Delhi District Court
State vs Jagdish @ J.K.Jaggu on 6 March, 2025
IN THE COURT OF SH. PANKAJ ARORA: ADDL.
SESSIONS JUDGE-04: NORTH-EAST DISTRICT:
KARKARDOOMA COURTS: DELHI
SESSIONS CASE No. 143/2016
CNR No. DLNE01-003233-2016
FIR No. 257/2016
P.S.: Gokalpuri
U/s : 302/34 and 174A of IPC
STATE
Versus
(1) Jagdish @ J.K. @ Jagga
s/o Sh. Mohan Lal
r/o H. No. A-188, A-Block
Gokalpuri, Delhi-110094
(2) Akash
s/o Jagdish Kumar @ JK
r/o H. No. A-188, A-Block
Gokalpuri, Delhi-110094
Date of Institution : 22-08-2016
Date of Argument : 27-02-2025
Date of Judgment : 06-03-2025
JUDGMENT
1. Brief facts of the case are that on 07-04-2016, at about 9:13 pm, an information was received at PS Gokalpuri through Wireless Operator that some people are attacking one person with a brick under Gokalpuri flyover, in a park. The information was reduced into writing vide 78B and the same was marked to ASI Murari Lal (hereinafter referred to as first IO/ investigating officer). Thereafter, the IO along with Ct. Sudhir reached the FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 1 of 47 spot. Upon inquiry, they came to know that victim had already been taken to hospital by PCR van. The complainant Ravi Kumar met at the spot and got his statement recorded. The complainant stated that he was working as a TSR driver and used to drive between Loni roundabout to Shahdara. On that day, he had taken off from work. On 07-04-2016, he went to Gokalpuri market for purchasing articles in connection with Nav Durga Puja. At about 9 pm, when he was passing on a road adjoining park on the northern direction of Gokalpuri flyover, he saw that some people were beating one boy inside the park. When he entered inside the park, he found that his friend Neeraj's brother namely Puneet was being beaten by one Jagdish Kumar @ JK and his son Aakash along with one more person with leg and fist blows, bottle and stone piece. Accused Aakash was holding a glass bottle and accused Jagdish Kumar was holding stone piece. After beating Puneet, they threw him in the drain. He came to know that scuffle had taken place on account of some previous enmity. Somebody made 100 number call. Thereafter, the IO went to hospital and collected MLC of victim wherein the doctor concerned had endorsed, 'A/H/O physical assault at Golakpuri below Flyover around 9 pm dated 07-04-2016'. Multiple lacerated wounds were reported in the MLC. On the basis of above-stated statement of complainant and MLC, the present FIR came to be registered for the offence punishable u/s 308/34 of IPC. Crime team was called. Site plan was prepared at the instance of complainant. Blood-stained soil, stone piece and some hairs were lifted from the spot. The Crime Team came and inspected the spot, took photographs and prepared scene of crime report. The victim Puneet was referred to Safdurjung Hospital in FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 2 of 47 an unconscious condition on 08/04/2016. On 14-04-2016, an information was received through Duty Constable Sandeep regarding death of victim Puneet during treatment at Safdurjung Hospital vide DD no. 23A. Thereafter, section 304/34 of IPC added in the FIR. Thereafter, IO reached at Safdurjung Hospital where dead body of deceased was got identified through his brother Neeraj and jija Devi Sahay. Postmortem on the dead body was got conducted at mortuary of Safdurjung Hospital. After postmortem, the dead body was handed over to his brother Neeraj and other relatives. On 19-04-2016, on the pointing out of brother of deceased namely Neeraj and complainant, accused Jagdish Kumar @ JK @ Jagga was apprehended on the basis of secret information at a place near BSES office, near Gokalpuri flyover. He was interrogated and during interrogation, he confessed about committing assault upon the deceased at Gokalpuri Flyover. His disclosure statement was recorded. He was arrested and personally searched. Accused was produced before concerned court and an application seeking PC remand was moved but the same was dismissed. Accused was sent to JC. Thereafter, efforts were made to search the co-accused Aakash but he was found to be absconding. On 14-06-2016, the IO obtained NBWs against co-accused Aakash. After completion of necessary formalities, initially, chargesheet was filed against accused Jagdish Kumar @ JK @ Jagga for the offence punishable u/s 304/34 of IPC. Further investigation was carried out by the second IO Inspector Ashok Kumar. He made efforts to search co-accused Aakash but in vain. He got initiated proceedings u/s 82 of Cr.P.C. against accused Aakash. Subsequently, accused Aakash was declared proclaimed offender FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 3 of 47 vide order dated 10-03-2017. On 05-03-2018, accused Aakash was arrested on the basis of secret information from MCD parking, A-Block, Gokakpuri by the raiding team of PS Gokalpuri. Kalendra vide DD no. 21A was prepared. On 06-03- 2018, accused Aakash was formally arrested by by IO Inspector Gian Chand from the lock-up. Pointing out memo of place of occurrence was prepared at the instance of accused Aakash. Thereafter, supplementary chargesheet was filed qua accused Aakash.
COMMITTAL
2. After taking cognizance and compliance of section 207 of Cr.P.C., the present case was committed to the Courts of Sessions vide order dated 09-08-2016 by the Ld. CMM/NE/KKD. The same was allocated by the then Ld. District and Sessions Judge to the Ld. Predecessor of this Court. CHARGE
3. After hearing the arguments and finding that prima facie case was made out against the accused persons for the offence punishable u/s 302/34 of IPC and accused Aakash was also charged for the offence punishable u/s 174A of IPC, charges were framed by ld. Predecessor against the accused persons, to which they pleaded not guilty and claimed trial. Thereafter, prosecution got examined as many as 20 witnesses. PROSECUTION EVIDENCE
4. PW1 Dr. Jitender Pratap Singh, SR, Forensic Medicine Safdarjung Hospital, N.Delhi was deputed by the HOD to depose on behalf of Dr. Mukesh Kumar Bansal, who had left the service from the hospital and his present whereabouts were not known to him. After seeing the postmortem report No. 720/16 dated FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 4 of 47 15.04.2016 of deceased Puneet prepared by Dr. Mukesh Kumar Bansal, PW1 identified writing and signatures of Dr. Mukesh Kumar Bansal in official capacity as he had performed his duties with him in the hospital. He deposed that PM report bears signatures of Dr. Mukesh Kr. Bansal at points X1, X2 and X3 and same is Ex. PW1/A. As per PM report, 30 injuries were found on the person of dead body which are mentioned in detail in the aforesaid PM report. As per PM report, cause of death was given as "death is due to cranio-cerebral damage as a result of injuries sustained to head produced by blunt force impact which are sufficient to cause death in ordinary course of nature". All injuries were ante- mortem in nature. As per PM report, 14 inquest papers were initialed by the doctor. As per PM report, blood on gauze of deceased was taken, sealed and handed over to Police alongwith sample seal.
In his cross-examination by Sh. R. K. Kochar, Ld. Counsel for accused, PW-1 affirmed that he has no personal knowledge about this case. He affirmed that PM report Ex.PW1/A was not prepared in his presence by Dr. Mukesh Kumar Bansal. He affirmed that Dr. Mukesh Kumar Bansal had not conducted postmortem of deceased Puneet in his presence. Injuries mentioned in PM report were possible by blunt object but he cannot say whether it was danda, lathi or sariya or any other blunt object.
PW1 was recalled after arrest of accused Aakash. He reiterated the facts as deposed by him earlier in his deposition dated 21-03-2017.
In his cross examination by Sh. A. K. Pandey, Ld. Counsel FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 5 of 47 for both the accused persons PW-1 affirmed that he has no personal knowledge about this case. He affirmed that PM report Ex. PW1/A was not prepared in his presence by Dr. Mukesh Kumar Bansal. It is affirmed that Dr. Mukesh Kumar Bansal had not conducted postmortem of deceased Puneet in his presence. Injuries mentioned in PM report were possible by blunt object but he cannot say whether it was danda, lathi or sariy or any other blunt object.
PW2 SI Mukesh Chauhan was the In-charge of Crime Team, which inspected the spot on 07-04-2016 at about 11:15 pm. He has proved the scene of crime report prepared by him as Ex. PW2/A. After seeing 20 photographs Mark PW2/A1 to PW2/A20, he identified the same.
He was cross-examined by ld. Defence counsel but nothing material came out therein.
PW2 was recalled after arrest of accused Aakash. He reiterated the facts as deposed by him earlier in his deposition dated 21-03-2017.
He was cross-examined by ld. Defence counsel but nothing material came out therein.
PW3 Dr. Arvind, CMO GTB hospital, Delhi identified writing and signatures of Dr. Sumit, JR on MLC No. C-2228/16 dated 07.04.2016 prepared by Dr. Sumit, who had left the service from the hospital and his present whereabouts were not known to him. He identified writing and signatures of aforesaid doctor in official capacity as he had performed his duty in hospital under his supervision in the year 2016. MLC of unknown patient (Puneet) S/o Unkown (Rattan Lal) 35 years male who was brought by HC Satender PCR official for medical examination FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 6 of 47 with alleged history of physical assault at Gokul Puri below flyover at about 9 P.M. on 07.04.2016. As per MLC, at the time of medical examination i.e. at about 9:50 P.M. on 07.04.2016, injured was unconscious and he was declared unfit by the doctor Sumit. As per MLC, general condition of patient was normal. History of LOC was present.
As per MLC on local examination, 11 injuries were found on the person of injured. Same are mentioned in detail in the MLC. After giving first aid, patient was referred to neuro-trauma, ortho, ENT, and surgery departments for further management and examination, MLC Ex.PW3/A bears signatures of Dr. Sumit at point A and his name at point X. In his cross examination by Sh. R. K. Kochar, Ld. Counsel for accused PW-3 affirmed that neither patient was examined nor MLC Ex.PW3/A was prepared in his presence by Dr. Sumit. As per the MLC, name of patient, his parentage, address and brought by person on the top columns of MLC is mentioned as unknown. Name of the patient Puneet, his parentage Rattan Lal and his address with name of brought by person has been mentioned subsequently in MLC Ex.PW3/A. Name and parentage of patient, address and name of brought by person had been mentioned by the doctor in his presence on the MLC. Aforesaid entries (name of patient, parentage, address etc.) were filled up by concerned doctor within 10-15 minutes after the examination of injured. Dr. Sumit can tell by whom name of injured and his parentage etc were disclosed to him. As per MLC, alleged history was disclosed by brought by person. He cannot say at what time ASI Murari Lal had collected MLC from Dr. Sumit. He cannot say that the injuries sustained by injured in the MLC is possible by FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 7 of 47 danda, iron rod, bainth, baseball bat, but those were possible by any blunt object.
The Ld. Counsel for accused Akash raised no objection if the examination in chief dated 21-03-2017 is read in evidence and therefore, PW3 was not re-examined subsequently in the presence of accused Aakash.
PW4 Ravi Kumar is the complainant in this case. He deposed that in the year 2016, he was working as a labourer. On 07.04.2016, at about 8 or 8:30 P.M., he was present at his home. Three police officials of PS Gokul Puri came at his home and took him to PS. They obtained his signatures on some papers and asked about the incident which had taken place with Puneet. Some other persons were also brought at PS by aforesaid police officials and they had made inquiry from them about the incident which had taken place with Puneet. No incident with Puneet had happened in his presence. He did not know accused Jagdish @ J.K. @ Jaggi present in court standing in dock. He was not aware by whom injuries were caused to Puneet.
After seeing the statement Mark PW4/1 of witness dated 07.04.2016 recorded by ASI Murari Lal, he admitted his signatures at point A. He volunteered that when he had put his signatures on the aforesaid paper, it was blank. Police had not lifted anything in this case in his presence.
After seeing two seizure memos, he admitted his signatures at point A which are Mark PW4/2 and Mark PW4/3.
He was not aware about the spot of present case where incident with Puneet had taken place. He had not shown spot of this case to police at any point of time. He had not joined proceedings of this case with Police at any point of time.
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 8 of 47The witness was cross-examined by Ld. Addl. PP for State as he was resiling from his earlier statement.
In his cross-examination by Ld. Addl. PP for State, he denied the suggestion that he deposed falsely in order to save the accused present in court namely Jagdish as he has settled the matter with him. He denied the suggestion that he deposed falsely that police had obtained his signatures on blank papers. He denied the suggestion that Police officials of PS Gokul Puri had reached at spot i.e. under Gokul Puri flyover in the park in his presence at about 9.00 or 9.15 P.M. He denied the suggestion he met to Police officials of PS Gokul Puri there or that he had claimed to be eye witness of the incident which had taken place with Puneet.
He affirmed that in the month of April 2016 and before, he used to ply TSR between Shahdara to Loni Gol Chakkar. He denied the suggestion that on 07.04.2016 at about 9 PM, he was going to market to purchase some puja material via Gokul Puri Flyover as stated by him to Police in his statement. He volunteered that at that time, he was at his home.
He denied the suggestion that when he reached near park he saw some persons were giving beatings to one boy or that he went inside the park and saw that Puneet, brother of his friend Neeraj, was being beaten by Jagdish Kumar @ J.K., his son Akash and some other their associates or that Jagdish and Akash were earlier known to him or that aforesaid Jagdish, his son and their associates were giving beatings by kick blows, fist blows, bottle blows and stones or that he had seen bottle in the hand of Akash or that he had seen piece of stone in the hand of Jagdish as stated by him to Police in his statement.
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 9 of 47He denied the suggestion that during the beatings, they had reached at drain near park or that they had pushed him in the drain or that the aforesaid quarrel had been taken place on previous enmity as stated by him to Police in his statement. He denied the suggestion that in his presence someone made call at 100 number from the spot or that police zypsy and local police came at spot or that he had told to police that Puneet was beaten by Jagdish Kumar, who is BC or that Puneet was also beaten by Akash and their some associates with bottle, stone, kick blows and fist blows or that aforesaid Jagdish, Akash and their some associates had caused injuries by the aforesaid weapons on the head and face of Puneet in his presence. He denied the suggestion that ASI Murari Lal had recorded his statement Mark PW4/1 or that he had read over the same to him. He denied the suggestion that ASI Murari Lal recorded supplementary statement at spot on 07.04.2016. He denied the suggestion that he had joined investigation with ASI Murari Lal at spot or that ASI Murari Lal had lifted blood, blood smeared clay and earth control from the spot in his presence or that he had prepared three parcels there or that parcels were sealed with seal of ML or that seizure memo Mark PW4/3 was prepared at spot in his presence or that he had put his signatures at point A on aforesaid seizure memo Mark PW4/3 as stated by him in his supplementary statement to Police on 07.04.2016.
He denied the suggestion that in his presence ASI Murari Lal had taken into possession the red colour piece of stone from the spot which had been used by accused Jagdish to cause injuries to Puneet or that aforesaid stone was converted in a parcel or that parcel was sealed with seal of ML or that same was FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 10 of 47 seized vide seizure memo Mark PW4/2 as stated by him to Police in his statement. He denied the suggestion that ASI Murari Lal had handed over the seal after use to Ct. Sudhir who had accompanied them at the time of sealing and seizing the blood and piece of stone etc. He denied the suggestion that he had joined investigation with ASI Murari Lal on 19.04.2016. He denied the suggestion that brother of deceased Puneet namely Neeraj had also joined investigation on 19.04.2016 or that ASI Murari Lal had made search of accused Jagdish and his son Akash in their presence in the area of Gokul Puri Main Market and BSES office, Gokul Puri area or that on that day at about 11 A.M. on the pointing out and identification by him and Neeraj, ASI Murari Lal overpowered accused Jagdish present in court or that ASI Murari Lal arrested accused Jagdish present in court or that arrest papers were prepared in their presence or that accused Jagdish had made disclosure statement in their presence or that disclosure statement was recorded by ASI Murari Lal in their presence as well as in presence of Ct. Sudhir at place of arrest near Market, BSES Office, Gokul Puri, Delhi as he stated to Police in his statement dated 19.04.2016.
He denied the suggestion that he was intentionally not supporting the prosecution case in order to save the accused Jagdish as he has been won over by him. He denied the suggestion that he was intentionally refusing to identify the piece of stone used as weapon by accused Jagdish in the incident of present case. He denied the suggestion that he had shown the place of incident to ASI Murari Lal or that he had prepared unscaled site plan of place of incident of present case on his pointing out. He denied the suggestion that he deposed falsely.
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 11 of 47In his cross examination by Sh. R.K. Kochar, Ld. Counsel for accused PW-4 affirmed that he was facing trial in 7 criminal cases and all the cases are false cases. Police kept him in the PS for inquiry of this case upto 12:30 A.M. in the intervening night of 07-08.04.2016.
He was re-examined again after filing of supplementary chargesheet of accused Aakash. He deposed that on 07-04-2016 at about 08:30 p.m. when he was present at his house at that time the 3-4 official come to his house they made enquiry from him about Puneet who was his friend and took him to police station gokalpuri. At the PSI was made to sit for some time. At that time police official took his signature on some blank papers. Police made enquiries from him about the murder of Puneet and he had told the police that he was not present at the spot at the time of incident. From the PS police has taken him to the GTB hospital. Puneet was not found there as he was referred to some other hospital. His statement was not recorded by the police in this case. He deposed that he can identify his signatures on the papers which police had obtained at the PS. The witness was shown complaint mark PW4/A. On seeing the same, the witness identified his signatures at point A. The complaint was exhibited as Ex. PW4/A. The seizure memos Ex. PW9/A and Ex PW9/B were shown to the witness, who identified his signatures at point A on both the memos. He volunteered that all the aforesaid documents were blank when he had signed on the same. He did not know anything about this case.
The witness was cross-examined by Ld. Addl. PP for State as he was resiling from his previous statement.
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 12 of 47In his cross examination done by Id. Addl. PP for State witness denied that he was present at the spot when the incident had taken place on 07.04.2016 at about 09.00 p.m. He denied the suggestion that in his presence, accused Jagdish @ JK and his son namely Aakash had caused injuries to Puneet. Police officials had come from PS Gokal Puri at the spot ie. under Gokal Puri flyover in the park at about 09-09.15 p.m. He denied the suggestion that at that time he had met those police officials there and he had claimed to be an eyewitness to the incident which had taken place with Puneet. He denied the suggestion that at that time, his statement Ex. PW4/A was recorded by the police or that he had signed the same at point A after going through it. He affirmed that in the month of April and before, he used to ply TSR between Shahdara to Loni Gol Chakkar. He denied the suggestion that on 07.04.2016 at about 09.00 pm, he was going to market to purchase some pooja material to perform Durga Pooja via Gokal Puri flyover. He denied the suggestion that he had stated this fact in his statement given to the police.
He denied the suggestion that when he reached near park he saw that some persons were beating a boy or that he went inside the park and saw that Puneet, who was brother of his friend Neeraj, was being beaten by Jagdish @ JK and his son Aakash and their associates or that Jagdish and Aakash were earlier known to him. The attention of witness was drawn towards both the accused Jagdish and Aakash who are standing in the dock. On seeing them, witness stated that he did not know both these persons. He denied the suggestion that he knew both the accused persons prior to the incident. He further denied the suggestion that at that time, Jagdish, Aakash and their associates FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 13 of 47 were beating Puneet with kick blows, fist blows, bottle blows and stones or that at that time, he had seen bottle in the hand of Aakash or that he had seen stone in the hand of Jagdish. He denied the suggestion that he had stated these facts in his statement.
He denied the suggestion that during the beatings, they had reached at drain near park where they had pushed Puneet in the drain or that at that time he had come to know that the aforementioned incident had taken place due to previous enmity between them. He denied the suggestion that he had stated these facts in his statement. He further denied the suggestion that in his presence, some one had made a call at 100 number from the spot or that police gypsy and local police had come to the spot or that at that time, he had told the police that Puneet was beaten by accused Jagdish Kumar, who is B.C. or that his son Aakash and other associates had beaten Puneet with bottles, stone and leg and kick blows due to which he had sustained injuries on his head and face. He denied the suggestion that he had stated these facts in his statement.
He denied the suggestion that on 07.04.2016, his supplementary statement was also recorded by IO ASI Murari Lal. He denied the suggestion that in his presence, ASI Murari Lal had lifted blood, blood clay and earth control from the spot or that he had prepared three parcels thereof or that after sealing the same with the seal of ML, the same were taken by ASI Murari Lal vide seizure memo Ex.PW4/3 or that only after that, he had put his signature at point A. He denied the suggestion that he had stated these facts in his supplementary statement.
He denied the suggestion that ASI Murari Lal had also FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 14 of 47 taken one grey colour piece of stone from the spot which had been used by accused Jagdish to cause injuries to Puneet. He denied the suggestion that the aforementioned stone was converted into a parcel which was sealed with the seal of ML or that same was taken by ASI Murari lal vide seizure memo Ex.PW4/2. He denied the suggestion that seal after used was handed over to Ct. Sudhir by ASI Murari Lal who was also accompanying him at that time. He denied the suggestion that he had stated these facts in his supplementary statement.
He denied the suggestion that on 19.04.2016, he had again joined investigation of this case with ASI Murari Lal or that at that time, brother of deceased Puneet namely Neeraj had also joined investigation. He denied the suggestion that on 19.04.2016, ASI Murari Lal had made search of accused Jagdish and his son Aakash in their presence in PS Gokal Puri, main market and BSES office Gokal Puri area or that on that day about 11.00 a.m on the pointing out and identification by him and Neeraj, ASI Murari Lal had overpowered accused Jagdish or that he was arrested by him in this case or that his arrest papers were prepared in their presence. He denied the suggestion that accused Jagdish had made disclosure in their presence which was recorded by ASI Murari Lal. He denied the suggestion that he had stated these facts in his statement dated 19.04.2014. He denied the suggestion that accused Jagdish Kumar and accused Aakash, who are present in the court, alongwith their associates had beaten Puneet in his presence with kick blows, fist blows, bottle blows and stones. He denied the suggestion that he know both the accused persons prior to the incident or that he was intentionally not identifying them.
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 15 of 47He denied the suggestion that he had shown the place of incident to ASI Murari Lal or that he had prepared unscaled site plan of the place of incident on his pointing out. He denied the suggestion that he had not signed any blank papers. He denied the suggestion that he has been won over by accused persons or that due to this reason, he was not supporting the case of prosecution in order to save them.
In his cross examination by Sh. R.K Kochar, Counsel for both the accused PW-4 affirmed that police had detained him in the PS for the whole night in the intervening night of 07/08.04.2016. It was also affirmed that during the detention in the PS, police had obtained his signatures on number of blank papers. It was affirmed that he had not seen who had caused injuries to deceased Puneet. It was affirmed that police had lifted number of public persons from the area including him and detained them in the police station as suspects.
PW5 ASI Inderpal Singh was the Duty Officer posted at PS Gokalpuri at the relevant time. He has proved the rukka prepared by the IO ASI Murari Lal as Ex. PW5/A; endorsement made by him on the rukka as Ex. PW5/B; copy of FIR as Ex. PW5/C and certificate regarding correctness of FIR and proper maintenance of computer system as Ex. PW5/D. He was cross-examined by ld. Defence counsel but nothing material came out therein.
PW5 was recalled after arrest of accused Aakash. He reiterated the facts as deposed by him earlier in his deposition dated 17-05-2017.
PW6 HC Ajay Kumar was the investigating police official, who accompanied the IO ASI Murari Lal on 14-04-2016 to FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 16 of 47 Safdurjung Hospital. He deposed on the same lines on which ASI Murari Lal has deposed regarding proceedings conducted at Safdurjung hospital, whose testimony shall be dealt with later on.
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
PW6 was recalled after arrest of accused Aakash. He reiterated the facts as deposed by him earlier in his deposition dated 18-05-2017.
He was cross-examined by ld. Defence counsel but nothing material came out therein.
PW7 Ct. Sudhir was the investigating police official, who accompanied the IO ASI Murari Lal on 19-04-2016 at the time of arrest of accused Jagdish from a place near market, BSES office, main Wazirabad road, Gokalpuri. He proved the arrest memo of accused Jagdish, personal search memo and disclosure statement as Ex. PW7/A to Ex. PW7/C. He deposed on the same lines on which ASI Murari Lal has deposed regarding proceedings conducted at a place near BSES office, whose testimony shall be dealt with later on.
The witness was cross-examined by Ld. Defence counsel but nothing material came out therein.
PW7 was recalled after arrest of accused Aakash. He reiterated the facts as deposed by him earlier in his deposition dated 14-09-2017.
He was not cross-examined by ld. Defence counsel despite having given the opportunity.
PW8 Sh. Devi Sahay deposed that on 14.04.2016 he was informed by his brother in law namely Neeraj that his elder brother Puneet was admitted in Safdarjung Hospital. He reached FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 17 of 47 there. On next day, he received phone call of Neeraj that injured Puneet was declared dead by the doctor. He again reached there and identified dead body of Puneet before police. His statement was recorded by police officials regarding identification of dead body vide Ex. PW8/A. Neeraj was also present when dead body was also identified. His statement was also recorded regarding identification of dead body vide Ex. PW8/B. On the same day i.e 15.04.2016, their received the dead body after postmortem of examination against receipt and they were brought the dead body at home and cremation was conducted as per their customs.
In his cross-examination done by Mr. R. K. Kocher, Adv. for accused he stated that he alongwith Neeraj had visited the PS in connection with this case. He affirmed that Police had obtained their signature Ex. PW 8/A/& Ex. PW 8/B. He again said that the police had obtained their signature at Safdarjung Hospital at the time of identification of dead body. It is affirmed that police had not recorded his statement in this case. Police had obtained their signature in 2-3 papers but he did not know what was written on those papers.
PW8 was recalled after arrest of accused Aakash. He reiterated the facts as deposed by him earlier in his deposition dated 14-09-2017.
In his cross examination by Sh. A. K. Pandey, Ld. Counsel for both accused persons, he deposed that he alongwith Neeraj had visited the PS in connection with the case. It is affirmed that police did not record his statement in this case. Police had obtained their signature in 2-3 papers but he did not know what was written on those papers.
PW9 HC Sudhir Kumar deposed that on 07.04.2016, he FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 18 of 47 was posted at PS Gokalpuri. During his duty at about 9.15 p.m., copy of DD no.78B was assigned to ASI Murari Lal. He alongwith ASI Murari Lal reached at the place inside the Northern side of the park, near Gokalpuri Flyover, Gokalpuri, Delhi. Blood was lying on the spot. One eyewitness namely Ravi Kumar was present there. He told that injured had already been removed to hospital. ASI Murari Lal recorded statement of Ravi Kumar marked as PW4/1. Thereafter, he went to GTB hospital leaving him and Ravi Kumar at the spot as a guard. After about 1 hour, ASI Murari came at the spot. He prepared rukka Ex. PW5/A on the basis of statement of Ravi Kumar to get registered FIR of present case u/s 308/34 IPC. He took the same to PS from the spot at about 10.30 p.m. and presented the same before DO. FIR of the present case was registered. Same is already Ex. PW5/C. Investigation of the case was assigned to ASI Murari Lal. DO HC Inderpal had delivered rukka and copy of FIR to him. He reached again at the spot and handed over the rukka and copy of FIR to ASI Murari Lal for investigation as directed by DO.
Crime team officials were present there and they were busy in their work. IO ASI Murari Lal inspected the spot and prepared site plan at the instance of complainant. IO had lifted air, blood smeared clay and earth control for comparison besides one piece of a stone having blood stains which had been used a weapon. IO prepared 4 sealed parcels for the aforesaid articles which were sealed with the seal of ML and seized two seizure memos Ex. PW9/A and Ex. PW9/B respectively. Seal after use was handed over to him. On completion of spot proceedings, efforts were made to trace out the assailants namely Jagdish FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 19 of 47 Kumar @ J.K s/o Mohan Lal and Akash s/o Jagdish Kumar, but in vain. Thereafter, they returned to PS. He correctly identified one cemented piece of a stone of red colour from one side having dirty mark on 2-3 places besides cloth piece used for parcel having broken seal impression of IO and FSL slip having FSL number and date as same piece of stone which was seized in presence of the complainant and which had been identified by complainant as weapon of offence.
He was not cross-examined by Ld. defence counsel despite given opportunity.
PW9 was recalled after arrest of accused Aakash. He claimed that he would stand by his deposition dated 15-09-2017 which was not objected to by Ld. Defence counsel and therefore, he was not re-examined in chief.
In his cross examination by Sh. A. K. Pandey, advocate for accused Akash, PW-9 deposed that he had reached the spot on 07-04-2016 at around 8:45 pm. He remained at the spot for about 1½ hours. In his presence, IO recorded statement of only Ravi Kumar. He took the rukka to PS after about 1½ hour of his arrival at the spot. He could not tell the exact time when the rukka was recorded. No passersby was present at the spot in his presence. It is affirmed that there are residential houses in the vicinity of the spot. He denied the suggestion that he did not visit the spot or that many persons of the locality were present in the park or that IO did not record statement of complainant Ravi in his presence at the spot. IO had requested some public persons present outside the park but they refused to join in the investigation. He could not tell as to how many public persons were present outside the park. It is affirmed that many public FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 20 of 47 persons were present there. No notice was given to the public persons who refused to join the investigation. He did not remember if their names and addresses were recorded by the IO. He did not notice as to at exactly how many places blood was detected at the spot. He did not remember the time when came back at the spot after registration of FIR. He could not tell how much time was taken by him in going to PS with rukka and in coming back to the spot. When he came back at the spot, the then SHO. Crime Team, complainant Ravi, and IO were present. The then SHO was Inspector Dharam Dev. He did not remember as to whether the public persons were present at the spot when he came back there after registration of FIR as he was busy in his work such as collecting the samples handed over to him by the IO etc. He had not seen the recovered stone piece as he was handed over the same in pulanda. He denied the suggestion that nothing was recovered in his presence from the spot or that all proceedings were conducted while sitting at PS or that due to this reason, no witness was joined from the colony. His statement was recorded by the IO at the spot, however, he did not remember the time. He could not identify the case property as he had received the same in a pulanda. He denied the suggestion that he deposed falsely at the instance of IO.
The witness was re-examined by Ld. Addl. PP for State on limited aspect of seeing the case property at the spot.
During re-examination Ld. Addl. PP for State, he was questioned as under:-
Q: On 15-09-2017, you claimed that Crime Team had lifted inter- alia one piece of a stone having blood stains which was used as a weapon and you can identify the case property i.e. piece of a FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 21 of 47 stone used to prepare the footpath, weighing about 3 kg but today you are claiming that you had received the same in a pulanda and as such, you cannot identify the same. Which of the statement of yours is correct?
Ans: When he initially reached the spot with the IO, he had seen one piece of a stone having blood stains lying at the spot, however, later when the Crime Team was making pulandas, he had not seen the said proceedings of sealing the same.
In his cross examination by Sh. A. K. Pandey, advocate for accused Akash, PW-9 deposed that there were several stones lying at the spot however, only one stone was having blood stains on it. He did not remember whether the Crime Team had seized one stone or multiple stones. He denied the suggestion that the seized articles i.e. blood-stained stone was not the one which he had seen at the spot. He could not tell to what extent blood was smeared on the stone. He volunteered that it was lot. He denied the suggestion that he had not seen any blood-stained stone at the spot or that he deposed falsely only being after suggested by Ld. Addl. PP for State.
PW10 Ct. Mukesh deposed that on receiving information from control room, he alongwith SI Mukesh Chauhan and ASI Surender Prasad reached at the spot i.e inside the park of D- block, Gokalpuri in North Direction from Gokalpuri Flyover, Delhi at about 11.15 p.m on 07.04.2016 where ASI Murari Lal alongwith other police officials met them. They noticed blood on the ground besides cemented bricks having blood stains and some hair near the drain (nali) of aforesaid park which was at some distance from D-Block gate of the park. He had taken 20 photographs from different angles on the directions of ASI FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 22 of 47 Murari Lal. Their Incharge also inspected the spot. They left the spot at about 11.45 p.m. on 07.04.2016.
Twenty photographs Ex. PW10/A-1 to Ex. PW10/A-20 available on file were shown to the witness and he submitted that those were depicting the scene of crime. He had brought certificate u/s 65(B) of Indian Evidence Act regarding proper maintenance of camera as well as memory card and same is Ex. PW10/B and tendered on file.
He was not cross-examined by Ld. Defence counsel despite having given the opportunity.
PW10 was recalled after arrest of accused Aakash. He reiterated the facts as deposed by him earlier in his deposition dated 05-02-2018.
In his cross examination by Sh. A.K. Pandey, Ld. Counsel for accused Akash, he deposed that he received call from control room at about 11:00 pm to reach at spot. He alongwith SI Mukesh Chauhan, ASI Surender Prasad (finger print proficient) and driver Const. Mohit reached at the spot by govt. vehicle i.e. TATA 407. He did not remember its registration number. The aforesaid TATA 407 were used by them for more than four months. When he reached at the spot, they found ASI Murari Lal present there. He did not know size of the park, however, it was small park. The spot was at a distance of 5-10 steps from the main gate of park. They had not visited entire park. They had reached at spot and remained in the nearby area of the spot. He had performed his duty as Constable in North-East District, Delhi. They took 20 minutes to reach at the spot by vehicle. He had no idea about the distance between park and their office in kilometer. He did not remember whether he had visited aforesaid FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 23 of 47 park before and after the day of inspection. Park was facing to main road. If any person if present on main road park is visible to him. He denied that he had not visited the park at any point of time that is why he was unable to tell the exact area of park. No public person was present inside the park. Only police officials were present at spot near the gate of park. When they reached at park, they had noticed that ASI Murari was present at the gate of park and he took them to spot of this case. The spot was visible to them from the gate of park. Hair were also lying at a some distance inside the park from the gate. One bunch of hair and some loose hair were lying near the pedi of nali inside the park.
He was not aware whether visitor of the park used to throw hair and garbage on the pedi of nala or not. One complete cemented brick having blood stains was lying at the spot. They had stayed there for about half an hour. He had no knowledge if IO asked any person to join investigation. No writing work was done by the IO at the spot. Their statement were recorded in their office. He denied that he had not visited the spot.
PW11 ASI Surender Singh deposed that on 07.04.2016, he was posted at PCR, NE Zone. On that day, he along with two constables was on duty at their base near BSES office, Gokalpuri, Delhi and their duty time was 8 pm to 8 am During his duty at about 9.20 p.m. on 07.04.2016, he received information from control room that quarrel had taken place inside the park in the northern side from Gokalpuri Flyover. He reached inside the aforesaid park by government gypsy. They found one injured lying in the park. He took him to GTB and got him admitted for medical examination. He passed on information to control room about admission of unknown injured in GTB FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 24 of 47 hospital. Local police reached at the hospital and they left the hospital and started their duty. His statement was recorded by the police.
He was not cross-examined by Ld. defence counsel despite having given the opportunity.
PW12 Neeraj deposed that in the year 2016, he alongwith his family was residing at H. No. E-86, Bhagirathi Vihar, Delhi-
94. He has two brothers and one sister. His brother Puneet (deceased) used to play DJ in the marriage function.
On 07.04.2016 at about 9.00 p.m., his friend Ravi came to him and informed that a quarrel was taking place with his brother Puneet inside the park near Gokalpuri Flyover. He reached inside the park and saw that accused Akash and his father namely Jagdish @ J.K.@ Jagga were beating his brother Puneet. Both the accused were holding bricks in their hands and they were causing injuries on the head of Puneet. Four other unknown persons were also present there and they were also giving beatings to his brother Puneet alongwith the aforesaid two accused persons present in court (correctly identified). Both the accused were known to him since his childhood. He was frightened and ran away from the spot. Somebody made a call at 100 number about the incident to the police. It came into his notice that his injured brother Puneet was taken to GTB hospital.
He reached at GTB hospital at about 10/10.30 p.m where doctor refused to get him admitted there for his medical examination as X-ray machine for examination of head was not in order. Thereafter, doctor referred his injured brother to Safdarjung hospital on the same day night. He also accompanied his brother to Safdarjung Hospital on the same night. His brother FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 25 of 47 remained under treatment for about 6 days. He had stayed there. On 14.04.2016, doctor declared his brother Puneet 'Dead' as he was in Coma due to head injuries.
Police reached at the mortuary of Safdarjung hospital on 15.04.2016 where he had identified dead body of his brother Puneet in presence of his jija Devi Sahai. SI Murari had recorded his statement regarding identification of dead body vide Ex.PW8/B. On the same day, postmortem of dead body was conducted and they had received the dead body for cremation.
On 19.04.2016 at about 10 a.m., accused Jagdish was arrested by SI Murari from place near BSES office, Gokalpuri, Delhi. Nothing was told about the incident by the accused in his presence. His brother was beaten by both the accused and his associates due to previous enmity. Ravi has not joined investigation when arrest proceeding of accused Jagdish was completed. He did not know other facts of the case.
He was cross-examined by Ld. Addl. PP for State as he was resiling from his statement given to the police and suppressing the truth.
During his cross examination by Ld. APP for the State, he affirmed that police has recorded his statement on 19.04.2016. It is affirmed that injuries were caused on the head and face of his brother Puneet with an intention to kill him. He denied the suggestion that his brother Puneet was given beatings by three assailants. It is affirmed that his brother was caused injuries with fists, kick blows and stones by three assailants. It is affirmed that accused Jagdish was having stone in his hands and he had caused injuries to his brother with stone. It is affirmed that accused Akash was holding glass bottle in his hands and he had caused FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 26 of 47 injuries to his brother with the said glass bottle. It is affirmed that accused Jagdish @ J.K was arrested by the IO in the presence of complainant Ravi Kumar. It is affirmed that accused Jagdish was interrogated by the IO after arrest on 19.04.2016 and that he had told to police that he alongwith his son Akash and his associate had caused injuries to Puneet with an intention to kill.
In his cross-examination by Sh. A. K Pandey, Ld Counsel for both the accused persons PW12 stated that on the last date of hearing of present case i.e. 13.12.2018, he has been extended threats to kill by 6-7 unknown associates of accused Jagga near staircase adjacent to court room no. 72. It was about 11 am /12 noon. One out of aforesaid 6-7 unknown persons had extended threats to him and they extended threats that if he deposed against accused persons, he would also be killed like his brother. He was wearing jersy and pant but he did not remember its colour. He had not passed on information regarding threat neither to his private counsel nor to police despite having mobile phone number of his private counsel. He denied that he was not threatened by anyone on last day of hearing that is why he did not make any complaint or informed to his counsel. On last date, he along with his brother were presented outside of the court room. He had not told to his brother Gagan about the aforesaid threat. He affirmed that he had been bound down to appear before the court on 15-10-2018 and he had not appeared on that day and bailable warrants and NBWs were issued against him for not appearing in the court. He volunteered that on the day of incident, he had gone to meet his father at Gokalpuri and he was present at spot at the time of incident. He denied that on the day of incident he was not in the area of Gokalpuri or that he was not FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 27 of 47 present at the spot at the time of incident of that he was not an eyewitness of this case. His deceased brother Puneet was present inside the park at the time of incident. He was not aware what he was doing there. Approximately 50 visitors were inside the park at the time of incident. He had not seen accused J.K and Akash going inside the park together on that day. On that day, he had noticed aforesaid accused persons inside the park and they were present on different places inside the park. He did not remember whether his statement was recorded by the IO in this case or not. He was not interrogated by the IO pertaining to incident of present case at any point of time. He volunteered that at initial stage of investigation, he was interrogated by the IO, thereafter, he was not interrogated and examined as witness by the IO.
PW13 HC Deepak deposed that on 08-02-2017, he was posted at PS Gokalpuri and process U/s. 82 Cr.P.C. issued against the accused namely Akash s/o Jagdish @ J.K. Jaggu r/o H.No. A-188, Gokalpuri, Delhi was received by him for execution. On the same day, he and ASI Azad Singh reached at the given address and accused was not found available there, but his grandmother met them there. He made efforts to procure presence of accused there, but he was not present at his house. His grandmother did not disclose present whereabouts of accused Akash. He pasted copy of the same at the main gate of the house of accused which could be seen by every person. He got the munadi done in the area. And also pasted one copy of the same process outside the concerned court. His detailed report in this regard dated 08.02.2017 is Ex. PW13/A. His statement was recorded in this case on 10.03.2017.
Two photographs of process which was pasted on the wall FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 28 of 47 of the house of the accused were taken which are Ex. PW13/B-1 and Ex. PW13/B-2. He had recorded his departure and arrival entry vide DD no. 84 B and 112 B Ex. PW13/C-1 and Ex. PW13/C-2. On the same day, accused Akash was declared PO by Ms. Preeti Agarwala, Ld.MM.
In his cross-examination by Sh. A.K.Pandey, Ld.Counsel, PW-13 deposed that they reached at the house of accused at about 6.15 p.m and remained there till 7.30 p.m. During this period, he had asked some public persons to join the investigation, but they refused to join the investigation. The said public persons were his neighbourers, but he could not tell the address of the said neighbourers. No legal action was taken against the said public persons so refusing. At that time, Inspector Sanjay Kumar Singh and ASI Puran were posted at PS Gokalpuri. He had no knowledge whether PO proceedings were quashed by the Hon'ble High Court of Delhi vide order dt. 26.09.2017. He denied the suggestion that he did not visit the house of the accused nor he had conducted any proceedings at the house of accused. He denied the suggestion that photographs of the process were taken by affixing on the wall of some other house. He did not have any knowledge if the accused was declared PO after 26.09.2017. He denied the suggestion that all the writing work was done while sitting at the PS or that he deposed falsely.
PW14 Ct. Shailender deposed that accused Aakash has been declared PO by the court of Ms. Preeti Agarwala, Ld. MM vide an order dt. 10.03.2017. Their team comprising of ASI Vijender, HC Anil, Ct. Pradeep and himself apprehended PO/accused Aakash at about 9.30 p.m. on 05.03.2018 and ASI FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 29 of 47 Vijender prepared his arrest papers vide Ex. PW14/A and Ex.PW14/B. Proclaimed offender was arrested in this case and produced before Ld. MM. On the same day, information was passed on to PS Gokalpuri about arrest of PO Aakash. He correctly identified accused Aakash present in court. The copy of order passed by Ld. MM dated 10.03.2017 was shown to the witness as Ex. PW14/C. In his cross-examination by Sh. S.K. Singh, Ld. Counsel for both the accused namely, PW-14 stated that accused was arrested from A-Block, MCD Park, Gokalpuri, Delhi. At that time, 2-3 public persons were present in the said park. ASI Vijender had asked the public persons to join the investigation, but none agreed and left the spot without disclosing their names and addresses. No notice was got served upon so refusing persons. He denied the suggestion that accused Aakash was lifted from his house or that he was brought at PS or that arrest papers were prepared at PS or that he had put his signatures on the documents as per choice of ASI Vijender. He denied the suggestion that he deposed falsely.
PW15 ASI Vijender deposed that on 05.03.2018, he along with his team comprising of HC Anil, Ct. Pradeep and Ct. Shailender had apprehended Proclaimed Offender Akash as he had been declared PO by the court of Ms. Preeti Agarwala on 10.03.2017. He had produced aforesaid PO before concerned court with kalandra proceedings Ex PW14/A and Ex. PW14/B and from there, he was sent to J/C. He had passed on information to PS Gokalpuri about arrest of PO Akash. He correctly identified accused Akash present in court.
In his cross examination by Sh. A.K.Pandey, Ld Counsel FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 30 of 47 for both the accused, he deposed that he has no knowledge whether aforesaid order passed by Ld. MM Ms.Preeti Agarwala dt. 10.03.2017 was quashed by the Hon'ble High Court of Delhi. He was not aware whether in the month of September 2017, Inspector Sanjay Kumar and ASI Puran Singh were on duty at PS Gokalpuri. He denied the suggestion that he wrongly arrested accused Akash as PO despite having knowledge that order dt. 10.03.2017 has already been quashed by the Hon'ble High Court of Delhi. He denied the suggestion that he deposed falsely at the instance of SHO and IO.
PW16 Inspector Ashok Kumar deposed that on 14.11.2016 he was posted at PS Gokalpuri. On that day, further investigation of this case was assigned to him. He collected case file from MHCR. At that time, search of co-accused Akash was in progress and main charge-sheet had already been filed against accused Jagdish @ Jagga by previous IO. He made search to procure presence of aforesaid accused Akash here and there but no clue come forward. He got issued process u/s 82 Cr.P.C against accused Akash. He had executed aforesaid process at the residence of accused Akash, he was absconding from his house and no clue come forward to procure presence of accused Akash. He got declared the accused Akash from the concerned court on 17.03.2017. Thereafter, he was transferred form PS Gokalpuri and he handed over the file to MHCR. Some other police official would have completed investigation against Akash as and when he was arrested.
In his cross examination by Sh. A.K. Pandey, Ld. Counsel for both accused persons, PW-16 deposed that he had no concerned with the investigation qua accused Jagdish @ Jagga.
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 31 of 47He was not aware whether Hon'ble High Court had quashed the order dated 17.03.2017 or not.
He affirmed that Insp. Sanjay Singh was posted at PS Gokalpuri in those days when he performed his duty there. He affirmed that ASI Puran Singh was posted at PS Gokalpuri in those days and he used to go to Hon'ble High Court to attend the matter on the directions of SHO. He was not aware whether on 26.09.2017 he had visited Hon'ble High Court in this case or not. He denied the suggestion that he had not completed process u/s 82 Cr.P.C. as per law and procedure.
PW17 ASI Vijender Malik, deposed that on 05.03.2018, he was posted as ASI at PS Gokul Puri. On that day, he alongwith HC Anil, Ct. Pradeep, Ct. Shilander were present at about 8 pm at A Gokul puri for patrolling duty. One secret informer came and told him that one person by the name of Akash who is an absconder and present at MCD parking of A block Gokul puri. He prepared a raiding team of the aforesaid police officials and went to the said MCD party with secret informer. On reaching there, secret informer pointed out at a person present in MCD parking and he went away. Thereafter, he with the help of his team apprehended the said person who on interrogation told his name as Akash s/o. Jagdish. They brought Akash to PS and checked the records and came to know that Akash was PO since 10.03.2017 by the Ms. Preeti Agarwal, Ld. MM court. He arrested accused Akash vide arrest memo Ex. PW14/A. He personally searched the accused vide memo Ex. PW14/B. Thereafter, he was put behind the bars after his medical examination. On next day, at about 7 am, Inspector Gian Chand came to PS and he handed over the aforesaid documents FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 32 of 47 regarding the arrest of accused Akash to him. They took out accused from the lockup and thereafter accused took them i.e. himself, Ct. Shailender and Inspector Gian Chand to place of incident. The accused pointed out towards the place of occurrence and IO prepared the site plan vide Ex. PW17/A. Thereafter, IO Inspector Gian Chand interrogated the accused and recorded his disclosure statement vide Ex. PW17/B. Thereafter, the accused produced before the court from where he was sent to JC. The witness correctly identified the accused Akash present in court .
The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
PW18 Inspector Sanjay Kumar Singh was the investigating police official, who had collected the FSL result on 15-09-2017 and deposited the same in the court vide his application Ex. PW18/A. The witness was not cross-examined by Ld. Defence counsel despite having given the opportunity.
PW19 Inspector Gian Chand deposed that on 06-03-2018, he was temporarily posted as Inspector at PS Gokalpuri. On that day at around 4 am, he received information from ASI Bijender vide kalandra DD no. 21/А Ex. PW19/A (colly) that he had arrested PO Aakash and the further investigation was to be conducted by him as per the order of SHO Gokalpuri. On same day at about at 7 am, he took out accused PO Aakash from the lock-up in the custody of ASI Bijender and Ct. Shailender. After that, he interrogated accused Aakash and recorded his disclosure statement Ex. PW17/B. Thereafter, accused took them to the place of incident i.e. Park D Block, Gokalpuri. The site plan was FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 33 of 47 prepared at the instance of the accused Aakash Ex. PW17/A. Thereafter, the accused was produced before the court and he was sent to JC. Thereafter, he prepared the supplementary charge-sheet related to PO accused and filed it before the Hon'ble court. He identified Aakash in the court identified.
In his cross examination by Sh. S.K. Singh, Ld. Counsel for both the accused persons he stated that he recorded the disclosure of accused Aakash in the PS itself. He denied the suggestion that Aakash has not made any disclosure statement. Public persons were present in the park however they all went away after seeing them in uniform. He tried to stop them in order to ask them to join the investigation however none stopped. He denied the suggestion that accused never took them to the park nor he identified any place of incident and therefore public was made witness to the site plan.
PW20 Retd. ASI Murari Lal deposed that on 07-04-2016, he was posted at PS Gokulpuri as ASI. On that day, he received DD no. 78B regarding fight. He along with Ct. Sudhir went to the spot ie. park, beneath Gokulpuri flyover, north side where they came to know that injured had been taken to GTB hospital by PCR van. He left Ct. Sudhir at the spot for guarding the spot and he went to GTB hospital. He collected the MLC of injured namely Ravi, again said Puneet s/o Raghuraj. Thereafter, he returned to the spot where he found present the complainant Ravi. He recorded his statement Ex. PW4/A. Thereafter, he prepared a tehrir Ex. PW5/A upon the statement of complainant and gave it to Ct. Sudhir, who went to PS Gokulpuri for registration of FIR. After registration of FIR, Ct. Sudhir returned to the spot and handed over the copy of FIR and original tehrir to FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 34 of 47 him. Thereafter, he called Mobile Crime Team at the spot who did the inspection of scene of crime and took photographs. During inspection, he also noticed one brick, some hairs at the spot. He seized the brick vide seizure memo Ex. PW4/2 and PW9/B. He also seized the said hairs along with earth control from the spot vide seizure memo Ex. PW4/2 and Ex. PW9/A. On 08-04-2016, he received information from GTB hospital that the injured had been referred to Safdarjung Hospital for surgery. On 14-04-2016, the injured died during his treatment which they came to know vide DD no. 23A. He along with Ct. Ajay went to Safdarjung Hospital where they met with the relatives of the deceased i.e. brother and jija (brother-in-law). Thereafter, he recorded body identification memos Ex. PW8/A and Ex. PW8/B. Thereafter, he filled form for requesting postmortem of the deceased vide Ex. PW20/A (colly). After postmortem, the dead body was handed over to the relatives. Thereafter, he collected the exhibits i.e. blood on gauge from the doctor of Safdurjang hospital and seized the same vide seizure memo Ex. PW6/A. On 19-04-2016, he prepared a raiding team as he received a secret information that the accused was standing in front of BSES office near PS Gokulpuri. Thereafter, he called the complainant at the PS and he along with his raiding team, complainant and the secret informer went to the spot where the secret informer pointed out towards accused and stated that he was the accused in the present case. Thereafter, they apprehended the accused and they brought him to PS where after interrogation, his disclosure was recorded vide Ex. PW7/C. Thereafter, the accused was arrested vide memo Ex. PW7/A. Accused was FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 35 of 47 personally searched vide memo Ex. PW7/B. Thereafter, the accused was sent to JC.
Thereafter, he made search for other accused Akash, however, he was not found and he got issued NBWs against him. During investigation, he had sent exhibits to FSL. He also collected PM report and PCR form. He had also prepared a site plan at the instance of complainant vide Ex. PW20/B. He also got prepared a scaled site plan through Inspector Mahesh Kumar. He also collected report of crime team. During investigation, he recorded statement of witnesses. Thereafter, he prepared the chargesheet and filed it before the court. He identified accused Jagdish in the court correctly.
He identified the case property i.e. one brick/ tile of red colour as Ex. PW20/Article-1; hair strands as Ex. PW20/Article-
2. During his cross-examination by Ld. Defence counsel, he affirmed that people were passing through the spot and about 5- 10 people were also present in the park. At that time, he did not record name and address of the said person who told him that injured had been taken to GTB hospital. The park was huge. He affirmed that place of incident is surrounded by residential houses. He requested residents to join the investigation but they refused. He did not note their house numbers of names. He affirmed that no notice in writing was served upon them on their refusal to join the investigation.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statements of accused persons were recorded under Section 313 Cr.P.C.
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 36 of 47wherein incriminating facts were put to the accused persons, which were denied by them. They stated that they are innocent and falsely implicated in this case. The accused persons did not opt to lead defence evidence.
FINAL ARGUMENTS
6. This court has heard the arguments and perused the record.
It is submitted by Ld. Addl. PP for the State that prosecution has got examined PW-12 Neeraj, brother of deceased, as the eyewitness. He has categorically deposed that on 07.04.2016 at about 09:00 PM, both accused Akash and Jagdish @ JK were holding brick in their hands and were causing injuries on the head of his brother Puneet. There is evidence to indicate that both accused had tried to abscond after committing the alleged offence. Accused Jagdish @ JK was arrested on the basis of secret information on 19.04.2016 from a place near BSES office near PS Gokalpuri. IO got issued NBW against the co- accused Akash and proceedings U/s 82 Cr.P.C were also got initiated against him which culminated in declaration of accused Akash as Proclaimed Offender vide order dt. 10.03.2017. All these facts shows the subsequent conduct of accused persons after committing the alleged offence.
On the other hand Sh. A.K Pandey, Ld. Counsel for the accused persons submitted that prosecution case is full of discrepancies and contradictions. Independent eyewitness, cited in the chargesheet namely Ravi Kumar has not supported the case of the prosecution and turned hostile on 22.03.2017 as well as on 10.10.2019 when he was recalled after the arrest of accused Akash. Another eyewitness got examined by the prosecution FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 37 of 47 PW-12 Neeraj is an interested witness being the brother of deceased. He did not account for his presence on the spot at the time of incident. His statement U/s 161 Cr.P.C was recorded on 19.04.2016 i.e. after about 12 days from the date of incident. Thus, presence of PW12 at the spot is doubtful. No independent public person was joined in the investigation. No circumstantial evidence led by the prosecution to connect the accused persons with the commission of alleged offence. It is therefore, prayed that benefit of doubt be conferred upon the accused persons. FINDINGS OF THE COURT
7. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are found to be applicable to the facts of the present case.
Sections 302 and 174A of IPC read as under:-
300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly--If the person committing the act knows that it is so imminently dangerous that is 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.
302. Punishment for murder-Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
174A.Non-appearance in response to a proclamation under section 82 of Act 2 of 1974.--Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 38 of 47 declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
8. It is pertinent to mention here that it has been held in case of Sadhu Singh V/s State of Punjab 1997(3) Crime 55 by the Hon'ble Punjab & Haryana High Court that:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
9. In Harendera Narain Singh vs. State of Bihar, AIR 1991 S.C. 1842, their Lordships of the Hon'ble Supreme Court had reiterated the well-known principle of the criminal jurisprudence as:
"....... The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
10. In Data Xiva Naique Desai and Another vs. The State, AIR 1967 Goa, Daman and Diu 4, the Hon'ble Supreme Court reiterated the well-known principles of the criminal jurisprudence which are reproduced as under:
"The learned Judge would be advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (i) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between several guilty persons should escape than that one innocent person suffer; and (iv) the hypothesis of delinquency should be consistent with all the facts proved."FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 39 of 47
11. In Swarn Singh Ratan Singh vs. State of Punjab, AIR 1957 SC 637, it was held by the Hon'ble Apex Court that, "in criminal cases mere suspicion, however, strong, cannot take the place of proof. The Court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. Mere suspicion, however, strong it may be, cannot take the place of legal proof."
12. Moreover, in Kali Ram vs. State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had observed as follows:-
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable: it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused. Reference is sometimes made to the clash of public interest and that of the individual accused. The conflict in this respect, in our opinion, is more apparent than real. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 40 of 47 conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out altogether."
13. It is noted that present case is primarily based on the testimony of eyewitness namely PW4 Ravi Kumar and PW12 Neeraj. As per the prosecution case, no eyewitness met at the spot when IO ASI Murari Lal reached at the spot upon receiving DD no. 78B. It is only after returning from the hospital, complainant Ravi Kumar met at the spot. In his statement Ex. PW4/1, he claimed that on 07-04-2016, he went to Gokalpuri market for purchasing some articles in connection with Nav Durga Puja. At about 9 pm, when he was passing on a road adjoining park on the northern direction of Gokalpuri flyover, he saw that some people were beating one boy inside the park. When he entered inside the park, he found that his friend Neeraj's brother namely Puneet was being beaten by one Jagdish Kumar @ JK and his son Aakash along with one more person with leg and fist blows, bottle and stone piece. Accused Aakash was holding a glass bottle and accused Jagdish Kumar was holding stone piece. After beating Puneet, they threw him in the drain. The present FIR was registered on the basis of his above- stated statement. However, in his depositions dated 22-03-2017 and 10-10-2019, he took a completely contrary stand. He claimed that on 07-04-2016, three police officials of PS Gokalpuri came at his home, took him to PS and obtained his signatures on some blank papers. He denied all the suggestions put by Ld. Addl. PP for State on the basis of incriminating facts FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 41 of 47 emerging from his statement Ex. PW4/1. He even failed to identify the accused persons despite having been pointed out by ld. Addl. PP for State as the assailants in the commission of alleged murder.
14. Another eyewitness got examined by the prosecution is PW12 Neeraj, who also happens to be the brother of deceased, therefore, an interested witness. In his examination in chief dated 15-05-2018, he has narrated in detail about the role of both accused Akash and Jagdish in inflicting injuries on the head of his brother Puneet with bricks. However, his presence at the spot is doubtful due to following reasons:-
1. He did not report the incident to the police by calling 100 number or otherwise.
2. He did not try to intervene between the fight of accused persons and his brother.
3. In his cross-examination by Ld. Addl. PP for State, he admitted the fact that police has recorded his statement on 19-
04-2016 i.e. after 12 days from the date of incident. There is no explanation from his side regarding the delay in recording of his statement. It is pertinent to note that prior to 19-04-2016, his statement was already recorded by same IO on 15-04-2016 i.e. at the time of identification of dead body of his brother.
4. He was hesitant in deposing before the court. After the conclusion of his examination in chief on 15-05-2018, he defaulted in appearing before the court despite the fact that he was bound down on 24-08-2018. On 13-12-2018, he came in the court in the morning and left the court without intimation. The demeanor of PW12 has already been recorded in ordersheet dated 13-12-2028. He finally appeared in the court on 27-02- FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 42 of 47 2019, on execution of non-bailable warrants against him. Though he claimed that he was being threatened by 6-7 unknown associates of accused in the court premises, yet he could not give any explanation as to why he had not reported about the threat either to police or to his private counsel in his cross-examination dated 27-02-2019.
5. There is nothing in the testimony of IO/ PW20 ASI Murari Lal as to when PW12 Neeraj approached them during the investigation of the present case.
6. The position of PW12 Neeraj is also not specified in the site plan Ex. PW20/B.
7. PW12 Neeraj was also not present at the time of recovery of incriminating articles i.e. stone piece, blood stained sand, earth control etc. vide seizure memo Ex. PW9/A and PW9/B respectively as his signatures are not found mentioned therein.
8. Call detail record indicating the location of his mobile phone have also not been collected by the IO.
15. It is further observed that necessary DD entries with regard to the movement of police officials and proceedings dated 19-04- 2016 with regard to arrest of accused Jagdish, proceedings dated 05-03-2018 at the time of arrest of accused Akash and other places visited by the investigating team during investigation of the present case have not been placed on record. Neither IO PW20/ ASI Murari Lal nor PW9 HC Sudhir had deposed anything regarding recording of DD entry with regard to their, departure from and arrival at, PS with regard to the proceedings conducted in connection with the present case.
16. As per Chapter 22 Rule 49 of the Punjab Police Rules, it is FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 43 of 47 necessary to record DD Entry of arrival and departure of the police official. Chapter 22 Rule 49 of Punjab Police Rules, 1934, is reproduced as under:-
''22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered :-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note :- The term Police Station will include all places such as Police Lines and Police Posts where Register No. II is maintained.
17. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court "wherein it has been observed that if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution."
In the present case, the above said provision appears to have not been complied with by prosecution.
18. From the testimony of prosecution witnesses, particularly the investigating police officials, it is apparent that they have not made sincere efforts to join the independent public witnesses at the time of arrest of accused persons and during their PC remand. PW9 HC Sudhir has admitted in his cross-examination dated 24- FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 44 of 47 10-2024 that many public persons were present outside the park where the incident took place. PW20 Retd. ASI Murari Lal has also admitted in his cross-examination dated 09-07-2024 that people were passing through the spot and about 5-10 people were also present in the park where the incident took place. No cogent explanation is furnished as to why no efforts have been made to join the available public persons in the investigation of the present case.
19. In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''18. It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
20. In Roop Chand V/s The State of Haryana,1999 (1) C.L.R 69, the Hon'ble Punjab & Haryana High Court held as under:-
"It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 45 of 47 contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful''.
The remaining witnesses got examined by the prosecution in relation to offence punishable u/s 302/34 of IPC are only corroborative in nature.
21. It is observed that during investigation of the present case, accused Akash has been evading from his arrest. IO obtained NBWs against him and thereafter, proceedings u/s 82 Cr.P.C. got initiated against him. Finally, vide order dated 10- 03-2017, he was declared proclaimed offender. PW13 HC Deepak and PW16 Inspector Ashok Kumar have proved the proceedings u/s 82 Cr.P.C. against accused Akash. It is proved that vide order dated 10-03-2017 passed by Ms. Preeti Aggarwala, Ld. MM, accused Akash has been declared proclaimed offender. As per section 82 (3) of Cr.P.C., a statement in writing by the court issuing the proclamation u/s 82 Cr.P.C. to the effect that the said proclamation was duly published on a specified date, shall be conclusive evidence that the requirements of Section 82 Cr.P.C. have been duly complied with. The order dated 10-03-2017 Ex. PW14/C was never challenged by accused Akash before any appellate or revisionist FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 46 of 47 court. Thus, the prosecution has established the fact that accused Akash has been declared proclaimed offender vide order dated 10-03-2017 by Ms. Preeti Aggarwala, Ld. MM (Mahila Court), North-East, KKD.
DECISION OF THE COURT
22. It is well settled that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, on the basis of the material available on the record, the case of the prosecution becomes doubtful for the offence punishable u/s 302/34 of IPC and the benefit of doubt certainly goes in favor of the accused persons. Accordingly, taking into consideration the facts and circumstances of the case, accused persons namely Jagdish @ J.K. @ Jagga and Akash are hereby acquitted of the charges punishable u/s 302/34 of IPC. However, accused Akash is hereby convicted for the offence punishable u/s 174A of IPC. The accused persons are directed to furnish bail bonds u/s 481 of BNSS/ 437A of Cr.P.C. Let the convict Akash be heard on the quantum of sentence on the next date of hearing.
ANNOUNCED IN THE OPEN COURT
ON 06-03-2025 PANKAJ Digitally signed by PANKAJ
ARORA
ARORA Date: 2025.03.06 17:07:03
+0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/06-03-2025
FIR No. 257/16 State Vs. Jagdish @J.K.@ Jagga & Anr. Page 47 of 47