami Narayan Mandir Park in burnt condition. He reduced the said information into writing vide DD No. 18-A, copy of which is Ex.PW6/A. The said DD was entrusted upon Sub- Inspector Abhijit through Constable Vipin for necessary action. Sub Inspector Mangal Singh (PW7) was Incharge PCR Van, North Zone on 02.05.2017 and after receiving a call from Control Room regarding dead body lying on the spot that is the Park of Laxmi Narayan Mandir, Tikona Park, Ring Road, Delhi, he reached at the spot alongwith his staff and found dead body of a male at the spot in burnt condition. After receiving DD No.18A regarding a PCR call which was to the effect that a burnt dead body was lying at the spot, Sub Inspector Abhijit Kumar (PW10) who is First Investigating Officer, alongwith Constable Vipin (PW16) reached at the spot on 02.05.2017 and they found burnt dead body of the deceased and deposed about condition/details of the said dead body. PW10 requisitioned crime team to the spot. Thereafter, Sub Inspector Nagender Giri (PW3) who was Incharge Mobile Crime Team, North District alongwith Constable Ajay Sharma (PW2) who is the photographer in said Crime Team and Assistant Sub Inspector Rajbir who is Finger Print Proficient, reached at the spot in pursuance of information received from Control Room, North District. Second Investigating Officer Inspector Karan Singh Rana (PW18) S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 14 alongwith Constable Raj Kumar (PW17) also reached at the spot who also deposed about condition/details of the dead body.
25. Sub-Inspector Nagender Giri (PW3) found Sub-Inspector Abhijeet (PW10) with his staff present at the spot. He saw one decomposed dead body of a male in burnt condition lying inside the park near boundary wall. He noted down the visible condition of the dead body and mentioned the same in his report Ex. PW3/A. He handed over the said report to the Investigating Officer at the spot.
26. Constable Ajay Sharma (PW2) also found PW10 (First Investigating Officer) along with the staff at the spot. He saw a dead body in burnt condition in the park. He took 14 (fourteen) photographs of said dead body from different angles, at the instructions of the Investigating Officer. Later on, he gave the negatives to the Investigating Officer for developing of photographs. He identified 10 photographs on the court file which are Ex PW2/A1 to Ex PW2/A10. Four negatives might have spoiled. He brought the negatives which are Ex PW2/B1 to Ex PW2/B14.
27. On 02.05.2017, Dr. Subhash Chandra (PW9), Senior Scientific Officer (Chemistry), Forensic Scientific Laboratory, alongwith Manoj Kumar (PW12) Junior Forensic Assistant, Chemical Examiner (Biology) and Kulbhushan Gupta (PW13) Senior Scientific Assistant (Photography) in pursuance of request made by S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 15 Sub Inspector Abhijit Kumar (PW10) visited the scene of occurrence to inspect the scene of crime as a dead body was stated to have found in partially burnt condition at the said place. Dr. Subhash Chandra (PW9) along with above said two experts inspected the spot/scene of occurrence thoroughly and observed as under:-
1. One dead body lying between boundary wall and tree.
2. It was found partially burnt condition.
3. It was found that hands were tied with strip of cloth.
4. A cloth strip tied around mouth.
5. Some unidentified partially burnt cloth lying near body.
6. Partly burnt cloth seen on lower parts of the body.
7. Maggots were seen over upper parts of the body.
After the above observations, PW9 advised the Investigating Officer to collect the exhibits i.e. partially burnt clothes and residue of burnt material and keep them in some air tight container and then sent for chemical examination at FSL. He prepared his Inspection Report containing the above observations and advise which is Ex PW9/A.
28. Manoj Kumar (PW12) also thoroughly examined the scene of crime in order to find out presence of biological clue material. During inspection, he lifted exhibits from the spot which are blood stains lifted from the place where the dead body was found lying;
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 16 The vegetative material. The blood stains lifted from the spot were handed over to the Investigating Officer for sending the same to FSL for examination. He prepared his Inspection Report which is Ex PW12/A.
29. Kulbhushan Gupta (PW13) found one dead body of male lying at the spot. At the spot, he clicked 11 photographs of the scene of occurrence and that of the dead body from different angles with digital camera. He brought said 11 photographs and placed on record which are Ex PW13/A1 to Ex PW13/A11.
30. Sub-Inspector Umeed Singh (PW8) was serving as Sub- Inspector and working as Nodal Officer in the CPCR at PHQ, Delhi on 26.07.2017. He has proved that on 26.07.2017, at the request of the Investigating Officer of this case, he provided the Form No.1 of Delhi Police Control Room pertaining to the information dated 02.05.2017 bearing CPCR DD No. 02MAY171110382. The attested copy of the said form is has been proved as Ex.PW8/A and his certificate under section 65B of Indian Evidence Act, 1872 in respect of the correctness of the contents of the said form has been proved as Ex.PW8/B.
31. From the deposition of the PWs 2, 3, 6, 7, 9, 10, 12, 13, 16, 17 and 18 about the lying a dead body of the deceased at the spot and its condition/details, it is proved that a dead of a male aged about S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 17 35-40 years was found lying at the spot between boundary wall and tree. The dead body had signs of decomposition. The mouth and hands of dead body were tied with a green clothes. The intestines had protruded out from the left side of abdomen. Right thigh was found lacerated. Two fingers of left hand were found cut. Tattoo of 'Om' was found engraved on the right arm. It was found partially burnt condition. Some unidentified partially burnt cloth lying near body. Partly burnt cloth seen on lower parts of the body. Maggots were seen over upper parts of the body. The photographs of dead body were also clicked.
32. It has also been proved from the depostion of said witnesses that PW10 gave written request to the FSL expert for inspection of the spot vide carbon copy of his request Ex PW10/A; that PW10 lifted exhibits from the spot that is blood in gauge of deceased, blood stained soil and the burnt clothes and material; that PW10 sealed the exhibits with the seal of AK and seized vide memo Ex. PW10/B; that the dead body was sent to Subzi Mandi mortuary through Constable Vipin (PW16); that the request letter of PW10 for preserving the dead body for 72 hours is Ex.PW10/D; that Investigating Officer, Inspector Karan Singh Rana (PW18) prepared site plan at the instance of PW10, which is Ex. PW10/E; that on 05.05.2017, at the request of Investigating Officer (PW18), post mortem was done by the doctor and after post mortem, the dead body was handed over to the Investigating Officer and the same was S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 18 sent to electric crematorium through Constable Kapil along with a request of Investigating Officer for its last rites; that Doctor of mortuary handed over sealed exhibits stated to be containing viscera, cloth piece by which the hand of the deceased was tied, ligature material, tooth of deceased along with sample seal and all exhibits were sealed with the seal of CMO IC AAAGH Subzi Mandi mortuary, Delhi; that the exhibits along with sample seal were seized vide seizure memo Ex.PW10/F and thereafter, the case property was deposited in the malkhana.
FIR
33. Assistant Sub-Inspector Ravinder Tomar (PW6) deposed that on 02.05.2017, he was serving Duty Officer at Police Station Civil Lines, Delhi and during his duty hours at about 10.15 p.m., Constable Rajkumar brought rukka mark PW6/A, sent by Sub- Inspector Abhijit (PW10), on the basis of which he got registered present FIR No. 118/17 by getting it typed on computer through computer operator. The copy of FIR No. 118/17 is Ex PW6/B. He made his endorsement Ex PW6/C bearing DD No. 23-A, on the rukka mark PW6/A. He issued certificate under Section 65B of Evidence Act which is Ex PW6/D. After registration of FIR, the copy of the same was given to Constable Rajkumar (PW17) for handing over the same to SHO, PS Civil Lines for investigation. Immediately after registration of FIR, the special report was sent to the Illaka Magistrate and Senior Police Officers through special S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 19 messenger Constable Balram. Sub-Inspector Abhijeet Kumar (PW10) has deposed that he prepared rukka (Ex.PW10/A) and sent Civil Lines Police Station for registration of FIR through Constable Raj Kumar (PW17). PW17 also deposed that PW10 prepared rukka and handed over to him and he went to police station and got the present case registered. Inspector Karan Singh Rana (PW18) also deposed that Sub-Inspector Abhijeet (PW10) prepared rukka and handed over the same to Constable Raj Kumar (PW17) for registration of FIR. Hence, rukka (Ex.PW10/A), FIR (Ex PW6/B) and endorsement on rukka (Ex PW6/C) and certificate under section 65B of Evidence Act (Ex PW6/D) have been proved. It is also proved that immediately after registration of FIR, the special report was sent to the Illaka Magistrate and Senior Police Officers through special messenger Constable Balram.
Eye-witness and Arrest of Accused
34. Sub-Inspector Abhijeet Kumar (PW10) has deposed that on 06.05.2017, he joined the investigation of the present case with the Investigating Officer (PW18). During investigation, they visited nearby Swaminarain Mandir, Geeta Ghat and Monastry to search the accused and witness but no clue was found there. Thereafter, they visited to Kudeshiya Ghat where one Ravi (PW1) met them who introduced himself as the eye witness of the case and had stated the name of the deceased as Kalia who has been murdered by Sunil Jaat and Jeevan Chikna. Ravi had also stated that the accused persons are S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 20 vagabond and he could get arrested them nearby ISBT Kashmere Gate. They had gone in the search of accused persons along with Ravi but they could not be traced. Thereafter, they came to the concerned court and upon the application of Investigating Officer, statement of Ravi was recorded under section 164 CrPC.
35. PW 10 has further deposed that on 07.05.2017 he again joined investigation of the present case with the Investigating Officer (PW18) and Head constable Anil (PW14). They searched for both the accused persons near Ring Road, ISBT. Eye-witness Ravi (PW1) met them near Narayan Mandir and told them that if area near ISBT is searched, the accused persons may be found. When they reached at ISBT foot over bridge, in the search of accused persons, they found a person sleeping on foot over bridge and the eye-witness Ravi identified the said person as accused Sunil @ Jaat, who had murdered Kalia along with his co-accused Jeewan. Investigating Officer (PW18) made inquiries from accused Sunil @ Jaat, who confessed his guilt. Accused Sunil @ Jaat was arrested vide arrest memo already Ex.PW1/B. His personal search was conducted vide personal search memo vide Ex.PW1/D. The disclosure statement of the accused was recorded which is Ex.PW14/5.
36. PW10 has also deposed that on the same day, in search of another accused, they reached at Nigam Bodh Ghat alongwith the eye-witness and accused Sunil, where after seeing one person S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 21 sleeping on footpath, eye-witness Ravi identified him as accused Jeewan. The accused Sunil also identified him as his co-accused. Investigating Officer (PW18) made inquiries from accused Jeewan as well who confessed his guilt and he was arrested vide arrest memo Ex.PW1/C. His personal search was conducted vide personal search memo Ex.PW1/E. The disclosure statement of the accused was recorded in his presence which is Ex.PW10/G. The accused was then taken to the place of occurrence. At the instance of accused Sunil, pointing out memo of the place of incident was prepared which is Ex.PW10/H. At the instance of accused Jeewan, pointing out memo was prepared which is Ex.PW10/I.
37. Head Constable Anil Kumar (PW14) has corroborated the testimonies of PW10 regarding arrest of accused Sunil and thereafter, accused Jiwan Singh at the instance of PW1 Ravi on 07.05.2017 and preparing arrest memo, personal search memo etc..
38. Investigating Officer, Inspector Karan Singh Rana (PW18), has corroborated the deposition of PW10 in respect of founding PW1 Ravi at Kudeshiya Khat on 06.05.2017 and telling by him about the incident seen by him and name of deceased and two accused persons; in respect of recording statement of PW1 Ravi by learned Magistrate under section 164 CrPC on 06.05.2017. He also corroborated testimonies of PW10 and PW14 in respect of arrest of accused Sunil and thereafter, accused Jiwan Singh at the instance of S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 22 PW1 Ravi on 07.05.2017 and preparing arrest memo, personal search memo etc.
39. Ravi Shanker (PW1) has corroborated testimonies of PW10 and PW18 regarding his meeting with police on 06.05.2017 and telling by him to them incident, name of deceased and accused persons and recording his statement by the learned Magistrate on same day. He has also corroborated testimonies of PW10, PW14 and PW18 qua arrest of accused Sunil and thereafter, accused Jiwan Singh at his instance on 07.05.2017 and preparing arrest memo, personal search memo etc..
40. The deposition of Ravi Shanker (PW1) is that he has been living in Delhi since 1998. He used to work in marriage ceremonies and some time he used to pick rags. On 29.04.2017 between 03.00 to 04.00 PM, he was sleeping on footpath near Tikona Park in front of Swami Narain Mandir. Sudddenly, he woke up due to a noise and saw three persons taking liquor. They were Sunil Jaat, Jeewan @ Chikna and Kalia. Kalia was asking Sunil and Jeewan to return his money, otherwise he would hit them with stone in night, while they would be sleeping. Scuffle was taking place among them. Kalia ran away from there towards Monastry. Then, Sunil and Jeewan apprehended him and brought him back to the same place. Jeewan tied the hands and feet of Kalia and gagged his mouth with a cloth. Sunil hit a stone on the face of Kalia and also gave saria blow on his S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 23 stomach. Jeewan and Sunil strangulated Kalia by pressing his neck with their hands and killed him. Thereafter, Sunil and Jeewan dragged Kalia towards the wall of park near a peepal tree. Sunil and Jeewan put the dry leafs of peepal tree and some pieces of old clothes lying there on the body of Kalia and then set him on fire. Thereafter, they both went away from there. He know Sunil and Jeewan. During the days of occurrence, Sunil used to work in Chawri Bazar and accused Jeevan @ Chikna used to work at Mithai Pul. He also knew deceased Kalia, as he used to work as ragpicker around the place of occurrence.
41. PW1 has further deposed that on 06.05.2017, police met him and made inquiries from him about the aforesaid occurrence and he narrated the aforesaid facts to the police. On the next day i.e. on 07.05.2017 he was produced before Magistrate in Tis Hazari Courts and the Magistrate recorded his statement in respect of the case. During the deposition of PW1, one envelope bearing particulars of this case and lying duly sealed was opened and from it the proceedings in respect of statement under section 164 CrPC and the statement of witness PW1 were taken out and shown to the PW1. He identified said statement as a statement which he made before a Judge. He also identified his signatures at Points A and B on said statement. The statement has been exhibited as Ex. PW1/A. S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 24
42. PW1 further deposed that on 07.05.2017, at about 09.25 PM, he alongwith the police searched for the accused persons. At that time, he saw Sunil accused sleeping over the footover bridge on Ring Road in front of ISBT Kashmere Gate, Delhi. He pointed out said accused as one of the offenders. Police arrested him in this case at his pointing vide arrest memo Ex. PW1/B. Thereafter, he alongwith police reached the footpath in front of Nigham Bodh Ghat, Ring Road. There, he saw Jeewan @ Chikna sleeping on the footpath. He identified said accused Jeewan and pointed him out to the police. Police arrested accused Jeewan at his pointing, vide his arrest memo Ex. PW1/C. Personal search memo of accused Sunil is Ex .PW1/D. On the personal search of accused Sunil rupees 12/- in cash were recovered. Personal search of accused Jeewan @ Chikna was also conducted and police prepared his personal search memo Ex. PW1/E. On personal search of accused Jeewan rupees 80/- in cash were recovered. Police conducted pooch tach (interrogation) from both the accused persons. The police again recorded his statement in this regard.
43. In cross-examination PW1 has deposed that since 1998, he has been living/staying on foothpath within the limits of Kashmere Gate to Civil Lines, Delhi. He used to work for different tent houses, in connection with marriages as and when called from the footpath. At the time of occurrence, he was sleeping on the mid-verge which falls on the road, from Clock Tower to Red Fort, and in front of S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 25 Swami Narayan Mandir. Again said, Swami Narayan Mandir falls on the left hand side if one moves from ISBT to Civil Lines. He was sleeping on the mid-verge which faces the temple. He was sleeping in between Tikona park and Swami Narayan Mandir. Many other persons were also sleeping on the same mid-verge, near him. The main gate of the temple may be at a distance of 300-350 feet from the place where he was sleeping. Tikona Park may be at a distance of 3-4 feet from the place where he was sleeping. Tikona Park has an area of about 400-500 feet. Said park had a boundary wall which is of the height of about 4 feet. Said park had two gates. One of the gates opens towards Swami Narayan Mandir. The other gate of the park opens in the south. There were many trees in the park. There was an ashram in the said park, there are pandits in the said ashram. 30-35 people/children, generally from Swami Narayan Temple, used to come to learn in the said ashram during the day. After the process of learning was over, those children/people used to return to Swami Narayan Temple in the evening. It was at about 03.00-04.00 pm that he heard noise and got up. Accused persons were quarreling with deceased at a distance of 6-7 feet from the place where he was sleeping. While making statement before the police, he told that Kalia had run way from the place of occurrence towards monastry. But he do not know whether police recorded this fact or not. Attention of witness was drawn to portion A to A of Ex PW 1/DA where it is recorded that Kalia had ran way after the occurrence towards Gaushala.) Actually, Gaushala and Monstary are in the S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 26 same direction. Both the accused caught hold of Kalia at a place in between Gaushala and Monastry. This place may be at a distance of 200-225 feet from the place where he was sleeping. He told the police while making statement that both the accused had brought Kalia back to the place from where he had run away. Attention of witness was drawn to portion B to B of Ex PW 1/DA where it is recorded that both the accused caught of Kalia and brought him this side of the road. It was the eastern wall of Tikona park near which the deceased was dragged. He told to the police that the accused persons put dry leaves of peeple tree and old clothes lying there, over the dead body of Kalia. Attention of witness was drawn to portion C to C of Ex PW 1/DA where it is recorded that the accused persons put the leaves and clothes and covered the body of deceased. At the time of occurrence, Kalia was wearing T-shirt and blue colour jeans pant. Jeewan was wearing T-shirt of yellow type colour. Before narrating occurrence to police, he had told the occurrence to a kabari at his shop. He used to call said Kabari as Ramji. His shop is situated on the bank of Yamuna River near metro bijlighar in front of ISBT. The mouth of deceased was tied with a piece cloth and then the both ends of the piece of cloth were tied behind. It is correct that he did not state before the Magistrate that accused persons strangulate the deceased with their hands and killed him. He has denied the suggestion that he is a planted witness or that he was not present at the spot nor witnessed the occurrence in question. He has also denied that suggestion that he is deposing S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 27 falsely at the instance of police officials. In this para, main and relevant cross-examination of PW1 has been mentioned.
44. The learned counsel for the accused has stated that witness Ravi (PW1) is a planted witness and there are several contradictions in his testimony and he neither tried to save the deceased nor raised alarm nor informed police immediately. In this regard, it is further submitted that PW1 in examination-in-chief, stated that he was sleeping on footpath near Tikona Park in front of Swami Narayan Mandir whereas in his cross-examination he stated that he was sleeping on the mid verge which falls on the road from Clock Tower to Red Fort in front of the Swami Narayan Mandir. It is correct that PW1 in exmaination-in-chief, stated that he was sleeping on the footpath but in cross-examination stated that he was sleeping on the mid verge which falls on the road but I do not think that this is a material contradiction. In cross-examination, he explained that Swamin Naraytan Mandir falls on the left hand side if one movess from ISBT to Civil Lines; that he was sleeping on the mid verge which faces the temple; that he was sleeping in between Tikona Park and Swami Narayan Mandir. Merely because PW1 has not tried to save the deceased and raised alarm and informed police immediately, it cannot be said that he is planted witness because it is possible that due to fear he could not save the deceased and inform the police.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 28
45. The defence of the accused is also that the prosecution witnesses have deposed falsely being official and interested witnesses; that it was a blind murder case and the police officials of Civil Lines Police Station were under pressure to solve this case immediately and they have falsly implicated the accused to release the pressure of the senior officials. It is well settled that the question of prejudice or bias has to be established and not inferred. I do not find any material on record to reach such a conclusion that the police officials has falsely implicated the accused due to tremendous pressure to solve the case immediately. It is significant to note that there is nothing on the record to show that the police witnesses examined in the present case had any animus or hostility against the accused.
46. The learned counsel for the accused has raised a point/defence that as per prosecution story, witness Ravi (PW1) met the police on 06.05.2017 and he told police the name of deceased as Kalia and therefore, deceased was identified on 06.05.2017 but Station House Officer, Inspector Karan Singh Rana (PW18), had given application regarding publication of UIDB Male in leading daily newspaper on 24.05.2017 and in the column of the name it is shown unknown. I do not find force in this submission of the learned counsel. Nothing has been stated by the Inspector Karan Singh Rana during trial in respect of the said application and further, said application has not been marked/exhibited during evidence. It appears that on the said S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 29 application below signature of Inspector Karan Singh Rana wrong date (24.05.2017) has been mentioned due to typographical mistake because if the said application has been given/written on 24.05.2017 for publication of UIDB in leading daily newspaper then said advertisement would have been published after 24.05.2017 but said advertisement had been published in newspaper (Indian Express Newspaper and in also Amar Ujjala Newspaper) on dated 12.05.2017 which is twelve days prior to 24.05.2017 which is not possible. Further, as per the prosecution story, murder of the deceased took place on 29.04.2017 and on 02.05.2017 information regarding burnt dead body was received by police and till 05.05.2017, dead body was unidentified and on 06.05.2017, one eye-witness Ravi (PW1) was found by the police during investigation and he stated the incident and name of the deceased and the accused persons to the police, and before 06.05.2017, the dead bodey was unidentified and therefore, name of the deceased do not find mentioned in all the communications sent by the police/Inspector Karan Singh Rana till 05.05.2017 like Information dated 04.05.2017 (Ex PW18/C) regarding unknown male dead body sent by said Inspector to SDM Civil Lines; Information dated 04.05.2017 (Ex PW18/D) regarding unknown male dead body sent by said Inspector to the Director, National Crime Record Bureau, R. K. Puram, New Delhi and Information dated 04.05.2017 (Ex PW18/E) regarding unknown male dead body sent by said Inspector to the Director C. I. C., CBI, CGO Complex, Lodhi Road, Delhi.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 30 The statement of the witness Ravi under section 164 of the CrPC was recorded by the learned Metropolitan Magistrate on 06.05.2017 and said statement has been proved as Ex. PW1/A. It is also pertinent to note here that police came to know only name of deceased Kalia from witness Ravi (PW1) but his other particulars like parentage and address could not be known because he was ragpicker. PW1 has categorically stated that he knew deceased Kalia as he used to work as ragpicker around the place of occurrence. PW1 also used to pick rags sometime. Hence, I am not agree with the submission of the learned counsel for the accused that eye- witness Ravi (PW1) could not be found till 24.05.2017 to the police.
47. To my mind, witness Ravi (PW1) is not a planted witness because all the statements which he gave whether before the police under section 161 of the CrPC or before the learned Magistrate under section 164 of the CrPC or during trial are all similar to much extent. Though, there were certain discrepancies, embellishments and improvements in his statements but the same were bound to occur due to common errors in observation, i.e., errors of memory due to lapse of time, or errors owing to mental disposition, such as feelings shock or horror that existed at the time to occurrence. Such mere marginal variations in the statements of PW1 which cannot be dubbed as improvements as the same were merely elaborations of a statement made by him at an earlier stage. It is also well settled that the irrelevant details which do not in any way corrode the credibility S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 31 of a witness cannot be labelled as omissions or contradictions. Hence, though there were contradictions/omissions, inconsistencies, embellishments or improvements in the testimony of the Ravi (PW1) but these were normal discrepancies which did not affect the core of the prosecution case and thus, these improvements cannot be made a ground to reject the evidence in its entirety. There is nothing to show that PW1 has testfied falsely against the accused. There is nothing also to show that PW1 was having animosity or hostility against the accused to depose falsely. Therefore, PW1 cannot be said to be planted witness and his oral testimony falls in the category of wholly reliable. He has categorically deposed about the incident/murder of the deceased; about the manner of commiting murder; about the accused persons who committed said incident and how they committed the same; about the deceased against whom said incident was committed; about the motive of the accused persons for committing the murder; about his acquaitance with the accused persons and the deceased. The testimonies of the PW1 to my mind, cannot be said to be planted witness.
48. From the depostions of PW1, PW10, PW14 and PW18 as discussed above, I am of the view that the prosecution has proved that PW1 has seen the incident as described by him; his statement under section 164 of the CrPC was recorded by learned Magistrate vide Ex. PW1/A; the accused Sunil @ Rajan @ Jaat was arrested at the instance of PW1 vide arrest memo Ex.PW1/B; personal search S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 32 of accused Sunil was conducted vide personal search memo Ex.PW1/D. Recovery of Iron Rod and Stone
49. As per prosecution story, the accused Sunil got recovered weapons of offence i.e. a iron rod and a stone. In this regard, the prosecution has examined three recovery witnesses, namely, Sub- Inspector Abhijit Kumar (PW10), Head Constable Anil Kumar (PW14) and Investigating Officer Inspector Karan Singh Rana (PW18).
50. Sub-Inspector Abhijit Kumar (PW10) has deposed in this regard that on 08.05.2017 he again joined investigation of the present case with the Investigating Officer (PW18) and Head Constable Anil (PW14). One day police custody remand of accused Sunil was taken and Investigating Officer made inquiries from him. On which, the accused Sunil told him that he can get the stone and iron rod recovered from a park near the spot. They reached at the spot i.e. at Tikona Park in front of Swami Narayan Mandir, Ring Road, Delhi with accused Sunil in custody, where at the instance of accused Sunil, an iron rod and a stone were recovered from a pile of garbage (kude ka dher). The iron rod and the stone were kept in the separate pulandas and the same were sealed with the seal of KS by the Investigating Officer. The seizure memo in respect of stone and S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 33 iron rod are Ex.PW14/A and Ex.PW14/B respectively. The site plan of the place of recovery was prepared which is Ex.PW14/C.
51. In cross-examination, PW10 could not say if there is any garbage dump near Tikona Park or not. But voluntarily he stated that there is a vacant plot adjacent to the Tikona Park beyond which is the Ring Road and there is a garbage dump in the area of said vacant plot. In respect of joining public witnessse he stated that Second Investigating Officer had asked some public persons nearby the garbage dump to join the investigation but none agreed and they left the area without disclosing their names and addresses but he did not ask any resident from nearby residential area to join the investigation. He voluntarily stated that said residential area is situated at a distance of 250/300 meters away from the spot. No videography or photography of the proceedings in respect of the recovery of rod and stone were carried out. There were some stains/marks (dhaba) on the rod as well as stone. He could not say whether the said stains were blood stains or anything else. The rod recovered was hook shaped and was distinctive in its shape but there was no other distinctive identification mark on the same. He could not say if such hook shaped rods are easily available in the market or not. He denied the suggestion that the recovery is falsely planted and such rod is easily available in the market. The seal was handed over at the spot to Head Constable Anil.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 34
52. Head Constable Anil Kumar (PW14) has corroborated testimony of PW10 regarding recovery of iron rod and stone in pursuance of disclosure statement of accused Sunil. He deposed in his examination-in-chief that during d the interrogation, the accused Sunil disclosed that he used one iron rod and one stone in commission of the offence and he could get recovered the same from Tikona Park near the place of occurrence. Nar Singh Giri Udyaan is generally known as Tikona park. On 08.05.2017, in pursuance of disclosure statement of the said accused, he led them at the aforesaid place i.e. Tikona Park and he pointed out one piece of stone and iron rod lying in the debris lying in the park. On the pointing of the accused Sunil, the Investigating Officer recovered one piece of stone and iron rod.
53. PW14 further deposed that Investigating Officer kept the piece of stone in a cloth parcel and sealed it with the seal of KS and then seized it through seizure memo Ex.PW14/A. Investigating Officer measured the iron rod and it was found to be 32 cm long approximately. The said rod was also kept in a cloth parcel and sealed it with the seal of KS and then seized through seizure memo Ex.PW14/B. The seal was handed over to him after use. The Investigating Officer prepared the site map of the place of recovery which is Ex.PW14/C. The disclosure statement of Sunil is Ex.PW14/D. S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 35
54. PW14 in cross-examination could not say whether there is any blood stain appearing on the stone Ex.P-2 and iron rod Ex.P-1. The temporary debris/garbage site from where the recovery of stone and iron rod is shown, is in front of Swamy Narayan Mandir on the road that goes from ISBT to Chandgi Ram Akhada. Investigating Officer had asked public persons to join the investigation at the time of recovery from garbage but none joined the investigation. No photography/videography was got conducted. He had seen blood stains on stone and iron-saria. He was not having any equipment to test the blood stain. Investigating Officer did not conduct blood test proceedings at the place of recovery pertaining to blood stains found on the stone and iron saria. He has accepted the suggestion that the saria recovered is a common type saria readily available in the market. There was no other identification mark on the said saria except that the recovered saria was bent from its one side.
55. Inspector Karan Singh Rana (PW18) is the Investigating Officer who also corroborated testimony of other two recovery witnesses (PW10 and PW14). His deposition qua recovery of iron rod and stone at the instance of the accused Sunil @ Rajan is that on 08.05.2017, he took one day police custody remand of accused Sunil vide application dated 08.05.2017 which is Ex.PW18/I. During said remand of accused Sunil lead them to the place of incident from where he got recovered weapon of offence i.e. piece of stone and iron rod /saria which were found lying in garbage near S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 36 the spot. Then he converted both weapon of offence into cloth pullanda separately and sealed the same with seal of KS. Then he took both weapon of offence in police possession vide separate seizure memo which are Ex.PW14/A and Ex.PW14/B (wrongly mentioned in evidence as P14/B). He prepared site plan of the place of recovery of weapon of offence at the instance of accused Sunil which is Ex.PW14/C. He handed over seal to Sub-Inspector Abhijeet, after use. Thereafter, they came back at police station and he deposited case property in the malkhana.
56. In cross-examination, PW18 has stated that he did not get videography/photography of the recovery proceedings of weapon of offense. On that day, he requested public persons to join the investigation. He did not produce weapon of offense before the court of learned Metropolitan Magistrate after recovery.
57. Hence, as per Investigating Officer Inspector Karan Singh Rana (PW18), Sub Inspector Abhijit Kumar (PW10) and Head Constable Anil Kumar (PW14), weapon of offence i.e. iron rod/saria and a stone were recovered from a pile of garbage at Tikona Park in front of Swami Narayan Mandir, Ridge Road, Delhi at the instance of accused Sunil on 08.05.2017. At the time of said recovery, the eye witness Ravi Shankar Jha (PW1) was not present. As per the case of prosecution PW1 is the sole eye witness of the incident. As per PW1 accused Sunil hit a stone on the face of deceased Kalia and S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 37 gave saria blow on his stomach. Investigating Officer did not get conducted the Test Identification Parade of the said iron rod and the stone from the eye witness Ravi Shankar Jha. During deposition of Ravi Shankar Jha only Saria was produced and the stone was not produced by the prosecution. Witness Ravi Shankar Jha has stated in his deposition that the Saria which was used by the accused was a normal Saria and it was not having any specific mark or sign. When the said Saria was produced during deposition of Ravi Shankar Jha by the MHC (M), he deposed that the weapon of offence i.e. the iron saria used at the time of offence, was like the one shown to him. Said saria has been marked as Ex.P-1. In other words the witness has not specifically identified the saria which was used at the time of commission of offence. He has not deposed that the Saria which has been shown to him, is the same saria which was used by the accused Sunil during occurrence. The prosecution has produced the stone during deposition of Sub Inspector Abhijit Kumar (PW10), Head Constable Anil Kumar (PW14) and Inspector Karan Singh Rana (PW18) but same was not produced during the deposition of witness Ravi Shankar Jha (PW1).
58. Further, Sub Inspector Abhijit Kumar (PW10) in his cross- examination stated that there were some stains/marks (Dhaba) on the rod as well as stone but he could not say whether the said stains were blood stains or anything else. But, Head Constable Anil kumar (PW10) has deposed in cross-examination that he had seen blood S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 38 stains on stone and iron-saria. There is no evidence to show that said stone and iron rod were produced before the Doctor who got conducted medical examination of the deceased or postmortem. There is no medical evidenec to the effect that the injuries received by the deceased, were/could have been caused by the said stone or iron rod. There is also contradiction in respect of the police officer to whom the seal was handed over after use. As per two recovery witnesses (PW10 and PW14), the seal after use was handed over to PW14 but other recovery witness PW 18 (Investigating Officer) deposed that said seal was handed over to PW10. In Manoj Kumar Soni v. The State of Madhya Pradesh, 2023 NSC 705, the Hon'ble Supreme Court has held/observed that admissibility and credibility are two distinct aspects and the latter is really a matter of evaluation of other available evidence.
59. Therefore, this Court is of the view that it is not proved by the prosecution beyond reasonable doubt that in pursuance of disclosure statement of accused Sunil, weapens of offence that is iron saria (Ex.P-1) and stone (Ex.P-2), were recovered and that the said weapons which have been allegedly recovered are the same which were used by the accused Sunil in commission of the present offence.
Medical evidence
60. Dr. Asitesh Bajwa (PW4) was serving as Specialist Forensic S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 39 Medicines at Aruna Asaf Ali Hospital on 05.05.2017. He has conducted postmortem on the dead body of deceased of the present case and given his report. This witness was not cross-examined by the accused. Hence, his postmortem report has been proved as Ex PW4/A. It has also been proved that cause of death in this case was asphyxia as a result of ante mortem ligature strangulation which was sufficient to cause death in an ordinary course of nature; that all the injuries were ante-mortem in nature and origin and fresh before death except injury no. 5 which was postmortem injury; that time that elapsed since death was 5 to 6 days.
61. His deposition is that on that day, a dead body of unknown male aged about 35-40 was received in the mortuary alongwith the thirteen inquest papers including the application for postmortem. The dead body was brought for postmortem with alleged history of dead body being found inside Sri Narsingh Giri Udyan (Tikona Park) in front of Swami Narayan Mandir, Ring Road, Civil Lines, Delhi vide DD No. 18A, Police Station Civil Lines on 02.05.2017 by Inspector Karan Singh Khurana. Dead body was found wrapped in a body bag wearing jeans pant with belt which was burnt at places. A greenish cloth was seen encircling the neck with fixed knot at front of neck. Both the hands tied with greenish cloth piece. Clothes were dirty. Rigor mortis had passed off. Post-mortem staining could not be ascertained due to decomposition. Nails showed bluish discoloration. Circumference of neck was 34 cm.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 40 Greenish black discoloration of skin all over the body. Maggots were seen crawling at different parts of the body and at natural orifices. Skin slippage was seen at places. Scalp hair and nails could be puled out with ease. Face and genitals were bloated.
62. During postmortem examination by PW4, the following injures were observed on the body of the deceased by him:-
External Injuries
1. Dark reddish brown imprint abrasion with groove in the form of ligature mark was encircling the neck horizontally at the leval of thyroid cartilage in length is encircling the neck. Width of the ligature mark was 3.5 cm and was placed 3 cm below chin at midline, 2.8 cm below right angle of mandible and 3 cm below left angle of mandible.
On dissection: Soft tissues underneath the ligature mark was avascular with parchment like consistency. Infiltration of blood was present above and below the ligature mark. Lymph nodes above and below the mark were congested and engorged. Hyoid bone showed outward fracture at both cornu. Thyroid cartilage showed fracture at greater horn and left side, infiltration of blood present at fractured site.
2. Lacerated would bone deep measuring 8 x 5.1 cm was present at left side of face, 3 cm below left eye. Margins were ragged. Clotted blood was present at site.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 41
3. Lacerated would bone deep measuring 22 x 4.7 cm was present at front of right thigh at middle 1/3rd. Margins were ragged. Clotted blood was present at site.
4. Avulsed lacerated would measuring 15 x 5 cm at left side of abdominal wall, loops of intestine was seeing coming out of the wound. Margins of the wound were ragged with presence of maggots at centre of the wound. Infiltration of blood present at deep tissues and surrounding soft tissues. Clotted blood was present at site.
5. Superficial to deep burn injury was present at both legs involving lower abdominal wall and pelvis. Pubic hair shows burning and sinzing. No red line of demarcation, vital sign of antemortem injury were seen between burnt and unburnt areas.
Internal Examination Sub scalp bruise was seen at left parieto-temporal region of scalp. Fracture was seen on left temporal bone. Brain, Menings and Vessels were liquefied. Clotted blood was present at site. Fracture of base of the skull was seen at left middle cranial fossa with infiltration of blood present at fractured ends.
Small intestine was found lacerated corresponding to injury no. 4. Stomach contained about 150 cc of partially digested food material.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 42 Right chamber of heart was full of fluid and clotted blood. Left Chamber was empty. All the organs showed early signs of putrefaction.
63. The opinion of PW4 is that cause of death was asphyxia as a result of ante mortem ligature strangulation which was sufficient to cause death in an ordinary course of nature; that all the injuries were ante-mortem in nature and origin and fresh before death except injury no.5 which was postmortem injury; that time that elapsed since death was 5 to 6 days.
64. After postmortem examination, PW4 preserved articles that is viscera preserved in common salt solution for the chemical analysis; Sealed clothes; Teeth for DNA and Ligature material. Exhibit were sealed with separate seal of "CMO I/C AAAGH SABZI MANDI MORTUARY, DELHI".
Site Plan
65. Inspector Manohar Lal (PW5) who serving as Inspector, Draftsman, North West District, Ashok Vihar, Delhi on 29.06.2017, at the request of Inspector Karan Singh Rana (PW18), reached Police Station Civil Lines and from there he alongwith Inspector Binod Kumar reached the place of occurrence i.e. Narsingh Giri Uddyan (Tikona Park), near Sanskrit Mahavidyalya, Ring Road, Civil Lines, Delhi. There, at the instance of Inspector Karan Singh S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 43 Rana, he inspected the spot and took measurements and rough notes of the spot. On 30.06.2017, on the basis of those rough notes and measurements, he prepared scaled site plan which is Ex PW5/A. Rough notes were destroyed after preparation of scaled site plan. The scaled site plan was handed over to the Investigating Officer. This deposition has been corroborated by Investigating Officer Inspector Karan Singh Rana (PW18). There is nothing in his cross- examination. Hence, it has been proved that PW5 prepared scaled site plan of the place of occurrence (Ex. PW5/A) i.e. Narsingh Giri Uddyan (Tikona Park), near Sanskrit Mahavidyalya, Ring Road, Civil Lines.
Case Property
66. Head Constable Jitender (PW11) was working as MHC(M) at Police Station Civil Lines on 02.05.2017. From his deposition, following have been proved:-
(i) on 02.05.2017, Sub-Inspector Abhijit Kumar (PW10) deposited in the malkhana three sealed parcels bearing the seals of "AK" and Marks 1, 2 and 3 and he (PW11) recorded entry no. 2359 in this regard in the register no. 19 of the malkhana, copy of said entry is Ex PW11/A.
(ii) On 05.05.2017, Inspector Karan Singh Rana (PW18) deposited in the malkhana with him (PW11) four sealed parcels and one S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 44 sample seal of hospital and he recorded entry no. 2362 in this regard in the register no. 19 of the malkhana, copy of said entry is Ex PW11/B.
(iii) On 07.05.2017, Inspector Karan Singh Rana (PW18) deposited in the malkhana personal belongings of the accused persons, namely, Jeevan Singh Negi and Sunil and he recorded entry no.
2365 in this regard in the register no. 19 of the malkhana, copy of said entry is Ex PW11/C.
(iv) On 08.05.2017, Inspector Karan Singh Rana (PW18) deposited in the malkhana two sealed parcels with the seal of KS. As per the seizure memo, one parcel was containing blood stained stone and other parcel was containing iron saria. He recorded entry no. 2367 in this regard in the register no. 19 of the malkhana. Copy of said entry is Ex PW11/D.
(v) On 12.07.2017, material exhibits were sent to FSL through Constable Vipin vide Road Certificate no. 96/21/17, copy of which is Ex PW11/C. In this regard, a note was recorded at point A1 in Ex PW11/B. Constable Vipin (PW16) has corrobarated about depositing the exhibits in FSL Rohini from the possession of MHC(M) (PW11) vide RC No.96/21/17. PW 16 also proved that he deposited aforesaid exhibit in FSL Rohini along with forwarding letter given by Investigating Officer (PW18) and after depositing S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 45 exhibits in FSL, he handed over copy of receiving/ acknowledgement to MHC(M) and exhibits were intact while remained in his custody.
(vi) On 28.09.2017, FSL report was brought by Assistant Sub- Inspector Vinay Pal and submitted in the malkhana. In this regard, a note was recorded at point A2 in Ex PW11/B.
(vii) On 12.07.2017, he (PW11) sent six sealed parcels along with one sample seal of Subzi Mandi mortuary to FSL vide RC No. 95/21/17 through Constable Yogesh (PW15). In this regard, a note was recorded at point B in Ex PW11/D. Constable Yogesh (PW15) has also corroborated this piece of evidence deposed by PW11 deposing that on 12.07.2017 he was posted at Police Station Civil Line as Constable and on that day, on the direction of Investigating Officer, he took six sealed exhibits along with sample seal for depositing the same in FSL Rohini from the possession of MHC(M) Police Station Civil Line vide RC No.95/21/17. PW 15 also proved that he deposited aforesaid exhibits in FSL Rohini along with forwarding letter given by Investigating Office and after depositing exhibits in FSL, he handed over copy of receiving/ acknowledgement to MHC(M). PW15 further proved that said exhibits were intact while remained in his custody.
(viii) On 03.10.2017, FSL report was brought by Constable S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 46 Samandar and submitted in the malkhana. In this regard, a note was recorded at point C in Ex PW11/D.
(ix) On 05.04.2018, FSL report was brought by Head Constable Vinod and submitted in the malkhana. In this regard, a note was recorded at point D in Ex PW11/D. Investigating Officer
67. Inspector Karan Singh Rana (PW18) is the Investigating Officer who has deposed about other parts of investigation also. He has deposed also that he prepared site plan of the place of incident at the instance of PW10 which is Ex.PW10/E. PW10 handed over three sealed pullandas containing exhibits lifted from the spot, sealed with the seal of AK, to him which he earlier seized vide seizure memo Ex.PW10/B and he deposited the same in the Malkhana.
68. PW18 has also deposed that on 05.05.2017, he got conducted postmortem examination of deadbody of deceased at the Mortuary of Subzi Mandi vide request letter dated 05.05.2017 which is Ex.PW4/B1, supported with brief facts of the case Ex.PW4/B2, copy of FIR which is Ex.PW4/B3 and Inquest Form which is Ex.PW4/B5. Later on, he collected postmortem and placed the same with charge-sheet which is Ex.PW4/A. S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 47
69. PW18 has also deposed that during postmortem examination, concerned Autopsy Surgeon handed over four sealed pullandas containing Viscera, burnt cloth pieces, ligature material and teeth of deceased for DNA examination alongwith sample seal which he took into police possession vide seizure memo which is Ex.PW10/F and after postmortem examination, he handed over custody of deadbody to Constable Kapil for cremation as no relative/claimant of the deadbody could be traced at that time. Constable Kapil took deadbody to cremation ground Sarai Kale Khan by ambulance vide deadbody receipt which is Ex.PW18/F and after cremation he handed over cremation receipt to him which is on Ex.PW18/A from point X to X1. Thereafter, he came back at police station and deposited sealed pullandas in the Malkhana which were handed over by Autopsy Surgeon to him. On 12.07.2017, he sent pullandas of exhibits to FSL through Constable Yogesh (PW15) and Constable Vipin (PW16).
70. PW18 has also deposed that during course of investigation, he collected photographs clicked by Mobile Crime Team and FSL and placed the same with the charge sheet. He collected PCR call form and placed the same with charge sheet which is Ex.PW8/A. He collected SOC report of both divisions of FSL i.e. Chemistry & Bio and placed the same with charge sheet which are Ex.PW9/A and Ex.PW12/A. Identity of deceased was established through PW1 Ravi who identified deceased as Kalia after seeing his photographs.
S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 48 FSL result regarding DNA examination is marked as Mark PW18/K1 (colly). FSL result pertaining to viscera analysis running in two pages is marked as Mark PW18/K2. On 09.03.2021, he filed FSL result i.e. FSL report No.FSL-2017/B-5218, Chemistry No.4243/17 dated 29.11.2017 pertaining to FSL opinion regarding burnt cloth of deceased vide his application dated 09.03.2021 Ex.PW18/L. FSL result running in two pages is marked as Mark PW18/L-1.
71. In view of above discussion, I do not find any infirmity in the prosecution establishing the incident as set up in the FIR. FIR was promptly lodged after receiving information about dead body of the deceased Kalia. The prosecution story as set up in the FIR appears to be probable. The sole eye-witness Ravi (PW1) has fully supported the prosecution story and have narrated the same incident as it occurred. It is clear from the evidence of PW1 Ravi that accused Sunil @ Rajan @ Jaat alongwith co-accused was sharing the common intention to cause murder of the said deceased. The medical evidence (PW-4) fully corroborates the prosecution story. According to the medical evidence (PW4), cause of death in this case was asphyxia as a result of ante mortem ligature strangulation which was sufficient to cause death in an ordinary course of nature and all the injuries were ante-mortem in nature and origin and fresh before death except injury no. 5 which was postmortem injury and time that elapsed since death was 5 to 6 days. From the deposition S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 49 of Eye-witness Ravi and Medical Evidence it has been proved beyond reasonable doubt that death of deceased Kalia was homicidal and he was murdered by accused Sunil @ Rajan @ Jaat and co-accused because deceased demanded his money from the said accused persons. Formal witnesses and other witnesses (PW2, PW3, PW5 to PW18) have discharged their burden by proving the police papers and other documentary evidence placed on record by the prosecution. Thus, the evidence of the prosecution witnesses inspires confidence of this court and is sufficient enough to form an opinion to the effect that the accused Sunil @ Rajan @ Jaat along with co-accused in furtherance of their common intention have committed the offence of murder of the deceased Kalia on or about 29.04.2017 and he deserves to be convicted for the offence punishable under section 302 read with section 34 of the IPC.
72. The accused cannot be convicted for the offence under section 201 of the IPC because there is no evidence on record that the accused had concealed the dead body of the deceased or the identity of the deceased. I do not find any evidence on record to show that the accused had tried to screen himself from the legal punishment or he had misled any one. There is no evidence to establish that he had caused any evidence of the commission of crime i.e. murder, to disappear. There must be disappearance of some evidence of the commission of offence; removing the corpse of a murdered man from the scene of murder to another place does not come under S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 50 section 201 of the IPC as the removal does not cause the disappearance of evidence of commission of the murder. In this regard, the judgment passed by the Hon'ble Division Bench of Allahabad High Court in case of Ghulam Rasool v. State of UP, 2022 SCC OnLine All 901 can be referred wherein it was held that removing the corpse of a murdered man from the scene of murder to another place does not come under section 201 of the IPC as the removal does not cause the disappearance of evidence of commission of the murder.
73. Hence, there is clear, clinching and trustworthy evidence on the record to bring home the guilt of the accused Sunil @ Rajan @ Jaat for the offence under section 302 of the IPC and therefore, he is held guilty and convicted for the offence of murder punishable under section 302 read with section 34 of IPC but he is acquitted for the offence punishable under section 201 of IPC.
Dated: 19.09.2023 (Sanjeev Kumar) Special Judge (NDPS)-02, Central District, Tis Hazari Courts, Delhi S.C. No. 749/2017 FIR No. 0118/2017 PS:Civil Lines 51