Delhi District Court
State vs . (1) Harvinder Singh on 4 July, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST: ROHINI COURTS: DELHI
Session Case No. 144/2013
Unique Case ID No.: 02404R0166902013
State Vs. (1) Harvinder Singh
S/o Sh. Kashmir Singh
R/o House No. K1/B,
Budh Vihar, Phase1,
Delhi
(Acquitted)
(2) Sunil Kumar @ Sethi
S/o Suresh Pal Singh
R/o House No. D1/8,
Budh Vihar, Phase1,
Delhi
(Acquitted)
(3) Rakesh @ Andy
S/o Mehar Singh
R/o House No. U2/5A,
Budh Vihar, Phase1,
Delhi
(Proclaimed Offender)
FIR No.: 144/2013
Police Station: Vijay Vihar
Under Section: 302/34 Indian Penal Code
Date of committal to sessions court: 15.7.2013
Date on which orders were reserved: 4.7.2014
Date on which judgment pronounced:4.7.2014
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 1 of 103
JUDGMENT:
(1) As per the allegations, on 17.3.2013 at about 11:45 PM at Gali near House No. K1/8, Budh Vihar, PhaseI, near electricity police no. 5197/20 the accused Harvinder Singh and Sunil Kumar @ Sethi along with their coaccused Rakesh @ Andy (Proclaimed Offender) in furtherance of their common intention committed murder of Shiv Kumar by giving baseball bat blows upon his head intentionally to cause his death.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on the intervening night of 17/18.03.2013 at about 12.40 AM an information was received at Police Station Vijay Vihar regarding a quarrel pursuant to which DD No.5A was recorded and SI Sanjeev alongwith Ct. Jai Singh reached the spot i.e. gali near H. No. K1/8, Budh Vihar, PhaseI where they found PCR Officials namely HC Jitender alongwith staff. Some public persons were also present there and one person was lying dead near the pole in the pool of blood whose name was later on came to be known as Shiv Kumar. SI Sanjeev then gave information to the senior officers after which Crime Team and senior officers came at the spot and in the meantime Ajay Giri the brother of the deceased reached the spot. SI Sanjeev made inquiries from Ajay Giri who made his statement wherein he had named Havinder Singh, Sunil Kumar @ Sethi and St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 2 of 103 Rakesh @ Andy as the assailants. On the basis of the statements of Ajay Giri the rukka was prepared and the present FIR was registered.
Inspector Ajay then sent the body of Shiv Kumar in the mortuary of BSA Hospital. Thereafter the various exhibits were lifted from the spot and taken into possession. In the meantime a secret informer came at the spot and informed Inspector Ajay that the assailants wanted in this case might be available near Milan Vatika, Budh Vihar PhaseI, Delhi on which the Investigating Officer Inspector Ajay and other police staff reached near Milan Vatika where the secret informer pointed out towards the accused Sunil Kumar and Harvinder Singh who were then arrested and they were also identified by Ajay Giri as the assailants. Thereafter pursuant to their disclosure statements both the accused persons lead the police party to Ganda Nala, Budh Vihar from where the accused Sunil got recovered a baseball bat. The said Baseball Bat was then taken into possession. On 22.04.2013 the postmortem examination on the dead body of the deceased. After completion of investigations the charge sheet was filed against the accused Harvinder Singh and Sunil Kumar @ Sethi whereas the accused Rakesh @ Andy is a proclaimed offender.
CHARGE:
(3) Charges under Section 302/34 Indian Penal Code were settled against the accused Harvinder Singh and Sunil Kumar @ Sethi St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 3 of 103 to which they pleaded not guilty and claimed trial. (4) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. PW No. Name of the Details of the witness
No. witness
1. PW1 Insp. Manohar Lal Police Witness - Draftsman
2. PW2 ASI Ajeet Singh Police Witness - Crime Team Incharge
3. PW3 Ct. Kamal Police Witness - Crime Team Photographer
4. PW4 HC Balak Ram Police Witness - Duty Officer
5. PW5 HC Rakesh Police Witness - MHCM
6. PW6 W/Ct. Anju Police Witness - PCR Official
7. PW7 Ct. Naresh Police Witness - Special Messenger
8. PW8 HC Jitender Police Witness - PCR Van Incharge
9. PW9 Ct. Sherpal Police Witness who had taken the rukka to
Police Station
10. PW10 HC Sunil Dutt Police Witness who had joined the
investigations
11. PW11 Ajay Giri Public Witness - Brother of the deceased
12. PW12 Jai Bhagwan Public Witness who had made PCR call
13. PW13 HC Satish Kumar Police Witness who had brought the PCR
Form
14. PW14 HC N Sridhar Police Witness who has proved the FIR No.
349/11, PS Vijay Vihar, u/s. 325/323/341/34
IPC
15. PW15 Sumit Public Witness - Brother of the deceased
16. PW16 Raj Kumar Public/ Eye Witness
17. PW17 SI Sanjeev Kumar Initial Investigating Officer
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 4 of 103
Sr. PW No. Name of the Details of the witness
No. witness
18. PW18 Insp. Ajay Kumar Subsequent Investigating officer
19. PW19 Dr. Vijay Dhankar Autopsy Surgeon
List of documents exhibited:
Sr. Exhibit Details of documents Proved by
No. No.
1. PW1/1 Affidavit of witness Insp. Manohar Lal Insp. Manohar Lal
2. PW1/A Scaled Site plan
3. PW2/1 Affidavit of witness ASI Ajeet Singh ASI Ajeet Singh
4. PW2/A Crime Team Report
5. PW3/1 Affidavit of witness Ct. Kamal Ct. Kamal
6. PW3/A1to Photographs
PW3/A12
7. PW3/B Negatives
8. PW4/1 Affidavit of witness HC Balak Ram HC Balak Ram
9. PW4/A FIR
10. PW4/B Endorsement on rukka
11. PW5/1 Affidavit of witness HC Rakesh HC Rakesh
12. PW5/A Copy of Reg No. 19 Sr. No. 163/13
13. PW5/B Copy of Reg NO. 19 Sr. No. 243/13
14. PW5/C RC 149/21/13
15. PW5/D RC 150/21/13
16. PW6/1 Affidavit of witness W Ct. Anju W Ct. Anju
17. PW6/A PCR Form
18. PW7/1 Affidavit of witness Ct. Naresh Ct. Naresh
19. PW8/1 Affidavit of witness HC Jitneder HC Jitender
20. PW9/1 Affidavit of witness Ct. Sherpal Ct. Sherpal
21. PW10/A FSL receipt HC Sunil Dutt
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 5 of 103
Sr. Exhibit Details of documents Proved by
No. No.
22. PW10/B FSL Receipt
23. PW11/A Statement of Ajay Giri Ajay Giri
24. PW11/B Dead Body handed over memo
25. PW11/C Dead Body identification statement of
Ajay
26. PW11/C Dead Body identification statement of
Sumit
27. PW14/1 Affidavit of witness HC N Sridhar HC N Sridhar
28. PW14/A Copy of FIR NO. 349/11
29. PW16/PX1 Confronted statement of Raj Kumar Raj Kumar
30. PW17/A DD NO. 5A SI Sanjeev Kumar
31. PW17/B Endorsement on Statement of Ajay Giri
32. PW17/C Seizure memo of blood stained concrete
33. PW17/D Arrest Memo of accused Sunil
34. PW17/E Arrest Memo of accused Harvinder Singh
35. PW17/F Personal Search Memo of accused of
Sunil
36. PW17/G Persona Search Memo of accused
Harvinder Singh
37. PW17/H Disclosure Statement of accused Sunil
38. PW17/I Disclosure Statement of accused
Harvinder Singh
39. PW17/J Seizure Memo of Baseball bat
40. PW17/K Pointing Out memo of accused Sunil
41. PW17/L Pointing out memo of accused Harvinder
Singh
42. PW17/M Seizure Memo of Viscera Box and
sample seal
43. PW17/N Seizure Memo of Clothes, Gatta Peti and
sample seal
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 6 of 103
Sr. Exhibit Details of documents Proved by
No. No.
44. PW18/A DD NO. 6A Insp. Ajay Kumar
45. PW18/B Site plan
46. PW18/C Brief Facts
47. PW18/D Photocopy of FSL
48. PW18/E Photocopy of FSL
49. PW18/DX1 MLC of accused Harvinder
50. PW18/DX2 MLC of accused Sunil
51. PW19/A Postmortem Report Dr. Vijay Dhankar
52. PW19/B Subsequent Opinion
EVIDENCE:
(5) In order to prove its case the prosecution has examined as
many as Nineteen Witnesses as under:
Public witnesses:
(6) PW11 Ajay Giri who is into the profession of cable
networking has deposed that they are four brothers and initially they were living in D2/4, Budh Vihar, PhaseI, which they had sold three months prior to the date of incident. According to the witness they had equally distributed the sale amount of said plot amongst his brothers i.e. he himself, Sushil, Shiv Kumar Giri and Sumit Giri and thereafter they started living separately. He has further deposed that his brother Sumit and Shiv Kumar (deceased) purchased a floor of 50 yards at D2/9, Second floor, Budh Vihar, Delhi. According to him, about 1 - 1 St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 7 of 103 ½ years prior to the incident a quarrel had taken place with his brother Shiv Kumar (since deceased) and accused Harvinder whom the witness has correctly identified in the court, after which accused made a complaint against his brother in Police Station Vijay Vihar and on this aspect accused Harvinder had a grudge against his brother Shiv Kumar who had given beating to Harvinder. The witness has testified that he had warned his elder brother Shiv Kumar to be careful from accused Harvinder as he could go to any extent to take revenge.
(7) The witness has further deposed that on 17.03.2013 at about 10.0010.30PM he was taking a walk with his dog on the road adjoining to his residence and at that time he noticed accused Harvinder and Sunil @ Sethi along with Rakesh @ Andy (Proclaimed Offender) and his brother Shiv Kumar eating eggs on a rehri of one Raju. According to the witness after some time of taking a walk he went to his house along with his dog. He has also deposed that at about 11.40PM he received a missed call from the mobile of his brother Shiv Kumar and he came on terrace and noticed that accused Harvinder, Sunil @ Sethi and accused Rakesh @ Andi were beating his brother. The witness has further deposed that he had noticed that accused Harvinder caught hold of his brother and accused Rakesh @ Handi were slapping and accused Sunil @ Sethi was giving danda blows to his brother. According to him, on seeing this he immediately came down and came out from his house and on seeing St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 8 of 103 him all the accused persons ran away from the spot. He has testified that blood was oozing from the nose and mouth of his brother and he was lying in a pool of blood. Witness has further deposed that he tried to shake his brother Shiv Kumar by calling out to his name but he was not responding and thereafter he went to call his brother Sumit and to arrange a TSR so that he can shift his brother to the hospital.
According to the witness in between 12.0012.30 he came at the spot with his brother and took his brother Shiv Kumar to BSA Hospital where his brother Shiv Kumar was declared brought dead. The witness has testified that in the meantime someone had called the PCR and thereafter his statement was recorded by the Investigating Officer which is Ex.PW11/A. According to him, after the postmortem dead body of his brother was received by him and his brother Sumit vide receipt Ex.PW11/B. Witness has further deposed that prior to the postmortem on the body of Shiv Kumar he and his brother Sumit had identified the body of his brother vide Ex.PW11/C and Ex.PW11/D. (8) In his cross examination by the Ld. Defence Counsel, the witness has deposed that the house sold by them was against a consideration of Rs.33,50,000/. According to the witness, he is married and was residing at K1/9, Budh Vihar, Phase I, Delhi first floor on the date of the incident and the spot of incident is hardly less than then feet from his residence. Witness has further deposed that the distance between his house and that of his brother Shiv Kumar is about St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 9 of 103 five minutes walking distance and has voluntarily explained that his brother was residing in D Block whereas he was residing in K Block. The witness has explained that his other brother Sumit was residing with his brother Shiv Kumar. According to him, when he saw his brother with accused persons while he was taking his dog for a walk, he did not call out to him or take him away from the accused with whom there was a previous dispute. He is unable to tell what they were eating and drinking and has voluntarily explained that he did not go near them. According to the witness he had seen the accused with his brother Shiv Kumar when he was going back home with his dog after the walk but he is unable to tell the exact time and has voluntarily added that it must be around 10:30 PM. He has also deposed that at that time Raju Ande Wala was also there but he did not pay any attention as to who were the other persons present there. Witness has admitted that there are two shops at the corner of the lane where the body of his brother was found. Witness has further deposed that at around 10:30 PM when he was taking a walk, the said shops were open but when the body of his brother was found, they were closed. He has testified that one shop of grocery belongs to Shahji but he is unable to tell the name of the other shopkeeper who is running the stationary shop. He is not aware if the complete name of Shahji is Dharam Singh. Witness has admitted that at the corner of the lane there is a five storied house but the said house is not completely occupied and has St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 10 of 103 voluntarily added that only few people are residing there. Witness has admitted that the shopkeeper of K1/8 resides on the first floor on top of the shop. According to him, when his brother gave him a missed call at about 11:40 PM he gave a return call to him but his phone was switched off. He does not recollect if he had told the police that he had given a return call to his brother but his phone was switched off and has voluntarily added that he was in an extreme state of tension. According to the witness there was a street light in the lane/ gali where the body of his brother was found, which street light was on at that time. The witness has also deposed that when he saw his brother being beaten he went to him to save him and did not raise any alarm and has voluntarily added that he wanted to save his brother first. Witness has further deposed that he did not receive any injury in the scuffle when he was trying to save his brother nor his clothes were torn. According to the witness, he did not notice the clothes of his brother Shiv Kumar being torn and has voluntarily added that he only noticed the blood coming out from his nose and ears. He has also deposed that he tried to shake his brother Shiv Kumar by calling out to his name but he did not respond. The witness has testified that he did not make any inquiry from his brother because he was not responding. He has also deposed that he chased the accused persons till some distance when they ran away on seeing him but thereafter returned to his brother and he only shouted ruko ruko but did not raise any alarm. Witness has further St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 11 of 103 deposed that he had reached the house of Sumit at about 12:00 midnight after seeing the condition of his brother Shiv Kumar. He has also deposed that first he went to his brother and then he called the auto/ TSR and when he put his brother Shiv Kumar into the TSR for taking him to the hospital, the police/ PCR had already reached there. Witness has also deposed that he reached the hospital first and police followed them to the hospital and reached there later. According to him, Sumit also accompanied him to the BSA Hospital in the TSR. He is unable to tell the time when they reached the hospital and states that he has no idea if Shiv Kumar was still alive when he was in the TSR but when they reached the hospital he was declared 'brought dead'. Witness has further deposed that the history was given to the doctor by two police officers and has voluntarily added that he was extremely disturbed at that time. He is not aware if the police had informed the doctors about the history of assault by the accused and no treatment was given to his brother and has voluntarily added that he was declared brought dead. According to the witness he has no idea but in so far as he knew, Shiv Kumar also had a jhagra previously when he had received injuries on his head which wound was stitched. He is not aware of the person with whom Shiv Kumar had a previous dispute in which he had received injuries on his head. Witness has admitted that he had not informed the police/ PCR/ Ambulance during any time in the present incident. Witness has St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 12 of 103 further deposed that at that time he was not aware as to who made a call to PCR. He is unable to tell the name of the police personnel present at the spot when he removed his brother Shiv Kumar to hospital. According to the witness from hospital he returned back to the spot in the night but he is unable to tell the exact time. He has also deposed that his brother Sumit returned to his house and dead body of Shiv Kumar was left in BSA Hospital but he does not know what happened thereafter. Witness has further deposed that it was later part of the night i.e. at about 4:004:30 AM when he returned back at the spot and the police prepared rough site plan at his instance and took the photographs. He has testified that police had recorded his statement twice. According to the witness he had not given any rent agreement to the police showing that he was residing at his above address and has voluntarily added that police did not ask for the same. He has also deposed that he knew the accused Sunil for the last one year. (9) The witness Ajay Giri has admitted that their residential house had been sold about three months prior to the incident but has denied the suggestion that there was a dispute between himself, Sumit and Sushil on one side and their brother Shiv Kumar on other side as they had refused to give him his share and has voluntarily added that Shiv Kumar had been given his share since out of the amount received from the house which was sold, they had purchased a new house where Sumit and Shiv Kumar were residing which house is in the names of St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 13 of 103 their wives. Witness has further deposed that he has no criminal cases against him and so far as he knew Sumit has one case against him whereas in so far as his brother Shiv Kumar is concerned he had one case pending against him which is FIR No. 349/11, Police Station Vijay Vihar. According to the witness, he had no disputes with his brother Shiv Kumar. The witness has also deposed that he is 24 years old and his brother Shiv Kumar was 27 years of age. Witness has denied the suggestion that Shiv Kumar was not legally married to his wife and was only staying with her after elopement and has voluntarily added that it was a love marriage which had taken place in the court and thereafter they were living as husband and wife and were also having a daughter who at the time of incident was one month old. He has denied the suggestion that his brother Shiv Kumar had confined his niece i.e. the daughter of his brother Sushil Kumar in a room and on hearing her voice the neighbors had saved the child on which all of them i.e. Sushil, Sumit and himself were annoyed with Shiv Kumar and has voluntarily added that no such incident had taken place. The witness has also denied the suggestion that on the date of incident Shiv Kumar had seen Sumit with his (Shiv Kumar's) wife in an objectionable position on which he got annoyed and thrashed Sumit on account of which he received head injuries which were stitched and has voluntarily added that no such incident had taken place. He has further denied the suggestion that on account of the fact that they were St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 14 of 103 annoyed of the behaviour of Shiv Kumar he along with his brother Sumit had killed him and thereafter threw the dead body in the lane and shifted the blame on the accused persons. Witness has also denied the suggestion that his brother Shiv Kumar was diehard drunkard and has voluntarily clarified that his brother Shiv Kumar was only an occasional drinker. He has further denied the suggestion that he was not residing at his above given address and was not taking a walk in the area along with the dog or that the entire incident has been concocted only to lend credence to the prosecution version and divert the blame on the accused persons.
(10) PW12 Jai Bhagwan has deposed that on the intervening night of 17/18.3.2013 he had gone to Kanjhawala Road Bus stand alongwith his twothree relatives to drop them and at about 12.2012.22 AM while he returned after dropping his relatives and reached at in front of K1/8, Budh Vihar, PhaseI and he noticed the crowd of some public persons. According to the witness, he noticed Ajay Giri and Sumit Giri in the crowd, they were weeping and the body of Shiv Kumar was in a pool of blood was also lying at the spot. Witness has further deposed that Shiv Kumar was the brother of Ajay Giri and Sumit Giri and he inquired from Ajay and Sumit but they were in perplexed condition and they could not properly responding. The witness has also deposed that having no option he made a call at 100 number around 12.30AM. He has testified that within 2025 minutes St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 15 of 103 of his call, PCR Came at the spot and they took the body of Shiv Kumar in the hospital and Ajay and Sunit also accompanied the PCR. According to the witness local police also came at the spot and when they took the dead body of Shiv Kumar to the hospital after making the local inquiry at the spot and he returned to his house. He has testified that he was interrogated by the local police and whatever he had stated the entire facts before the Investigating Officer during interrogation. (11) In his cross examination by Ld. Defence Counsels, the witness has deposed that he cannot tell in which Hospital the Police took the dead body of Shiv Kumar nor can he tell the exact time when body of Shiv Kumar was shifted to the hospital and has voluntarily explained that it took around two to three hours. According to the witness he returned to his house at about 2.30AM. The witness has also deposed that he made the call at 100 from his mobile no. 8760136123. Witness has further deposed that the SIM of the said mobile number is in his name and he had not given any document pertaining to the ownership of the said mobile number. He has also deposed that police had recorded his statement at the spot on the same day as well as on the next day in the Police Station and has voluntarily added that his signatures was not taken on any documents. Witness has denied the suggestion that he did not make any call to the police. (12) PW15 Sumit has deposed that on 18.3.2013 he was at his house when his brother Ajay came home at night at around 11:00 PM St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 16 of 103 and informed him that his brother Shiv Kumar @ Shibbu was lying in the gali near the pole and appeared to had been beaten as he was bleeding from the ear. According to the witness, on this he along with Ajay reached the gali where the police had already reached and they identified Shiv Kumar @ Shibbu as their brother. He has further deposed that his brother Ajay then informed the police about what he had seen while he was on one side and thereafter the police shifted the body of his brother to BSA Hospital where he identified the body of his brother vide memo Ex.PW11/D and after the postmortem he received the dead body of his brother vide receipt Ex.PW11/B. (13) In his cross examination by Ld. Defence counsel, witness has deposed that he was very perplexed at the time on hearing the incident and therefore the exact time he was not able to tell but states that it was around 12:301:00 AM at night when his brother Ajay had come home after which they reached the spot. According to the witness it hardly took them three to five minutes when Ajay came to his house and told him what he had seen. He is unable to tell what exactly Ajay was telling to the police at the spot and has voluntarily explained that he want to tell that at around 11:30 PM he had spoken to his brother Shiv Kumar on his mobile No. 9250031086 from the mobile of his wife bearing No. 9213176774 and he told him that Rakesh had called him as he was getting his compromise done with Harvinder in another Court case. Witness has further deposed that he St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 17 of 103 had told the above fact regarding having spoken to his brother at 11:30 PM on his mobile to the police but he cannot tell if they had recorded the same in his statement. (It has been observed by this Court that there is no statement of this witness under Section 161 Cr.P.C. on the judicial file.) (14) Witness has admitted that their residential house had been sold about three months prior to the incident. He has, however, denied that there was a dispute between himself, Ajay and Sushil on one side and their brother Shiv Kumar on other side as they had refused to give him his share and has voluntarily added that Shiv Kumar had been given his share since out of the amount received from the house which was sold, they had purchased a new house where they are now presently residing in the names of his wife and also the wife of Shiv Kumar and he can produce the documents in respect of the same. Witness has further deposed that he has two criminal cases pending against him and so far as he was aware, his brother Shiv Kumar had one case pending against him which is FIR No. 349/11, Police Station Vijay Vihar and he was not aware of the other cases. According to the witness there are no cases against his other brothers and he had no disputes with his brother Shiv Kumar who was like a father figure to him being the elder and he was the youngest. Witness has also deposed that he is running 22 years old and his brother Shiv Kumar was 27 years of age and has voluntarily added that his brother St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 18 of 103 Sushil is the eldest followed by his sister and then Shiv Kumar and Ajay and himself. Witness has denied the suggestion that Shiv Kumar was not legally married to his wife and was only staying with her after elopement and has voluntarily added that it was a love marriage which was taken place in the court after which they were living as husband and wife and also having a daughter who at the time of incident was three months old. Witness has denied the suggestion that his brother Shiv Kumar had confined his niece i.e. the daughter of his brother Sushil Kumar in a room and on hearing her voice the neighbours had saved the child on which all of them i.e. he, Sushil and Ajay were annoyed with Shiv Kumar and has voluntarily added that no such incident had taken place in his presence nor he had heard about the same. He has also denied the suggestion that on the date of incident Shiv Kumar had seen him (i.e. witness) with his (i.e. Shiv Kumar) wife in an objectionable position on which he got annoyed and thrashed him and has voluntarily added that he respects all his bhabies and as per his culture he has not even put color on them on Holi, what to talk about any relations. Witness has denied the suggestion that on account of the fact that they were annoyed with the behaviour of Shiv Kumar he along with his brother Ajay had killed him and shifted the blame on the accused persons. He has also denied the suggestion that his brother Shiv Kumar was diehard drunkard and has voluntarily added that his brother Shiv Kumar was only an occasional drinker as most of the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 19 of 103 people. Witness has denied the suggestion that being aggrieved by the death of his brother he has now improved upon his earlier version. (15) PW16 Raj Kumar @ Raju has deposed that in the year 2013 he used to sell the boiled egg near Telephone Road, Budh Vihar PhaseI and at about 1.30/2.00AM while he was sleeping at his house, some police officials came to his house and took him to the Police Station. According to the witness he was interrogated and he informed them that he used to put rehri on which used to sell egg from 4.00 PM to 10.00 PM and they he cannot identify any other persons who had purchased the boiled egg in the month of March i.e. around 16/17 March 2013.
(16) With the permission of the Court questions were put to the witness by Ld. Addl. PP for the State wherein the witness has deposed that accused Harvinder, Sunil and Rakesh and deceased Shiv Kumar did not purchase boiled egg from him and they were also not enjoying in front of his rehri and did not place any order of egg. (17) In his cross examination by the Ld. Addl. PP for the State, the witness has deposed that his statement was not recorded by the police. When statement Ex.PW16/PX1 was read over to the witness who has denied having made so before the police from point A to A. He has denied the suggestion that on 17.03.2013 at about 8.008.30PM, accused Harvinder, Rakash, Sunil and Shiv Kumar (since deceased) were drinking and eating on the side of the road St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 20 of 103 or that they had purchased boiled egg from him or that both the accused persons present in the court were eating and drinking upto 10.00/10.15PM and has voluntarily added that he used to install the rehri till 10.00 PM only. Witness has also denied the suggestion that at about 10.15PM, they had placed an order of Omelet but he showed his inability as it was odd hours or that due to pressure mount on him by the accused persons and the deceased he had served them the Omelet. He has denied that till he closed his rehri he had lastly saw the deceased in the company of accused persons. He has denied that as he has been won over by the accused persons i.e. why he intentionally not identifying them. Witness has further denied the suggestion that his statement was recorded or that he intentionally concealing the material facts of his statement or that accused persons had purchased the egg from his rehri or that he has deposed falsely. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
Witness of Medical Record:
(18) PW19 Dr. Vijay Dhankar has deposed that on 18.03.2013 he conducted postmortem on the body of Shiv Kumar S/o Sant Giri aged about 25 years on the request of Addl. SHO/ Inspector Ajay Singh of Police Station Vijay Vihar and during postmortem examination he found the following injuries:
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 21 of 103
1. Stitched wound 4cm long present over the upper part of occipital region of head,
2. Laceration 2cm x 0.5cm present over the left side of upper lip.
3. Contusion 7cm x 2 cm horizontally placed present over the upper part of the left side of the face
4. Contusion 8cm x 2cm, horizontally placed parallel and 2cm below injury no.3 present over the middle part of left side of face.
5. Contusion 8cm x 2cm horizontally placed parallel and 2cm below injury no.4 present over the lower part of left side of face.
6. Rail road type contusion 9cm x 3cm with a gap of 1.2cm between the two contusions present over the left upper outer part of front of chest.
7. Abrasion 3cm x 2cm present over the front of left knee.
(19) Witness has further deposed that on internal examination Commuted fracture of base of skull was present in the posterior cranial fossa; Thick layer subarachnoid hemorrhage was present all over the brain more prominent over the base of brain; Brain parenchyma was edematous with flattening of gyri and obliteration or sulci, Uncal grooving was present and all internal organs was congested. (20) He has proved having opined that the cause of death was cranio cerebral damage consequent to blunt force injury to the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 22 of 103 head, all injuries were ante mortem in nature, fresh at the time of death and caused by blunt force and the external injuries over the head and face together with the internal injuries were sufficient to cause death of in the ordinary course of nature. He has proved the detailed Postmortem Report running into five pages which is Ex.PW19/A. Witness has further deposed that after the postmortem clothes of the deceased, viscera along with the blood sample and blood sample on gauze were preserved, sealed with the seal of the department and handed over the same to the police official. He has also deposed that subsequently on 02.05.2013 he examined one baseball bat received from Inspector Ajay Kumar Singh of Police Station Vijay Vihar and after examination he opined that the injuries as mentioned in the Postmortem Report could be caused by the baseball bat examined and he prepared by detailed report in this regard bearing no. 21/2013. Witness has further deposed that he also prepared the sketch of the baseball bat. According to him, the total length of the baseball bat was 65 cms, the width of the one end of the baseball bat was 5cm and the width of another end was 3.2cm, this end was broken and the baseball bat was mud stained. He has proved his subsequent opinion with sketch of the baseball bat which is Ex.PW19/B. The witness has correctly identified the case property i.e. baseball bat which is Ex.P1; one full sleeve shirt multi coloured blood stained which is Ex.P5, white St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 23 of 103 coloured baniyan which is Ex.P6, blue coloured jeans which is Ex.P7, brown coloured belt which is Ex.P8, blue coloured underwear which is Ex.P9, a pair of green and black coloured shoes which is Ex.P10 with grey colour socks Ex.P11 as the same belonging to the deceased which were removed from the body and handed over to the police officials in the sealed pullanda.
(21) In his cross examination by Ld. Defence counsel, witness has deposed that the old stitched injuries present on the occipital region was a fresh injury but he cannot tell about the exact period. A specific Court Question was put to the witness whether is it possible that the said injury was a few hour old or one day old, to which the witness has replied in affirmative and has explained that it could be from a few hours i.e. at the time of incident at the time of death or six hours earlier to the same. Witness has admitted that he did not examine injury no.1 properly so as to ascertain the exact age/time of injury and has voluntarily explained that he was not asked by the Investigating Officer to do so and he can only say that it was less then six hours old. Witness has admitted that the age of the injury can be told by examining the nature and texture of the skin around the injury and of the stitches. He has denied the suggestion that opinion with regard to the cause of death has been given on the asking of the Investigating Officer. He has admitted that injury no. 2 to 7 are possible on St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 24 of 103 account of fall on the hard, rough surface. Witness has further deposed that Ribs had not been fractured. He has also admitted that if injury no.1 had not been inflicted the injuries no.2 to 7 collectively were not sufficient to cause death. He has admitted that it is only injury no.1 which is sufficient to cause death in ordinary course of nature. He is not aware from where the injury no. 1 was got sutured / stitched and has explained that there was no medical record placed before him to show that it was got treated from the BSA Hospital. Witness has admitted that injury no.6 could be possible by falling upon a linear hard surface. Witness has further deposed that his finding with regard to the weapon of offence is not a conclusive finding but only an approximate finding and has voluntarily added that he had stated that it was possible with this bat or a similar kind of weapon and he further added that it could also be possible on account of fall on hard surface like the edge of a hard surface like stairs case, footpath, table etc. Police/ official witnesses:
(22) PW1 Inspector Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the scaled site plan which is Ex.PW1/A. St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 25 of 103 (23) In his cross examination by the Ld. Defence Counsel, the witness has deposed that he has taken the rough notes from the scene of crime but the same has already been destroyed. According to the witness he does not remember the date and the month on which he handed over the scaled site plan to the Investigating Officer. He is not know whether there is any Ram Mandir Road near the spot nor is he able to tell whether the road named by him as "Telephone Road" in the scaled site plan is the actually the Ram Mandir Road. He does not recollect by what name the shop shown in the scaled site plan as shop No. K1/9/1 was running and same is his answer in respect of shop No. K1/8. Witness has denied the suggestion that he did not visit the spot and he prepared the site plan in the Police Station on the asking of the Investigating Officer.
(24) PW2 ASI Ajeet Singh is also a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the Crime Team Report which is Ex.PW2/A. (25) In his cross examination by Ld. Defence counsel, witness has deposed that he received the information at about 1:00 AM and they reached the spot at about 2:10 AM on 18.3.2013. According to the witness SI Sanjeev and Inspector Ajay Singh were present at the spot and as per his information PCR had already left the spot and he left the spot at 3:10 AM. Witness has further deposed that they had been St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 26 of 103 provided only DD number but he is not aware whether the FIR had been registered by that time. Witness has admitted that in column no.
14 of his report the word "dande ki" has been added later. According to the witness no finger print expert was called at the spot. Witness has admitted that no exhibits were collected in his presence. Witness has further deposed that he had noticed only fresh injuries on the dead body and he did not search the pockets of the dead body. Witness has denied the suggestion that he did not examine the spot properly or that he did not examine the dead body properly and he prepared the Crime Team Report at the instance of the Investigating Officer only. (26) PW3 Ct. Kamal is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken the photographs of the scene of crime which are Ex.PW3/A1 to Ex.PW3/A12 and negatives of the same which are collectively Ex.PW3/B. He has been crossexamined by the Ld. Defence Counsel but he has stood by his version.
(27) PW4 HC Balak Ram is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the copy of FIR which is Ex.PW4/A and his endorsement on the rukka which is Ex.PW4/B. This witness was not cross examined St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 27 of 103 by Ld. Defence counsel despite being granted an opportunity in this regard.
(28) PW5 HC Rakesh is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entries in Register No. 19 at serial No. 163/13 copy of which is Ex.PW5/A (running into three pages); entry at serial No. 243/13 copy of which is Ex.PW5/B (running into two pages); RC No. 149/21/13 which is Ex.PW5/C bearing his signatures at point A and RC No. 150/21/13 copy of which is Ex.PW5/D. He has been cross examined by the Ld. Defence Counsel but he has stood by his version. (29) PW6 W/Ct. Anju is a formal witness being the PCR Official who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved having filled up the PCR Form which is Ex.PW6/A. This witness was not cross examined by Ld. Defence Counsel despite being granted an opportunity in this regard.
(30) PW7 Ct. Naresh is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having delivered the copy of FIR at the residence of Ld. MM, Joint Commissioner of Police (Northern Range) and Deputy St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 28 of 103 Commissioner of Police (Outer District). This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity in this regard.
(31) PW8 HC Jitender is a formal witness being the PCR Van Incharge who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 18.3.2013 at about 12:35 AM he received a call from the PCR Control Room pursuant to which he reached the spot near House No. K1/8, Budh vihar, PhaseI, Delhi. He has proved that he along with staff remained at the spot for about 45 minutes and conveyed the entire facts to the Police Control Room. (32) In his cross examination by Ld. Defence counsel, witness has deposed that he reached the spot within six minutes of receiving the call. According to the witness there were around twothree persons standing at the spot when he reached the spot and one of them was the caller who had made the PCR Call. Witness has further deposed that the local police i.e. SI Sanjeev Kumar had reached the spot within 15 minutes of his reaching there and conducted the search of the deceased and from his body his PAN Card and Adhar Card were recovered on the basis of which his identity was established. According to the witness Crime Team had come to the spot in his presence and when he left the spot the inspection of the Crime Team was still going on. He is unable to tell the investigations which were being conducted by the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 29 of 103 Investigating Officer and also cannot tell whether any exhibits were lifted by the Investigating Officer at that time. He has further deposed that while he was still present at the spot, the brother of the deceased had come and identified him.
(33) PW9 Ct. Sherpal is a formal witness who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that he took the rukka to the Police Station and got the FIR registered. He has been cross examined by the Ld. Defence Counsel but he has stood by his version. (34) PW10 HC Sunil Dutt has deposed that on 17.3.2013 he was posted as HC at Police Station Vijay Vihar and was on duty as the Beat Officer of the area where the crime had taken place. According to the witness, while he was present in the area on Beat Duty in the intervening night of 1718.3.2013 an information of murder had been given to him by the Duty Officer on his phone pursuant to which he reached the spot where he found SI Sanjeev, Inspector Ajay Singh and other police staff. According to the witness he remained present at the spot for about half an hour and thereafter he was asked by Inspector Ajay Kumar to search for the assailants i.e. Sunil, Rakesh and Harvinder who were residents of Budh Vihar on which he along with the other staff tried to search for the accused but could not locate them. Witness has further deposed that at about 7:00 AM they reached at Budh Vihar Rithala Road where they met Inspector Ajay Kumar who St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 30 of 103 handed over to them one person as he was interrogating another boy and thereafter Inspector Ajay Kumar interrogated both the said boys and arrested them. According to the witness, Inspector Ajay then went away along with the said boys and police staff while he (witness) followed them in his vehicle. The witness has testified that one of the boys namely Sunil i.e. the accused then led them to Budh Vihar Ganda Nala and from there got recovered a baseball danda from the Nala. Witness has further deposed that Inspector Ajay then took the danda into possession and seized the same. According to the witness while Inspector Ajay Kumar was investigating the case he only remained with him and cannot tell the details of investigations conducted by him and in the afternoon they returned to the Police Station from where he was relieved.
(35) Witness has further deposed that on 29.4.2013 he along with the Investigating Officer had gone to BSA Hospital where the Investigating Officer handed over a sealed pullanda containing the baseball danda to the Autopsy Surgeon for his opinion. According to the witness thereafter on 2.5.2013 on the directions of the Investigating Officer he brought back the said sealed pullanda containing the baseball danda which was sealed with he seal of hospital which he handed over to the MHCM and he had also obtained the opinion from the Autopsy Surgeon which he handed over to Investigating officer Inspector Ajay Kumar. According to him, on 6.5.2013 on the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 31 of 103 directions of the Investigating officer he took six sealed pullandas vide RC No. 149/21/13 and one sealed pullanda vide RC No. 150/21/13 which are Ex.PW5/C and Ex.PW5/D respectively which he deposited in the FSL Rohini vide file No. FSL/2013/D3571 and FSL/2013/C3576 which receipts of the FSL are Ex.PW10/A and Ex.PW10/B which acknowledgment and copy of the RC he handed over to the MHCM (CP). He has testified that the exhibits remained safe in his custody and nobody tampered with the same and Investigating Officer recorded his statement.
(36) The witness has correctly identified the accused Harvinder and Sunil in the Court as the persons who had already been apprehended by Inspector Ajay. He has also identified the case property i.e. a baseball bat with a broken head as the same which was got recovered by the accused Sunil from Ganda Nala, which baseball danda is Ex.P1.
(37) In his cross examination by Ld. Defence counsel, witness has deposed that he had reached the spot of the incident in his capacity as the Beat Constable of the area but he was not called by any senior officer to the spot. According to the witness, when he reached the spot he found SI Sanjeev present there. Witness has admitted that his signatures are not present on any of the documents prepared by the Investigating Officer at the spot. He has also admitted that when they leave for Beat Duty they make their departure entry and on their return St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 32 of 103 make a wapsi/ arrival entry. According to the witness, he did not mention in his wapsi/ arrival about joining the investigations in the present case, apprehension and arrest of accused Sunil and Harvinder and recovery of danda from ganda nala. He has testified that in his presence the Investigating Officer had only mentioned the details of the danda on the pullanda but did not make any identification mark in his presence. He is unable to tell the proceedings which took place during the interrogation of the accused Sunil and Harvinder nor can he give the details of what was disclosed by them as he was standing on one side. Witness has denied the suggestion that he was not present during the investigations and therefore his signatures are not present on any documents or that it is for this reason that he did not mention the details in his wapsi/ arrival entry. Witness has denied the suggestion that on the intervening night of 1718.3.2013 he was not on beat duty as claimed by him.
(38) PW13 HC Satish Kumar has brought the record from the Record Branch, Model Town pertaining to CR.D.D. No. 131340010 i.e. the PCR FormI which is already Ex.PW6/A. This witness was not been cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(39) PW14 HC N. Sridhar is a formal witness who has been examined by way of affidavit which is Ex.PW14/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the copy of St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 33 of 103 FIR No.349/11, under Section 325/ 323/ 341/ 34 IPC, Police Station Vijay Vihar copy of which is Ex.PW14/A. This witness was not cross examined by Ld. Defence counsel despite being granted an opportunity in this regard.
(40) PW17 SI Sanjeev Kumar has deposed that on the intervening night of 17/18.03.2013 he was posted in Police Station Vijay Vihar and was on emergency duty from 8.00 PM to 8.00 AM and at about 12.40 AM he received information vide DD No.5A true copy of the same is Ex.PW17/A. According to the witness on received the same he alongwith Ct. Jai Singh reached the spot i.e. gali near H.No. K1/8, Budh Vihar, PhaseI where he found PCR Officials namely HC Jitender alongwith staff. Witness has further deposed that some public persons were also present there and one person was lying in injured condition near the pole in the pool of blood whose name he came to know later on as Shiv Kumar. He has also deposed that he checked the injured and he was without any senses as he was dead. The witness has further deposed that thereafter he gave information to the senior officers after which Crime Team and senior officers came at the spot and in the meantime Ajay Giri the brother of the deceased appeared at the spot. According to the witness, he made inquiries from Ajay Giri who made his statement which is Ex.PW11/A and thereafter he made his endorsement on the statement of Ajay Giri vide his endorsement Ex.PW17/B and prepared the rukka which he sent to Police Station St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 34 of 103 through Constable Sher Pal for registration of the case. Witness has further deposed that in the meantime Inspector Ajay sent the body of Shiv Kumar in the mortuary of BSA Hospital through one Constable whose name he does not recollect and in the meantime Ct. Sher Pal returned at the spot and he handed over the copy of FIR and original rukka to Inspector Ajay who further took over the investigation. He has proved that thereafter Inspector Ajay lifted the blood stained concrete, blood sample and sample of the concrete which he kept in separate plastic dibbies and converted the same into pullanda and sealed with the seal of AKS and was taken into possession vide memo Ex.PW17/C. He has further deposed that in the meantime a secret informer came at the spot and informed the Inspector that the assailants wanted in this case might be available near Milan Vatika, Budh Vihar PhaseI, Delhi. The witness has testified that thereafter he along with Investigating Officer, HC Sunil, Ajay Giri and other police staff reached near Milan Vatika where the secret informer pointed out towards one Sunil Kumar and Harvinder Singh found present there and they were also identified by Ajay Giri as the assailants. He has also deposed that thereafter police party apprehended both the accused persons Sunil Kumar and Harvinder Singh who were interrogated by the Investigating Officer and were arrested vide memo Ex.PW17/D and Ex.PW17/E; their personal search was carried out vide memo Ex.PW17/F and Ex.PW17/G and their disclosure statements were St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 35 of 103 recorded vide Ex.PW17/H and Ex.PW17/I. He has further deposed that thereafter both the accused persons lead the police party to Ganda Nala, Budh Vihar from where the accused Sunil got recovered a baseball bat on which word "FANTA" was written and one head of the baseball bat was broken. He has proved that the Investigating Officer converted the said baseball bat in a pullanda and sealed the same with the seal of AKS and took the same into possession vide memo Ex.PW17/J. Witness has further deposed that thereafter both the accused persons pointed out the place of incident vide pointing out memo Ex.PW17/K and Ex.PW17/L bearing his signatures at point A as well as of Ajay at point B but the signatures of Ajay Giri could not be obtained as he had to go to his house as his brother Shiv Kumar had expired and their relatives were gathered there. He has testified that thereafter he along with Investigating Officer, both the accused persons and case property and police party came to the Police Station where the Investigating Officer deposited the case property with MHC(M) and accused were kept in lock up. He has further deposed that thereafter he alongwith Investigating Officer went to BSA Hospital where the Investigating Officer prepared the inquest proceeding and the body of Shiv Kumar was tendered for postmortem after which the body was handed over to the relatives of the deceased. The witness has further deposed that thereafter he alongwith Investigating Officer came to the Police Station and St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 36 of 103 Investigating Officer recorded his statement.
(41) According to the witness, again on 22.04.2013 he alongwith Investigating Officer went to BSA Hospital for further investigations where doctor handed over a viscera box which was sealed with the seal of BSA Hospital alognwith sample seal and another gatta peti which was sealed with the seal of Dr. BSA Hospital alongwith sample seal and the same were taken into possession vide memos Ex.PW17/M and Ex.PW17/N. He has testified that at that time doctor also handed over a sample seal which was affixed on both the boxes and thereafter he alongwith Investigating Officer returned to the Police Station where the Investigating Officer deposited the case property with the MHC (M).
(42) Witness has identified the case property i.e. baseball bat which was got recovered by accused Sunil, which is Ex.P1; earth concrete material which is Ex.P2; blackish concrete material which is Ex.P3 and cotton swab having brown stains which is Ex.P4. (43) In his cross examination by Ld. Defence counsel, witness has deposed that he was in the area of Sector 4, Rohini when he received telephonic information about DD No. 5A but he cannot tell the DD number vide which he was in the area of Sector4, Rohini. According to the witness, HC Sunil Dutt was not with him and has voluntarily added that he came later on along with Inspector Ajay as he belong to the same beat. He is unable to tell the details of the Beat of St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 37 of 103 which he was the Beat Constable and Ct. Sher Pal was also from the same Beat but he was not sure about Ct. Subhash. Witness has further deposed that when he reached the spot the PCR officials had already reached there. He has also deposed that he received the information at about 12:34 AM on 18.3.2013 and he reached the spot within 1520 minutes. According to the witness Crime Team was called by him after he had reached the spot and there were about 1520 public persons present at the spot. He has testified that he had made inquiries at the spot as to who had made the PCR Call and he came to know that it was one Jai Bhagwan who had made a PCR Call. Witness has also deposed that when he reached the spot he did not find any relative of the deceased but within tenfifteen minutes the brother of the deceased also reached and has voluntarily explained that he came to know that he was already present at the spot but he had gone to call the TSR/ Auto. Witness has further deposed that the Crime Team reached the spot at about 2:30 AM and when he reached the spot the PCR officials told him that the victim had already expired and when he checked him he also did not notice any movement. According to the witness, at the spot itself he carried out a cursory inspection of the body to find out the injuries present on the body but did not remove the clothes to carry out the detail inspection. He has testified that when he checked the pockets of the pants of the deceased, he found an Adhar Card and PAN Card on which the name of Shiv Kumar was written and has St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 38 of 103 voluntarily explained that in the meantime his brother had also come. Witness has further deposed that the Adhar Card and the PAN Card were not taken into possession and has voluntarily added that they were handed over to the brother of the deceased. He has also deposed that the dead body was shifted to Mortuary of BSA Hospital by Inspector Ajay Singh in a government vehicle i.e. TATA 407. According to the witness in his presence the body was never taken to BSA Hospital by his brother Ajay or Sumit in a TSR and has voluntarily explained that it was sent to Mortuary of BSA Hospital by Inspector Ajay Singh. He has further deposed that the body was shifted to Mortuary of BSA Hospital at about 3:304:15 AM and he remained at the spot till about 7:00 AM. He has also deposed that Crime Team had left the spot after the body was shifted to Mortuary of BSA Hospital. He is unable to tell the details of the police officials who had accompanied the dead body to the mortuary and has voluntarily added that he remained at the spot. According to the witness, he had told the Crime Team Incharge the name of the complainant and the first time he came to know about the identity of the deceased was on the basis of Adhar Card and PAN card recovered from his body and soon thereafter his brother also came and confirmed the same. The witness is unable to tell the time when Ajay got his statement recorded before the Investigating Officer Inspector Ajay Singh and has voluntarily explained that he had recorded the statement of Ajay. He is not aware of any other statement of Ajay St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 39 of 103 being recorded by Inspector Ajay Singh. Witness has further deposed that he recorded the statement of Ajay at about 3:203:30 AM and Inspector Ajay Singh as well as SHO Inspector Sunil Chauhan had already reached the spot when he recorded the statement of Ajay but he cannot tell the exact time of their arrival. According to the witness HC Sunil Dutt also reached the spot along with Inspector Ajay Singh and apart from HC Sunil Dutt, ASI Pradeep and other staff of the Police Station also reached the spot but he cannot tell by which vehicle they reached the spot. Witness has further testified that except the statement of Ajay, he himself did not record the statement of any of the witnesses nor he noticed the statements of public persons being recorded at the spot by the Investigating Officer and has voluntarily explained that he paid no attention to the proceedings which were being conducted by the Investigating Officer at his level.
(44) The witness has admitted that the spot where the dead body was lying is a crossing/ Chauraha. Witness has further deposed that he left the spot along with Inspector Ajay Singh at about 7:00 AM on 18.3.2013. He is unable to tell whether SHO was at the spot or not when he left the spot with Inspector Ajay Singh. Witness has further deposed that he did not make any inquiry regarding any other case registered against the accused Sunil and Harvinder and the secret information was received by the Investigating Officer and not by him. According to the witness in his presence Investigating Officer did not St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 40 of 103 flash any message on wireless regarding the presence of accused persons near Milan Vatika at Rithala Road, Budh Vihar. Witness has further deposed that apart from him, Inspector Ajay Singh, ASI Pradeep, HC Sunil Dutt, complainant and two informers were in the team who apprehended the accused Sunil and Harvinder. He has also deposed that both the accused were sitting by the side of the Rithala Road near Milan Vatika and tried to run away but they apprehended them after a short chase of 1520 steps. Witness has further deposed that the arrest memos, personal search memos and disclosure statements of the accused were prepared at the place from where the above accused were arrested and the same were prepared by Inspector Ajay Singh but he is unable to tell in whose handwriting these documents were prepared. Witness has denied the suggestion that the above documents were prepared by him in his handwriting while sitting in the Police Station and later on got signed from Inspector Ajay Singh. Witness has further deposed that he did not notice if the accused Sunil was limping by one leg and also did not notice any danda in his hand at that time. According to the witness the ganda nala from where the baseball bat was recovered is about five to ten minutes walking distance from the spot of incident and the baseball bat was lying in the ganda nala in the mud. Witness has further deposed that he was not present at the time when the danda was taken out from the nala though he has seen the dana lying in the nala while standing outside the nala St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 41 of 103 and has voluntarily explained that he had gone to ease himself and therefore he cannot tell how it was taken out from the nala. Witness has further deposed that thereafter they all came to the Police Station after about two to two and a half hours of the arrest of the accused persons but he did not make any separate wapsi/ arrival and has voluntarily explained that the wapsi/ arrival entry was made by the Investigating Officer. According to the witness he signed the seizure memo of the baseball danda at the spot itself after his return as he had gone to ease himself. He has testified that only police officials namely Inspector Ajay Singh, himself, ASI Pradeep and HC Sunil Dutt apart from both the accused persons had gone to recover the baseball danda from the nala. He has also deposed that both the above accused persons were arrested from main Rithala Road near Milan Vatika and the Investigating Officer had given the information to the family members of accused persons through telephone. According to the witness neither him nor any other police official in his knowledge raided the houses of accused persons in the night. He has further deposed that Ajay did not inform him of any other incident of quarrel of deceased Shiv Kumar with anybody prior to this particular incident. The witness has testified that he made no investigations with regard to the motorcycle which was parked near the dead body nor the said motorcycle was seized in his presence. Witness has denied the suggestion that he did not investigate the matter in a free and fair St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 42 of 103 manner or that he was led by the family of the deceased during the investigations. He has also denied the suggestion that accused persons were not arrested in his presence or that they were called to the Police Station at a later stage and falsely implicated in the present case at the instance of the family of the deceased. Witness has further denied the suggestion that the accused persons did not make any disclosure or that the Investigating Officer recorded the same of his own. He has also denied the suggestion that there was no recovery of any baseball bat or that the same was planted upon the accused or that the Investigating Officer did not put any identification mark upon the baseball bat. The witness has admitted that the baseball bat like Ex.P1 are easily available in the market being a sports item. Witness has furhter denied the suggestion that the investigations has been diverted towards the accused in connivance with the family of the deceased only to work out the present case.
(45) PW18 Inspector Ajay Kumar has deposed that on the intervening night of 17/18.03.2013 he was posted in Police Station Vijay Vihar as Inspector ATO and was present in the Police Station and he was informed by SI Sanjeev Kumar to whom the DD No. 5A dated 18.03.2013 was entrusted for further management. Witness has further deposed that on receiving of information, he reached at the spot vide his departure entry for the spot vide DD No. 6A dated 18.03.2013 true copy of which is Ex.PW18/A. According to the witness, SI Sanjeev St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 43 of 103 Kumar alongwith Ct. Jai Singh and Ct. Sher Pal was were found at the spot and some public persons were also present there. He has testified that one person was lying in injured condition near the electric pole in the pool of blood whose name he came to know later on as Shiv Kumar and also checked the injured who was dead. Witness has further deposed that in the meantime one Ajay Giri the brother of the deceased appeared at the spot after which SI Sanjeev made inquiries from him who made his statement which is Ex.PW11/A to SI Sanjeev. The witness has also deposed that thereafter SI Sanjeev made his endorsement on the statement of Ajay Giri vide his endorsement Ex.PW17/B and prepared the rukka and sent to Police Station through constable Sher Pal for registration of the case. He has also deposed that in the meantime he sent the body of Shiv Kumar in the Mortuary of BSA Hospital through Ct. Jai Singh and in the meantime Ct. Sher Pal returned at the spot and handed over the copy of FIR and original rukka to him as he took over the investigation of the case. He has proved having prepared the site plan which is Ex.PW18/B. The witness has also deposed that thereafter he lifted the blood stained concrete, blood sample and sample of the concrete and were kept in separate plastic dibbies and converted the same into pullanda and sealed with the seal of AKS and was taken into possession vide memo Ex.PW17/C. According to him, in the meantime one secret informer came at the spot and informed him that the assailants wanted in this St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 44 of 103 case might be available near Milan Vatika, Budh Vihar PhaseI, Delhi on which he alongwith staff and Ajay Giri went near the Milan Vatika where the secret informer pointed out towards Sunil Kumar and Harvinder Singh who were also identified by Ajay Giri as the assailants. He has also deposed that thereafter police party apprehended both the accused Sunil Kumar and Harvinder Singh and were arrested vide memo Ex.PW17/D and Ex.PW17/E; their personal search was carried out vide memo Ex.PW17/F and Ex.PW17/G and both the accused made their disclosure statements vide Ex.PW17/H and Ex.PW17/I. Witness has further deposed that thereafter both the accused persons lead the police party to Ganda Nala, Budh Vihar from where accused Sunil got recovered a baseball bat on which word "Fanta" was written and one head of the baseball bat was broken. He has also deposed that thereafter he converted the said baseball bat in a pullanda and sealed the same with the seal of AKS and was taken into possession vide memo Ex.PW17/J. He has further deposed that thereafter both the accused persons pointed out the place of incident vide pointing out memo Ex.PW17/K and Ex.PW17/L bearing his signatures at point B the signatures of Ajay Giri could not be obtained as he had to go to his house as his brother Shiv Kumar had dead and their relatives were gathered there. He has testified that thereafter he alongwith staff, both the accused persons and case property came to the Police Station and deposited the case property with MHC (M) and St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 45 of 103 accused were kept in lock up. He has further deposed that thereafter he alongwith SI Sanjeev went to BSA Hospital and prepared the Inquest Proceeding. He has proved having prepared the Brief Facts Ex.PW18/C and having filled Form 25.35(1) (B) after which the body of Shiv Kumar tendered for postmortem and thereafter handed over to the relatives of the deceased. According to the witness, thereafter he alongwith staff came to the Police Station and recorded statement of witnesses. The witness has testified that again on 22.04.2013 he alongwith SI Sanjeev went to BSA Hospital for further investigations where doctor handed over him a viscera box which was sealed with the seal of BSA Hospital alognwith sample seal and another gatta peti which was also sealed with the seal of Dr. BSA Hospital along with sample seal and the same were taken into possession vide memos Ex.PW17/M and Ex.PW17/N. According to the witness at that time doctor also handed over a sample seal which was affixed on both the boxes and thereafter he alongwith SI Sanjeev and the sealed parcels returned to the Police Station and deposited the case property with the MHC(M).
(46) The witness has also deposed that on 29.04.2013 he went to BSA Hospital alongwith the sealed parcel of the weapon of offence where he made request to the concerned doctor and produced the weapon of offence in a sealed condition before the doctor concerned and the concerned doctor examined the weapon of offence and handed St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 46 of 103 over subsequent opinion of the weapon of offence on 02.05.2013 and also handed over the weapon of offence sealed with the seal of Dr. BSA Hospital. He has testified that during investigating he got deposited the exhibits of this case in FSL Rohini on 06.05.2013 and collected the result which he filed later on and photocopy of the FSL result is collectively Ex.PW18/D. He has proved having obtained the Biological Report photocopy of which is Ex.PW18/E. (47) The witness has identified the accused Sunil and Harvinder in the Court and also identified the case property i.e. baseball bat Ex.P1 which was got recovered by accused Sunil; earth concrete material which Ex.P2; blackish concrete material as Ex.P3 and cotton swab having brown stains which is Ex.P4.
(48) In his cross examination by Ld. Defence counsel, witness has deposed that he was in the Police Station when he received the information about the present incident. According to the witness, he left the Police Station at about 12:45 AM along with ASI Pradeep, HC Sunil Dutt and ASI Satbir in a government vehicle i.e. gypsy but he does not recollect the registration number of the said Gypsy. He has also deposed that he reached the spot about 1:001:15 AM where PCR officials were already present there. Witness has further deposed that Crime Team was called by SI Sanjeev Kumar and the Crime Team reached there after he reached the spot. According to the witness, there were about four to five public persons present at the spot. He has also St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 47 of 103 deposed that when he reached the spot the identity of the deceased had already been ascertained as Shiv Kumar and when he reached the spot Sumit Giri was already there whereas Ajay reached slightly late and has voluntarily explained that later when he recorded his supplementary statement Ajay explained to him that he had gone to call a TSR but he could not get it. Witness has further deposed that Crime Team reached the spot at about 2:302:45 AM and when he reached the spot he came to know that the victim had already expired and has voluntarily explained that when he checked him he did not notice any movement and was dead. According to the witness at the spot itself he carried out the cursory inspection of the body to find out the injuries present on the body but did not remove the clothes to carry out the detail inspection and SI Sanjeev was the person who informed him about the identity of the deceased. Witness has further testified that the dead body was shifted to Mortuary of BSA Hospital by him in a government vehicle i.e. TATA 407 but he did not accompany the dead body and has voluntarily explained that he remained at the spot. He has also deposed that in his presence the body was never taken to BSA Hospital by his brother Ajay or Sumit in a TSR and the body was shifted to Mortuary of BSA Hospital at about 3:30 AM. The witness has further deposed that he remained at the spot till about 7:00 AM. He has also testified that Crime Team had left the spot by 3:30 AM and Ct. Jai Singh was sent along with the dead body to the mortuary of BSA St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 48 of 103 Hospital in TATA 407 and he did not disclose the name of the complainant to the Crime Team Incharge. According to the witness he recorded the supplementary statement of Ajay at about 9:00 AM in the morning and when he reached the spot SI Sanjeev was in the process of recording the statement of the complainant. Witness has further deposed that HC Sunil Dutt accompanied him to the spot when they left the Police Station and apart from HC Sunil Dutt, ASI Pradeep and ASI Satbir also accompanied him from the Police Station. According to the witness, he recorded the supplementary statement of Ajay Giri and in the hospital he recorded the statement of Sumit and Ajay regarding identification of dead body. He has testified that he did not record any other statements on the intervening night and has voluntarily explained that the statement of Jai Bhagwan Giri was recorded later. Witness has further deposed that he made no investigations with regard to the motorcycle which was parked near the dead body nor the said motorcycle was seized. Witness has denied the suggestion that the spot where the dead body was lying is a crossing/ Chauraha and has voluntarily explained that it is a place of intersection of two galies. He has also denied the suggestion that this road is more than 30 feet. He is not aware if it is called Ram Madir Road. Witness has admitted that there are residential building near the spot of the incident. He has also admitted that Ct. Jai Singh has not been cited as a witness in the present case. According to the witness, he did not St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 49 of 103 record the secret information in writing nor he informed the senior officers regarding the information. He has testified that he himself along with SI Sanjeev Kumar and his other staff were present in the hospital at the time of postmortem of the deceased. According to the witness, he is not sure about Sunil but Harvinder has a criminal record. He has denied the suggestion that Harvinder has not a criminal record. (49) The witness is unable to tell if the family members of the accused Sunil has a criminal background and the deceased Shiv Kumar was having a criminal background. According to the witness so far as he recollect, the brother of deceased Shiv Kumar namely Sumit has criminal cases against him but he is not sure about his other brothers. The witness has testified that he covered so many aspects regarding the murder of the deceased during his investigations and he did not solely rely upon the statement of Ajay. Witness has further deposed that no other suspect was apprehended or interrogated in connection with the present case and he did not investigate the matter from the angle as to whether the deceased had any enmity with any his family member or brothers or whether they could have killed him. He has also deposed that he did not record the statements of any other public witnesses including the neighbours of the deceased, however, he made preliminary inquiry from them. The witness has further deposed that at the time of apprehending of accused persons namely Harvinder and Sunil apart from himself, HC Sunil Dutt, ASI Pradeep and SI Sanjeev St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 50 of 103 were present. According to him, both the accused persons were apprehended from Milan Vatika situated at main Rithala Road, Budh Vihar, PhaseI. He has admitted that it is quite wide road but he cannot tell the width of the same. According to the witness it was very rare public access at the time of apprehending of the accused and the accused persons were walking on the road. He has further deposed that the accused persons could not see them and were walking normally walking when they (police officials) caught them from behind suddenly. He has further deposed that he started writing the disclosure statements of both the accused persons at about 8:008:15 AM at the spot from where they were arrested which disclosure statements were recorded by HC Sunil Dutt. He is unable to tell in whose handwriting the rukka was recorded since it was sent by SI Sanjeev Kumar and has deposed that the personal search memos and arrest memos of the accused persons were prepared by him in his own handwriting at the spot itself. Witness has further deposed that mobile phones were recovered from the personal search of both the accused but has denied the suggestion that original RC of the motorcycle pertaining to the father of accused Sunil was recovered during his personal search but he has later on added the word 'photocopy' in the personal search memo, though he admits that original driving licence was recovered. Witness has admitted that there are two multistoried building on both sides of the gali of the scene of crime. Witness has St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 51 of 103 further deposed that it might be some difference in nomenclature/ numbers of the shops/ building as the site plan was prepared on the basis of inputs given by local residents and complainant. He has denied the suggestion that he did not prepare the rough site plan while being at the spot and he prepared the same while sitting at the Police Station.
(50) According to the witness, after apprehending the accused persons he along with his team including HC Sunil Dutt, SI Sanjeev and ASI Pradeep directly went to the spot of incident where the pointing out memo were prepared and thereafter they reached ganda nala to effect the recovery of baseball bat at around 9:00 AM. He has testified that the baseball bat was lying inside the nala in the mud and he did not measure the depth of the nala. He has also deposed that the baseball bat was removed from the ganda nala by the accused Sunil himself without help of any rope etc. and by hand only. Witness has admitted that the accused Sunil walks with limping of one leg. He has stated that he himself had accompanied Inspector Manohar Lal at the spot on 28.3.2013 when he visited there for preparing the scaled site plan and it was handed over to him on 29.4.2013. Witness has further deposed that both the accused were medically examined through Ct. Sher Pal after their arrest and he did not place the MLCs of the accused persons in the charge sheet and has voluntarily explained that it is on the police file. On the directions of the Court the MLCs of the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 52 of 103 accused Harvinder and Sunil are taken on the judicial file which MLCs are Ex.PW18/DX1 and Ex.PW18/DX2. Witness has denied the suggestion that both the accused persons were tortured by him in the Police Station on account of which they received various injuries and they were suggested treatment for the same and that is why he did not place the MLCs of the accused on the judicial file along with the charge sheet. Witness has further deposed that he did not obtain the Call Detail Record of the mobile phone of the complainant/ other brothers of the deceased or of the deceased or of the accused nor he investigated the aspect of the various telephone calls which allegedly took place between the deceased and his brothers. According to the witness Jai Bhagwan Giri is a distinct relative of the deceased and the complainant still resides on the given address. He has denied the suggestion that the sample were tampered before sending to the FSL. He has further denied the suggestion that he did not investigate the matter in a free and fair manner or that he was led by the family of the deceased during the investigations. Witness has denied the suggestion that there was no recovery of any baseball bat or that the same was planted upon the accused. According to the witness he did not put any identification mark upon the baseball bat. He has admitted that the baseball bat like Ex.P1 are easily available in the market being a sports item. Witness has denied the suggestion that the investigations has been diverted towards the accused in connivance with the family of St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 53 of 103 the deceased only to work out the present case or that the deceased Shiv Kumar was killed by his own family members/ brothers and later on they shifted the dead body at the spot and falsely implicated the accused persons.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(51) After completion of prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. The accused Harvinder Singh has stated that he is innocent and has been falsely implicated. According to him, he was lifted from his house by the police officials of Police Station Vijay Vihar. He has further stated that he did not make any disclosure statement to the police and his signatures were obtained by the police on blank papers which were later on converted into his disclosure statement and various memos. (52) The accused Sunil @ Sethi has stated that he is innocent and has been falsely implicated. According to him, he was lifted from his house by the police officials of Police Station Vijay Vihar. He has further stated that he did not make any disclosure statement to the police and his signatures were obtained by the police on blank papers which were later on converted into his disclosure statement and various memos.
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 54 of 103 (53) The accused Sunil Kumar has examined himself as his own witness as DW1 (under Section 315 Cr.P.C.) wherein he has placed on record the various PCR Forms which he had obtained on the RTI which PCR Forms are Ex.DW1/A (running into 18 pages). He has not been crossexamined by the Ld. Addl. PP for the State.
ARGUMENTS:
(54) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the memorandum of arguments filed by the parties and the material on record.
(55) According to the prosecution, the deceased Shiv Kumar was the 2nd eldest brother of complainant Ajay Giri (PW11). They were total four brothers namely (elder to younger), Sushil Giri, Shi Kumar Giri, Ajay Giri and Sumit Giri and they had one sister born between Sushil Giri and deceased Shiv Kumar. The four brothers had sold their residential house bearing No. D2/4, Budh Vihar, Phase1, Delhi around three months prior to the incident to the tune of Rs.33,50,000/ and divided the same equally between them. At the time of the incident the deceased Shiv Kumar and youngest brother Sumit Giri (PW15) were residing together in house bearing No. D2/9, Second Floor, Budh Vihar PhaseI, Delhi which was owned by their respective wives whereas other two brothers namely Sushil Giri and Ajay Giri St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 55 of 103 were residing at K1/9, Budh Vihar PhaseI, Delhi. (56) According to the prosecution Ajay Giri (PW11), brother of the deceased Shiv Kumar got his statement recorded with the police (Ex.PW11/A) and as per his version in the night of 17th /18th March, 2013, he was walking on the road along with his dog at about 10/10.15 when he saw his brother Shiv Kumar (since deceased) standing with the accused persons who were eating and drinking at the rehri of Raju ande wala. After some time, he went to his house along with his dog and at about 11.40 PM, he received a missed call from the mobile of his brother shiv Kumar and thereafter, he came on terrace and noticed that accused Harvinder had caught hold of his brother Shiv Kumar and accused Rakesh @ Andy was slapping him whereas accused Sunil @ Sethi was giving danda blows to his brother Shiv Kumar. Ajay Giri immediately came down and on seeing him, all accused persons ran away from the spot. He noticed blood oozing out from the nose and mouth of his brother Shiv Kumar and immediately rushed to call his brother Sumit Giri (PW15) and thereafter, they both shifted their brother Shiv Kumar to BSA Hospital where he was declared 'brought dead' by the doctors.
(57) In the meantime, one Jai Bhagwan Giri (PW12) also made a call to PRC on 100 numbers from his Mobile No. 8750135123 at about 12.30 am which was recorded by W/Ct. Anju (PW10) as 'Kuchh Aadmiyon ne ek aadmi ko buri tarah pita hai" vide PCR Form Ex St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 56 of 103 PW10/A. This information came to be recorded by Duty Officer Ct.
Balak Ram (PW4) at 12.34 am in PS: Vijay Vihar vide DD No. 5A as "Budh Vihar K1 H. No. 8 ke paas jhagra aur injured". This DD No. 5A was forwarded to SI Sanjeev Kumar (PW17); the First IO who reached at the spot with Ct. Jai Singh where he found PCR officials namely HC Jitender along with staff. He found a person lying in the gali who was dead and his name was revealed as Shiv Kumar. Senior officers were informed and Crime Team was called at the spot by SI Sanjeev Kumar. In the mean time, Ajay Giri (PW11) appeared at the spot and recorded his Statement (Ex.PW11/A) and thereafter, made endorsement on the above statement of Ajay Giri and prepared a rukka and sent it to the Police Station Vijay Vihar through Ct. Sherpal (PW9) upon which FIR No. 144 of 2013 (ExPW4/A) came to be registered by Ct. Balak Ram (PW4). Thereafter, the investigation was taken over by ATO Insp. Ajay Kumar (PW18). Blood stains were lifted and sealed and dead body was sent to mortuary of BSA Hospital where postmortem was conducted by Vijay Dhankar (PW19) vide postmortem report Ex.PW19/A. (58) Subsequently, in the morning of 18th March, 2013 on receiving a secret information, accused Harvinder Singh and Sunil @ Sethi were arrested near Milan Vatika, Budh Vihar PhaseI, Delhi and their arrest memos were prepared and personal search were also conducted. Both the accused made disclosure statements and St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 57 of 103 thereafter, accused Sunil @ Sethi got recovered a broken base ball bat on which word 'FANTA' was written which was also sealed and thereafter, pointing out memos were prepared and rough as well as scaled site plan were also prepared subsequently. Subsequent opinion was also obtained on 22.04.2013 regarding the Baseball Bat qua the injuries.
(59) In so far the motive of offence is concerned, it is the case of the prosecution that earlier, there was a quarrel between deceased Shiv Kumar and accused Harvinder Singh in which Shiv Kumar had given a beating to Harvinder Singh upon which FIR No. 349 of 2011 dated 02.09.2011 under Sections 325/323/341/34 was registered against deceased Shiv Kumar @ Shibbu on the complaint of accused Harvinder and thereafter, Harvinder had threatened Shiv Kumar many times. Other two accused were friend of accused Harvinder and thus, they joined him in the crime.
(60) On the other hand according to the defence, the prosecution story is false and fabricated not only on facts but even on probabilities and prosecution has failed to establish its case. It is argued that there are various dent and cavities in the prosecution story and the chain is absolutely incomplete and broken. The most vital part of the prosecution story i.e. medical evidence is completely belying the story presented by the prosecution and rather establishes the defence of the accused that the deceased Shiv Kumar was killed by his own brothers St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 58 of 103 particularly by PW15 Sumit Giri somewhere else and subsequently his dead body was thrown at the spot and accused person have been implicated on a false story fabricated by Sumit Giri himself. The main plank of the defence arguments are culled out as under. (61) Firstly that the antecedents of the deceased and his brothers are not clean and they are themselves having a criminal background. Secondly the PCR calls/DD entries (Ex.DW1/A) which were made by the mobile phone of deceased Shiv Kumar or his brother Sumit Giri and all the calls pertain to the addresses of the deceased and/or his brothers regarding quarrel at their home which clearly establish that there were regular criminal offences being committed by the deceased and/or his brothers at their addresses. Thirdly the accused Sunil @ Sethi has clean antecedents. Fourthly assuming the prosecution version as correct it is a Motiveless Murder. Fifthly the weapon of offence i.e. broken Baseball Bat does not belong to accused Sunil @ Sethi and even otherwise the recovery is bad. Sixthly the Medical Evidence does not incriminate the accused. Seventhly that the arrest is fake and improbable. Eighthly two different versions emerge on the aspect of movement/ shifting of the body of the deceased. Ninethly that there is a delay in PCR Call/ Information to the Police. Lastly that the material witnesses i.e. wife of the deceased and his other family members have either not been examined or have St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 59 of 103 resiled from their earlier versions like Raj Kumar and those examined as not credible or trustworthy.
(62) In this regard it is also argued by the Ld. Defence Counsel that most of the police and public witnesses examined by the prosecution are not credible and reliable being false, planted and their depositions are contradictory and thus, not admissible and reliable. He has pointed out that in so far as PW1 Inspector Manohar Lal is concerned, he claimed to have prepare the scaled site plan which is Ex.PW1/1 in which he mentioned the wrong addresses and even the name of the road where scene of crime was allegedly situated has been wrongly mentioned as Telephone Road which is in fact known as Ram Mandir Road and said road is registered in the record of MCD by Ram Mandir Road and hence it is evident and clear that Inspector Manohar Lal (PW1) had never visited to the scene of crime and he prepared the sketched site plan as per the instructions of the IO while sitting in the office.
(63) In so far as ASI Ajeet Singh (PW2) who had allegedly joined the investigation as an incharge of Mobile Crime Team Outer District is concerned, Ld. Counsel has pointed out that according to this witness he had reached at the spot at about 2:10 A:M where SI Sanjeev (PW17) with Inspector Ajay Kumar Singh (PW18) was present there but has not mentioned the name of the complainant at column No. 4 in his scene of crime visit report which is ExPW2/A prepared at St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 60 of 103 the spot and he admitted in the cross examination that complainant was not at the spot from 2:10 A:M till 3:10 AM when Crime Team left the spot and has also admitted that the word "dande ki" has been added later on in column 14 of the report. It is submitted by the Ld. Counsel that it is therefore clear that he was not aware about the manner in which the murder was committed and also about the name of the complainant when he allegedly inspected the scene of crime and he manipulated his crime team report at the instance of IO after cooking up the story of committing murder by the accused person with Danda blows which substantiates the defence of the accused that he had been falsely implicated in the present case.
(64) It is argued by the Ld. Defence Counsel that in so far as Ct. Kamal (PW3) is concerned, the said witness has admitted that no fingerprint expert was called to the spot by the crime team which ought to have been called for fair investigation and no exhibits were collected by the Crime Team or the IO in the presence of the Crime Team. Ld. Counsel has pointed out that this witness had specifically admitted that there were public persons present at the spot when he took the photographs of scene of crime and further admits that he took the photographs after the scene of crime had been manipulated which substantiates the defence of the accused that he had been falsely implicated in the present case.
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 61 of 103 (65) It is further pointed out by the Ld. Defence Counsel that PW8 HC Jitender who was the incharge of the PCR and claimed to reach at the spot initially after receiving PCR Call from Police Control Room had deposed in his cross examination that PAN Card and AADHAR card were recovered from the purse of the deceased and his identity was established from those Identity Proofs. Further, a cursory glance upon the PCR form Ex.PW6/A shows that it has been specifically mentioned that the identity of the deceased was not known till 2:00 AM and the deceased was identified as Shiv Kumar S/o Sant Giri R/o D 2/4, Budh Vihar Phase 1 with the help of PAN card and AADHAR card which were found in the purse of the deceased which establishes the absence of his brother at the spot. (66) Further, in so far as HC Sunil Dutt (PW10) is concerned, it is submitted that he had actively participated in the Investigation but IO had concealed the same in the charge sheet and had shown him as formal witness who merely collected the samples in sealed pulandas from the Malkhana and had deposited the samples in FSL but his role had been mentioned at various places in the charge sheet and it was found by the Court that he had actively participated in the so called investigation carried out by the Investigating Officer and was directed to be examined in the court. It is further argued out that if the charge sheet is taken on its face value then PW10 had gone to the spot with Inspector Ajay Singh who after receiving information of the murder St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 62 of 103 had made a departure entry recorded as DD No 6A at about 12:45 AM on 18.03.2013 and he was also the part of the police team which allegedly apprehended the accused person and disclosure statements of the accused persons were allegedly recorded in his presence but HC Sunil Dutt had in his examination in chief recorded in the court deposed that he was the beat officer of the area where crime had taken place and he got the information of the murder from the beat officer on his phone while he was in the area on his duty and he reached the spot at his own where he found SI Sanjeev, Inspector Ajay Singh and other police staff. It is argued that in his cross examination HC Sunil Dutt (PW10) has stated that both the accused were interrogated by the IO in his presence and their disclosure statements were also recorded in his presence but strangely he is not shown as witness by the IO and name of SI Sanjiv Kumar is only mentioned in the arrest memo, personal search memo, disclosure statement, seizure memo and pointing out memo etc. The said witness also claimed that the recovery of baseball bat (Danda) Ex.P1 from Ganda Nala had taken place in his presence at the instance of accused Sunil but he is not shown as witness of recovery which suggest that fair investigation was not conducted by the IO and had falsely implicated the accused in the present case. (67) It is argued by the Ld. Defence Counsel that in so far as Ajay Giri (PW11) the Complainant is concerned, he has in his examinationinchief deposed that after seeing his brother injured, he St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 63 of 103 did not call police or ambulance or anybody else despite having two mobile phones as mention in the FIR itself and he went to call his brother Sumit who resides nearby and to bring TSR to remove his brother to hospital. He further deposed that in between 12:0012:30 A:M he came to the spot with his brother Sumit Giri and shifted their brother (deceased) to BSA Hospital in TSR where he declared brought dead and he also stated in cross examination that he had reached the hospital first with the deceased and police followed them to the hospital and reached their later whereas the prosecution case is altogether different from the version of the complainant since as per prosecution case the body of the deceased was shifted to mortuary by the IO in TATA 407 in the custody of Ct. Jai Singh at about 3:30 A:M. (68) In his examination by the Ld. Defence Counsel Ajay Giri has stated that when he saw his brother with the accused person near the rehri of Raju ande wala (PW16) while he was walking with his dog during the night hours at about 10:30 PM but he did not call out to his brother or take him away from the accused which is despite the fact that there was a previous dispute with the accused. He has also admitted that there are two shops at the corner of the lane where the body of deceased was found and has also admitted that at the corner of the lane there is a five storied house and the shopkeeper of K1/8 resides on the first floor on top of the shop. He has also stated that when he saw his brother (deceased) being beaten he went to save him St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 64 of 103 but did not raise any alarm. It is argued that this witness did not inform the police/ PCR/ Ambulance any time during the present incident and he was not aware as to who made a call to PCR and also admits in the cross examination that no treatment was given to his brother. Ld. Defence Counsel has also highlighted the cross examination of this witness wherein he had stated that he has no idea but Shiv Kumar (deceased) had a Jhagra previously when he had received injuries on his head which wound was stitched but has denied being involved in a criminal case or that on account of the fact that they were annoyed of the behavior of Shiv Kumar and therefore he along with his brother Sumit had killed the deceased and threw the dead body in the lane and diverted the blame on the accused person. The Ld. Defence Counsel has pointed out that the certified copies of the PCR Forms obtained by the accused Sunil under the Right to Information Act which has been duly filed and exhibited by him in his evidence clearly reflects that the witness in fact had enmity with the deceased and he is habitual defaulter who had repeatedly called the PCR at 100 number even from his own phone numbers i.e. 9873114329, 9212991606 regarding Jhagras at his home i.e. D2/4 Budh Vihar Phase 1, Delhi as well as at his work place i.e. Lakshmi Cable Teen Murti Road Budh Vihar Delhi.
(69) Ld. Defence Counsel has also relied upon the testimony of Jai Bhagwan Giri (PW12) who is close relative of the deceased St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 65 of 103 claimed himself to returning his home after dropping his relatives at bus stand in the night hours at about 12.2012.22 AM when he noticed that both Ajay Giri and Sumit Giri were weeping and he made a call at 100 number around 12:34 AM and had further deposed that within 2025 minutes of his call, PCR came at the spot and took the body of deceased Shiv Kumar in the hospital with both PW11 Ajay Giri and PW15 Sumit Giri. It is pointed out by the Ld. Counsel that this version of PW12 is altogether different from other prosecution witnesses since he has been claiming that body of the deceased was removed to the hospital by the PCR at about 1:00 AM. It is also submitted that in so far as Sumit Giri (PW15) the other brother of the deceased is concerned, he has been shown as formal witness and even his statement under section 161 Cr.P.C was not recorded by the IO during investigations despite the fact that he was a crucial witness. He has pointed out that Sumit has improved upon the prosecution version in the court but if we consider his statement then he is only a witness of hearsay. He has admitted that he has criminal background and the same substantiates the defence of the accused that deceased Shiv Kumar might have killed by his brothers who had disposed off their ancestral/joint property and did not want to give the share to the deceased Shiv Kumar who himself was heavy drinker and drug addict having criminal background. Ld. Defence Counsel has pointed out that in so far as Rajkumar (PW16) is concerned, he has turned hostile and St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 66 of 103 has not supported the case of prosecution and has even denied the suggestion put to him by Ld. Public Prosecutor after declaring him hostile.
(70) Coming next to the official police witnesses, the Ld. Defence Counsel has pointed out the contradictions in their testimonies which according to him are material. It is pointed out that PW17 SI Sanjeev Kumar has in his examination in chief stated that the police party comprising himself, IO Ajay Kumar Singh, HC Sunil Dutt and other police Staff in the presence of complainant Ajay and at the instance of one secret informer had apprehended the accused person near Milan Vatika Main Rithala Road Budh Vihar Phase I Delhi whereas HC Sunil Dutt (PW10) has deposed in his examinationin chief that at about 7:00 A:M when he reached at Budh Vihar Rithala Road he met Inspector Ajay Singh IO who was interrogating the accused person and had also handed over one of the accused to him which is a different version. Further, in his crossexamination SI Sanjeev Kumar (PW17) has admitted that PCR officials as well as 1520 public person were present at the spot when he reached the scene of crime but he did not find any relative of the deceased including complainant who allegedly reached at the spot within 1012 minutes of his arrival. Ld. Counsel has pointed out that this witness has also admitted in the cross examination that on inspection of the body of the deceased, he found PAN card and AADHAR card from which identity St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 67 of 103 of the deceased was established but he had not taken the same into possession but instead handed over the same to the brother of the deceased. It is also pointed that in his cross examination this witness had clarified that the body of the deceased was shifted to the Mortuary of BSA Hospital by Inspector Ajay Singh in a Government Vehicle i.e. TATA 407 and in his presence the body was never taken to the BSA Hospital by his brother Ajay or Sumit in a TSR whereas on the other hand Ajay Giri (PW11) had stated in his examinationinchief that he went to call his brother Sumit and to arrange a TSR to shift his brother to hospital and has further deposed that between 12.0012.30 AM, he came at the spot with his brother Sumit and shifted their brother Shiv Kumar (deceased) to BSA Hospital in a TSR where he was declared brought dead. Further, in his crossexamination SI Sanjeev Kumar has deposed that he had given the name of the complainant to the Crime Team Incharge whereas in the Crime Team Report name of the complaint is missing and even the Crime Team Incharge (PW2) had clarified that no complainant was present when he reached at the spot. It is pointed out that the witness has also admitted that the spot where the dead body was lying is a crossing/ Chauraha. Ld. Counsel has further pointed out that the IO had shown SI Sanjeev Kumar as the only witness to the recovery of baseball bat (Danda) from Ganda Nala at the instance of accused Sunil whereas SI Sanjeev Kumar had specifically stated in the cross examination that he was not present at St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 68 of 103 the time when the danda was taken out from the nala as he had gone to ease himself and therefore he cannot tell how it was taken out from the nala. Also, according to SI Sanjeev Kumar no raid was conducted in the houses of the accused person to apprehend them during the intervening night of 1718/03/2013 and complainant Ajay did not inform him about any other incident of quarrel of deceased Shiv Kumar with anybody prior to this particular incident. Further, in so far as Inspector Ajay Kumar Singh (PW18) is concerned, it is pointed out by the Ld. Defence Counsel that he had stated in the cross examination that he left the Police Station at about 12:45 A: M along with ASI Pradeep, HC Sunil Dutt and ASI Satbir in a Govt. vehicle i.e. gypsy whereas HC Sunil Dutt (PW10) had deposed that he visited to the spot at his own being the beat officer while he was in the area on his duty. Further, in his examinationinchief Inspector Ajay Kumar Singh had stated that he apprehended the accused persons on the identification and in the presence of complainant Ajay whereas Complainant Ajay has nowhere stated that he was present and identified the accused person when they were allegedly apprehended by the Police Team from Rithala Road Budh Vihar Phase 1 near Milan Vatika on 18/03/2013. Further, Inspector Ajay Kumar Singh (PW18) has also deposed in his examinationinchief that accused Sunil got recovered a Baseball Bat on which word "Fanta" was written whereas SI Sanjeev Kumar (PW17) has deposed in the court that word "Pepsi" St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 69 of 103 was written on the baseball bat recovered from the Ganda Nala at the instance of accused Sunil. Also, in his crossexamination Inspector Ajay Kumar Singh (PW18) has stated in the cross examination that the body of the deceased was shifted to the Mortuary of the BSA Hospital by him in a Government vehicle i.e TATA 407 but he did not accompany the dead body and remained at the spot. He has further stated that in his presence, the body of the deceased was never taken to the BSA Hospital by Ajay or by Sumit in a TSR and it was shifted in the mortuary by him at about 3:30 AM in the custody of Ct. Jai Singh whereas on the other hand Ajay Giri (PW11) had in his examination inchief stated that he had gone to call his brother Sumit and to arrange for a TSR to shift his brother to hospital and for further deposed that in between 12.0012.30 AM, he came at the spot with his brother Sumit and they shifted their brother Shiv Kumar (deceased) to BSA Hospital in TSR where he was declared brought dead. Ld. Counsel has also pointed out that the Inspector Ajay Kumar Singh (PW17) has admitted in the cross examination that there are residential buildings near the spot of incident and it is place of intersection of two galis and further admitted that the so called secret information about the presence of both the accused person near Milan Vatika Main Rithala Road Budh Vihar Phase 1 was neither recorded by him in writing nor he informed about the same to the senior officers making his version doubtful. It is pointed out that this witness has admitted that the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 70 of 103 deceased Shiv Kumar was having a criminal background and his brother Sumit is also having criminal background which fact the witness Sumit (PW15) has also admitted in his cross examination. It is further pointed out by the Ld. Defence Counsel that no other suspect was apprehended or interrogated by him in connection with the present case during the investigation and also that he did not investigate the matter from the angle as to whether the deceased had any enmity with his family members/ brothers or if they could have killed him. It is argued that according to this witness the Baseball Bat was lying inside the Nala in the mud and it was taken out the accused Sunil himself without any support whatsoever but this is not possible as the Baseball Bat if any lying in Ganda Nala cannot be taken without any outside support and this version being not probable creates great suspicion and doubt over the theory of police that baseball bat was recovered from Nala by the accused. There is no witness of recovery of Danda from Nala as SI Sanjeev (PW17) has stated that he was not present when the Danda was taken out from the Nala as he had gone away to ease himself.
(71) Ld. Counsel has also argued that both the accused were subjected to torture by the police and after their arrest were medically examined and their MLC's were prepared but the Investigating Officer did not place the same on the Charge sheet and had placed the same on the judicial file only on the directions of the Court during the time of St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 71 of 103 his cross examination when specific question with respect to preparation of MLC's of the accused was put to him. It is pointed out that it is clear from the contents of MLC that accused Sunil was tortured by the police officials in their custody to such an extent that he had received severe injuries and even Xray of hand was also suggested by the doctor who inspected accused person and due to that MLC's of accused were not filed by the IO in the charge sheet. (72) Ld. Counsel has pointed out that Inspector Ajay Kumar Singh (PW17) has also admitted in his cross examination that he did not obtain the call details record (CDR) of the mobile phone of the complainant who is the other brother of the deceased or of the deceased or of the accused. He also further admitted that he did not investigate the aspect of various telephone calls which allegedly took place between the deceased and his brother. In this regard, it is pointed out that PW18 Investigating Officer Ajay Kumar Singh should have investigated the matter after comparing the Call details record of various phone numbers as mentioned in the FIR to prove the case of prosecution.
FINDINGS:
(73) On the basis of the material on record and the submissions made before me. as herein above, my findings are as under:
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 72 of 103 Medical Evidence:
(74) The case of the prosecution is that all the accused Harvinder Singh, Sunil Kumar and the PO accused Rakesh @ Andy in furtherance of their common intention thrashed the victim Shiv Kumar with a baseball bat and caused fatal injuries upon him thereby causing his death. In this regard the prosecution is placing its reliance on the testimony of Autopsy Surgeon Dr. Vijay Dhankar (PW19) and the reports proved by him.
(75) I have gone through the testimony of Dr. Vijay Dhankar (PW19) who proved that on 18.03.2013 he conducted postmortem on the body of Shiv Kumar S/o Sant Giri vide postmortem report Ex.PW19/A according to which the following injuries were found on his body:
1. Stitched wound 4cm long present over the upper part of occipital region of head,
2. Laceration 2cm x 0.5cm present over the left side of upper lip.
3. Contusion 7cm x 2 cm horizontally placed present over the upper part of the left side of the face
4. Contusion 8cm x 2cm, horizontally placed parallel and 2cm below injury no.3 present over the middle part of left side of face.
5. Contusion 8cm x 2cm horizontally placed parallel and 2cm below injury no.4 present over the lower part of left side of face. St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 73 of 103
6. Rail road type contusion 9cm x 3cm with a gap of 1.2cm between the two contusions present over the left upper outer part of front of chest.
7. Abrasion 3cm x 2cm present over the front of left knee.
(76) The witness has proved that on internal examination Commuted Fracture of base of skull was present in the posterior cranial fossa; thick layer subarachnoid hemorrhage was present all over the brain more prominent over the base of brain; brain parenchyma was edematous with flattening of gyri and obliteration or sulci, Uncal grooving was present and all internal organs was congested. He has proved having opined that the cause of death was cranio cerebral damage consequent to blunt force injury to the head, all injuries were ante mortem in nature, fresh at the time of death and caused by blunt force and the external injuries over the head and face together with the internal injuries were sufficient to cause death of in the ordinary course of nature.
(77) The witness Dr. Vijay Dhankar (PW19) has in his examination in chief had also proved that subsequently on 02.05.2013 he examined one baseball bat received from Inspector Ajay Kumar Singh of Police Station Vijay Vihar and after examination he opined that the injuries as mentioned in the Postmortem Report could be caused by the baseball bat examined by him which subsequent St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 74 of 103 opinion is Ex.PW19/B. He has also proved having prepared the sketch of the baseball bat, total length of which baseball bat was 65 cms, width of the one end was 5cm and the width of another end was 3.2cm, which end was broken and the baseball bat was mud stained. He has proved his subsequent opinion with sketch of the baseball bat which is Ex.PW19/B. (78) In his cross examination by Ld. Defence Counsel, the Autopsy Surgeon has specifically stated that the injury present on the occipital region was a fresh injury but he cannot tell about the exact period. A specific Court Question was put to the witness who was asked to inform whether it was is it possible that the said injury could be a few hour or even one day old, to which the witness replied in affirmative and has explained that it could be from a few hours from the time of incident i.e. at the time of death or even six hours earlier to the same. He has admitted that he did not examine injury no.1 properly so as to ascertain the exact age/ time of injury and has explained that he was not asked by the Investigating Officer to do so and he can only tell that this old stitched injury was less then six hours old. Witness has admitted that the age of the injury can be told by examining the nature and texture of the skin around the injury and of the stitches. He has further admitted that the injury no. 2 to 7 were possible on account of a fall on the hard, rough surface and St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 75 of 103 also that if injury no.1 had not been inflicted the injuries no. 2 to 7 collectively were not Sufficient to Cause Death. The Autopsy Surgeon has also admitted that it is only injury no.1 which was sufficient to cause death in ordinary course of nature. He is not aware from where the injury no.1 was got sutured/ stitched and has explained that there was no medical record placed before him to show that it was got treated from the BSA Hospital. Witness has also admitted that injury no.6 could be possible by falling upon a linear hard surface. He has also stated that his finding with regard to the weapon of offence is not a conclusive finding but only an approximate finding and has explained that it was possible with this bat or a similar kind of weapon and has further clarified that it could be possible on account of fall on hard surface which was the edge of a hard surface like stairs case, footpath, table etc. (79) Here, I may observe that the MLC of the BSA Hospital where the deceased Shiv Kumar was taken and was declared dead, has not been placed on record and it appears that it has been deliberately concealed/ withheld from the Court since on the one hand it is the case of the complainant who is the brother of the deceased is that he was the one who had shifted the deceased to the Hospital in the TSR and the police followed him later on wheres on the other hand it is the case of the prosecution and also proved by the witnesses who are police officers that they had reached the spot in time and Ajay the brother of St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 76 of 103 the deceased who had gone to the spot could not find a TSR and therefore it was the police who had shifted the deceased to the hospital and not Ajay the brother of the deceased. There is a very serious contradiction because the various PCR Forms placed on record which show that there were repeated telephone calls regarding a quarrel at the spot where two brothers were involved and which reflect that the injured had been admitted in the hospital by the PCR in a conscious condition. It appears that actually two incidents of quarrel had taken place on the same day within quick succession in one family first when the injured Shiv Kumar was quarreling with his brother and was treated for Injury No.1 and soon discharged after which there another incident of quarrel took place in which he had expired. The possibility of the earlier MLC having been deliberately withheld from the Court in order to conceal the first incident wherein the deceased had suffered the injury No.1 i.e. old stitched wound so that the blame could be diverted on someone else, cannot be ruled out. Further, the prosecution has miserably failed to explain as to how the stitched wound was present on the head of the deceased i.e. injury No.1 which was the only fatal injury on the body of the deceased and since that injury was apparently not caused by the accused persons and therefore the possibility of the deceased being attacked and assaulted by some other persons by hitting him on his head at some other spot and having obtained a head injury which was got stitched cannot be ruled out. I hereby hold that the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 77 of 103 medical evidence is not compatible to the prosecution version. Forensic Evidence:
(80) In so far as the Forensic Evidence is concerned, it does not help the prosecution in any manner since the Biological/ Serological Reports Ex.PW18/D (which are not disputed by the accused) only establish that the blood group of the deceased was 'O' which was found on his shirt (Ex.1a) and gauze clothe piece (Ex.2). Further, the Chemical Analysis Report which is Ex.PW18/E (which is not disputed by the accused) does not show the presence of any metallic poisons, ethyl alcohol, cyanide, phosphide, alkaloids, barbiturates tranquilizers and pesticides in the viscera of the deceased.
Arrest of the Accused Recovery of Weapon of Offence:
(81) The case of the prosecution is that soon after the incident when the police reached the spot, brother of the deceased Shiv Kumar namely Ajay Giri met them and informed that he was an eye witness to the incident and had disclosed the names of the accused Harvinder Singh and Sunil as the authors of the crime and those who had assaulted his brother Shiv Kumar. According to the prosecution, soon thereafter Shiv Kumar was taken to the hospital where he was declared dead after which the police went in search of the accused. On the next day morning pursuant to a secret information the police apprehended St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 78 of 103 both the accused Harvinder Singh and Sunil whereas the brother of the deceased/ complainant Ajay Giri identified them. Pursuant to their apprehension/ arrest and interrogation both the accused led the police party to Ganda Nala from where the accused Sunil got recovered a Baseball Bat.
(82) It is vehemently argued by the Ld. Defence Counsel that the prosecution version regarding arrest of the accused Sunil @ Sethi and Harvinder is absolutely false and destroying in itself. It is submitted that the Milan Vatika from where the accused persons have allegedly been arrested is hardly 500 meters away from the spot where the dead body was found and it is highly improbable that a person after committing murder would hide himself in the same area particularly he has been seen and recognized by the brother of the deceased and he is well known and easily identifiable by the people of that area being the resident of the same vicinity since childhood. Further, Ajay Giri (PW11) who has been said to have identified the accused is not the signatory of arrest memos and disclosures and thus, it is not possible that the accused were arrested in the manner as claimed by the prosecution and were rather picked up from their houses and brutally tortured as evident from their medical examination which shows injury mark/ assault on their person.
(83) Ld. Defence Counsel has also argued that the case of the prosecution that the broken Baseball Bat which the accused Sunil @ St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 79 of 103 Sethi was using to support his limping leg, was the weapon of offence and in this regard it is necessary to note that the accused Sunil never took any help of any stick or bat to support his limping leg even while walking in the Court during the trial. He has pointed out that even otherwise, the length of this Baseball Bat is around 65 cms (as deposed by doctor PW19) which is not sufficient to support a tall adult like the accused Sunil @ Sethi with a height of around 6 feet. It is submitted by the Ld. Defence Counsel that this recovery pursuant to the disclosure statement is inadmissible in evidence in as much as the said recovery has in fact been planted upon the accused only to workout the present case and even otherwise going by the case of the prosecution the recovery of this Baseball Bat is unbelievable. (84) I have considered the rival contentions and I may observe that as per the case of the prosecution the weapon of offence i.e. Baseball Bat was recovered from a deep sewer/ Nala situated in Budh Vihar. Under the given circumstances it would not be possible for an ordinary person to enter the said sewer / Nala and only a trained expert or men from fire brigade with technical assistance can enter into the same, which is not the case.
(85) Even otherwise, the attesting witness to the seizure memo of the Baseball Bat namely SI Sanjeev (PW17) has not supported the recovery of the same and has deposed that the recovery of this bat was not made in his present since at that time he had gone to ease himself St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 80 of 103 and thereafter has signed the seizure memo ExPW17/J on the asking of Inspector Ajay Kumar (Investigating Officer). In this background, the recovery of the Baseball Bat cannot be believed. Further, even the doctor PW19 has not conclusively confirmed that the injuries were caused by this Baseball Bat and has only given a possibility that the same may have been caused by some other similar object and has also alternatively stated that it could even be possible by falling from stairs, table etc. (86) Even otherwise, the alleged recovery of the Baseball Bat is from an open area i.e. Ganda Nala/ sewer. In this regard the Hon'ble Supreme Court in the case of Trimbak Vs. State of Madhya Pradesh reported in AIR 1954 SC 39 observed that:
"........ The fact of recovery does not conclusively prove that the accused was in possession of these articles when the fields from where the recovery was made, was an open one and accessible to all and sundry. This fact of recovery is compatible with the circumstance of somebody else having placed the articles there. From the bare fact that the accused was residing in the complainant's village, his knowledge that the ornaments were stolen property, cannot legitimately be concluded. Therefore, the prosecution has failed to prove that the stolen property was in possession of the accused and that he had the knowledge that they were stolen articles...."
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 81 of 103 (87) Further, in the case of Mani Vs. State of Tamil Nadu reported in 2008 AIR (SC) 1021 it has been held that:
"....Where the discovery of the relevant articles have been made from the open ground though under the bushes, that too after more than 10 days of the incident, such discovery would be without any credence...."
(88) Applying the settled principles of law to the facts of the present case I may observe that the alleged recovery has been got effected from a place which is accessible to all public and within the view of the public. Further, even the Medical Evidence does not support the prosecution version regarding the injuries have been caused by this Baseball Bat. Rather, the Autopsy Surgeon Dr. Vijay Dhankar (PW19) has very specifically stated in the Court Firstly that the Injuries No. 2 to 7 were not sufficient in ordinary course of nature to cause death and Secondly that the fatal injury i.e. Injury No.1 was inflicted much earlier in time and the injuries inflicted later i.e. Injuries No. 2 to 7 could have been possible on account of fall on the edge of a hard surface.
(89) This being the background, I find merit in the objection raised by the Ld. Defence Counsel particularly in view of my detailed discussion with regard to the credibility of the eye witnesses who are the brothers of the deceased and the inconsistency observed in the record of the PCR which is not compatible to the Ocular Evidence so St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 82 of 103 much so that even at the time of alleged recovery of the Baseball Bat no independent public witness has been joined. I therefore hold that the arrest of the accused Havinder Singh and Sunil and recovery of weapon of offence i.e. Baseball Bat has not been proved beyond reasonable doubt.
Ocular Evidence:
(90) Ocular evidence/eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely prejudged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be credit worthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(91) The case of the prosecution is that on 17.3.2013 at about 11:45 PM at Gali near House No. K1/8, Budh Vihar, PhaseI, near St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 83 of 103 electricity police no. 5197/20 the accused Harvinder Singh and Sunil Kumar @ Sethi along with their coaccused Rakesh @ Andy (Proclaimed Offender) in furtherance of their common intention committed murder of Shiv Kumar by giving baseball bat blows upon his head intentionally to case of his death. In this regard the prosecution is placing its reliance on the testimonies of the complainant/ alleged eye Ajay Giri (PW11), Jai Bhagwan Giri (PW12) and Raj Kumar @ Raju (PW16).
(92) Since the prosecution is placing its heavy reliance on the testimonies of Ajay Giri (PW11), Jai Bhagwan Giri (PW12) and Raj Kumar @ Raju (PW16), it is therefore necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 84 of 103 should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(93) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 85 of 103 there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(94) Applying the settled principles of law to the facts of the present case, coming first to the testimony of Ajay Giri (PW11) who is the brother of the deceased and the complainant in the present case, the relevant portion of his testimony is as under:
"...... We are four brothers and I was in the profession of cable networking. Initially we were living in D2/4, Budh Vihar, PhaseI, which we had sold three months prior to the date of incident. We had equally distributed the sale amount of said plot by my brother i.e. myself, Sushil, Shiv Kumar Giri and Sumit Giri and thereafter we started living separately.
My brother Sumit and Shiv Kumar since deceased purchased a floor of 50 yards at D2/9, Second floor, Budh Vihar, Delhi.
About 1 - 1 ½ years prior to the incident a quarrel had been taken place with my brother Shiv Kumar (since deceased) and accused Harvinder present in the court today (correctly identified). Accused had made a complaint against my brother in PS Vijay Vihar. On this aspect accused Harvinder had a grudge against my brother Shiv Kumar and he had given beating to Harvinder.
Deceased Shiv Kumar was my elder brother St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 86 of 103 and I had warned him to be careful from accused Harvinder as he can go to any extent to take the revenge.
On 17.03.2013 at about 10.0010.30PM I was taking a walk with my dog on the road situated adjoining to my residence. At that time I noticed accused Harvinder and Sunil @ Sethi both present in the court today (correctly Identified), Rakesh @ Andy (since not arrested) and my brother Shiv Kumar were eating egg on a rehri of one Raju. After some time of taking a walk I went to my house along with my dog.
At about 11.40PM I received a missed call from the mobile of my brother Shiv Kumar. I came on terrace and noticed that accused Harvinder, Sunil @ Sethi and accused Rakesh @ Andy were beating my brother. I noticed that accused Harvinder caught hold of my brother and accused Rakesh @ Handi were slapping and accused Sunil @ Sethi was giving danda blows to my brother. On seeing this I immediately came down and came out from my house and on seeing me all the accused persons ran away from the spot. I saw my brother, blood was oozing from his nose and mouth and he was lying in a pool of blood.
Thereafter I tried to shake my brother Shiv Kumar by calling out his name but he was not responding. Thereafter I went to call my brother Sumit and to arrange a TSR so that he can shift his brother to the hospital. In between 12.0012.30 I came at the spot with my brother and took my brother Shiv Kumar to BSA Hospital where my brother Shiv Kumar was declared brought dead. In the meantime someone had called the PCR.
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 87 of 103 Thereafter my statement was recorded by the IO and the same is Ex.PW11/A which bears my signatures at point A. After the postmortem dead body of my brother was received by me and my brother Sumit vide receipt Ex.PW11/B which bears my signatures at point A as well of my brother at point B. Prior to the postmortem on the body of Shiv Kumar I and my brother have identified the body of my brother during inquest proceedings Ex.PW11/C as well as of my brother Sumit Giri Ex.PW11/D. Ex.PW11/C bears my signatures at point A and also the signatures of Sumit at point A on Ex.PW11/D....."
(95) In his crossexamination the witness Ajay Giri (PW11) has specifically admitted that his brother Shiv Kumar was already having head injuries previously at the time of the incident. He is unable to tell who had made a call to the PCR and is also not able to inform as to who had caused the previous injuries to Shiv Kumar (deceased). I also note that Ajay Giri had stated that he had received a missed call from his brother Shiv Kumar at about 10:40 PM and soon thereafter he came to his roof from where he noticed the accused beating his deceased brother on which he ran to save him but by the time he could reach to his brother he had already collapsed.
(96) His testimony, I may observe, does not find any independent corroboration or confirmation from any other source since St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 88 of 103 his brother Sumit (PW15) is not an eye witness. He has specifically stated that his brother Ajay had come to house at around 11:00 PM and informed him that his brother Shiv Kumar was lying the gali near the pole on which he went out to saw his brother who was lying the gali and he had expired by that time. According to Sumit, at about 11:30 PM he had spoken to his brother Shiv Kumar on his mobile No. 9250031086 from the mobile phone of his wife bearing No. 9213176774. Here, I may observe that Sunil (PW15) is involved in two criminal cases and has admitted that his brother Shiv Kumar was also involved in one criminal case previously. The uncle of the deceased namely Jai Bhagwan who had made one of the 100 number call on seeing the dead body of Shiv Kumar has been examined as PW12. He is not an eye witness to the incident and does not say anything about the incident.
(97) Coming now to the testimony of Raj Kumar @ Raju (PW16) which is most relevant. He is the person who was selling eggs on a rehri where Ajay Giri claimed that all the accused along with the injured/ deceased Shiv Kumar were having eggs when the quarrel took place. I may observe that this Raj Kumar @ Raju does not support this version of Ajay Giri and has turned totally hostile on the aspect of the deceased or accused having come to his rehri or of having purchased eggs. He is an independent witness who could confirm this aspect being seller of eggs where Ajay claims he had seen the accused and the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 89 of 103 deceased. I am sure in case if they were all having eggs on the rehri of Raj Kumar there is no reason why he would deny the same. (98) Now coming to the assessment/ evaluation regarding the credibility of the testimony of the eye witness Ajay Giri (PW11), I come to the various PCR Forms which have been placed on record by the defence showing that repeated telephone calls have been made with regard to the happenings at the spot of incident, which PCR Forms I am putting in a tabulated form as under:
Sr. Time of Mobile No. Call Information WT message sent by the No. Call PCR 1 22:50 9250031086 2000 Rupees Hath Shiv Kumar S/o Sant Giri me chaku markke age 19 years, R/o Budh cheen kar le gaya, Vihar, PhaseI, jo paidal hai Jise caller ghar ja raha tha, ghar ke janta hai pass 2 larke ek ka naam Ravi tha haath me 1 inch gahrah koi nokili cheez mar rakhi hai or Rs.
2,000/ chin kar gaye, jo hospital nahi jana chahta 2 20:53:20 Last digits Ek Sharabi ne apne Patipatni ka jhagra, pati 36748 (initial app ko blade mar ne halka sa bled mar numbers not liya hai rakha hai readable on account of punching) 3 23:57:26 9212991606 Quarrel Do Bhaiyon ki sharab pikar kahasuni 4 0:37:38 9280707680 Quarrel DewarBhabhi ki kaha suni St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 90 of 103 5 22:59:35 9873114329 Yahan par ek Bhaiyon ki kaha suni aadmi ne mere head me patthar mar kar bhag gaya kisko mai janta hu 6 23:05:27 9250031086 Quarrel Bhaiyon ki kaha suni 7 22:04:34 9212991606 Jhagre me ek ladke Sharaab pi kar jhagra hai, ka sir phod diya Ek injured hai, lekar hai hospital ja rahe hain, injured to BSA Hospital me Duty Constable ke hawale hosh me kiya.
8 21:35:23 9212991606 Quarrel Sharaab pi kar jhagra hai, Ek injured hai, lekar hospital ja rahe hain, injured to BSA Hospital me Duty Constable ke hawale hosh me kiya.
9 1:21:39 9250031086 Quarrel + Injured, Jankaron ki kahasuni, Jhagde me mujhse chinne wali koi bat nahin Lohia naam ke larke ne Rs.5000/ cheen liye aur mujhe maara hai 10 0:37:02 9250031086 Quarrel Do bhaiyon ki kahasuni 11 21:46:44 9212991606 Quarrel Caller se 2/3 unknown ladke jhagra karke gaye hai, no injured.
12 22:43:00 98731114329 Jhagra Do Bhaiyon ki kaha suni 13 23:43:37 9250031086 Jhagra Moka par koi nahin mila, phone par bataya ki mere jhagre hote dekha tha, mouka se ja chuka hai 14 21:15:04 98731114329 Quarrel Do bhaiyon ke bich kaha suni St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 91 of 103 15 23:06:42 9250031086 Kuch ladke hai jo MiyaBibi ka jhagra tha caller ka gate tood jisme bibi mamuli injured rahe hai thi, jisko SG Hospital me Duty Constable ke havale hosh me kiya, relative sath me tha. Complainant nasha sharab me hai jo bata rahe hai ki 2/3 ladke door ko baja rahe the 16 23:12:32 9250031086 Kuch ladke hai jo MiyaBibi ka jhagra tha caller ka gate tood jisme bibi mamuli injured rahe hai thi, jisko SG Hospital me Duty Constable ke havale hosh me kiya, relative sath me tha.
17 23:18:24 9250031086 Mera sar fad diya Injured ko lekar hospital
hai mujhe address ja rahe hain, halat ke liye
nahi pata, jaldi wait. Shiv Kumar ka
police behjye jankar se jhagra jisko BSA
Hospital me Duty
Constable ke hawale hosh
me kiya
(99) Here, I may mention that the above PCR Forms which are
collectively Ex.DW1/A have been withheld from the Court and it is the accused Sunil who has examined himself by entering into the witness box under section 315 Cr.P.C and he has filed and exhibited certified copies of PCR Forms which were obtained by him under the right to information act which shows various calls were made by the phone numbers of the complainant as well as deceased mention in FIR to the police at 100 number and the said calls were about fighting between the deceased with his brothers and between his brothers to other person St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 92 of 103 from time to time. One can easily revels after going through the contents of aforesaid PCR forms exhibited by the accused that there was some enmity between the deceased and his family members including his brother Ajay Giri and Sumit Giri but police has not investigated from the said angle.
(100) The perusal of the PCR Forms show that repeated calls were made to the police regarding quarrel between the brothers who were drunk, one of whom was injured and was admitted to the hospital in conscious state. No investigations have been made on the aspect of the various PCR Forms which have now been placed on record by the defence. In fact the above PCR Forms tell a different story. The Investigating Officer has interestingly not collected any Call Detail Records of the mobile phones used by the deceased and his brothers despite the availability of their numbers and despite the fact that both Ajay Giri and Sumit had claimed that they had received calls from their brother Shiv Kumar. I am sure in case if this call was received by them from the mobile of the deceased Shiv Kumar it was a relevant fact which could have been established from the mobile details. Why then this electronic record was not collected? In this background an adverse inference is being drawn with regard to the same since these Call Details Record were very important and could have established the various calls made by the deceased to his brothers as claimed by them at various points of time. In fact Sumit claimed that he had spoken to St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 93 of 103 his brother on his mobile phone from the mobile phone of his wife and Ajay Giri stated that he had received a missed call from the deceased at around 10:40 PM. Both these aspects have not been confirmed/ ascertained by the Investigating Officer.
(101) In fact the case of the defence i.e. accused is different. They have claimed that there were large difference/ property disputes between the brothers on account of which even before the present incident as narrated by the prosecution, a quarrel had taken place between the brothers in the evening in which the deceased Shiv Kumar had received head injury for which he was treated in the hospital and this fact can be proved and established from the various PCR Forms placed on record. It is also argued that the wife of the deceased Shiv Kumar was into an intimate relationship with Sumit due to which a quarrel had taken place between the brothers in which Shiv Kumar who was in a state of intoxication was beaten. It is submitted that the deceased Shiv Kumar was hurriedly got treated and brought back and he later expired due to these injuries and it was only to save themselves from penal consequences on account of the death of their brother that the entire blame was diverted and shifted upon the accused Sunil and Harvinder Singh since Harvinder Singh had a criminal record previously and other family members of Sunil too are known to be involved into various criminal cases and the crime could have been easily diverted and shifted upon them. This possibility cannot be ruled St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 94 of 103 out since one of the PCR Forms mentions the name of a specific person as claimed by the PCR Official where the injured had given the name of one of the boy who had snatched his money as Ravi. Why all these aspects have not been investigated?
(102) On the basis of the evidence which has come on record I find the version given by the Defence as more authentic than the prosecution case which has come forward, Firstly because the deceased and his brother Sumit were involved in many cases and even the complainant Ajay Giri does not have any antecedents, Sumit Giri being involved in two other cases whereas one case was pending against his deceased brother Shiv Kumar.
(103) Secondly the PCR Forms placed on record by the defence which calls were made by the mobile phone of the deceased Shiv Kumar or his brother Ajay Giri, reveal that all the calls relate to the addresses of the deceased or of his brothers regarding quarrel at their houses establishing that the offence i.e. quarrel had in fact taken place at the house of the deceased and his brothers.
(104) Thirdly it is an admitted case of the prosecution that there is no criminal history or criminal background of the accused Sunil @ Sethi and merely because he was known to the accused Harvinder Singh as well as the deceased and his family being a resident of the same area does not make him a criminal.
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 95 of 103 (105) Fourthly the motive so attributed by the prosecution against the accused Sunil @ Sethi is improbable since there was no enmity between the deceased and the accused Sunil nor there was any hard friendship between accused Sunil and Harvinder Singh and hence the question of taking revenge by accused Sunil against deceased Shiv Kumar in favour of accused Harvinder does not arise. (106) Fifthly as per the prosecution case the accused Sunil @ Sethi was using a Baseball Bat to support his limping leg. However, it has been observed by this Court that the accused Sunil @ Sethi was not using any stick or bat to support his limping leg while walking during his appearance in the Court. Even otherwise, the length of the alleged Baseball Bat was found to be 65 cms which cannot support an adult with a height not less than six feet (i.e. same as that of accused Sunil @ Sethi).
(107) Sixthly as already discussed herein above the recovery of the alleged Baseball Bat at the instance of accused Sunil @ Sethi from the Ganda Nala is not admissible in evidence. Even otherwise, the attesting witness of the Baseball Bat i.e. SI Sanjeev (PW17) has deposed that he had gone to ease himself when the Baseball Bat was recovered and he signed its seizure memo Ex.PW17/J subsequently. Even, the Autopsy Surgeon Dr. Vijay Dhankar (PW19) has confirmed that the injuries on the body of the deceased can be caused on account of fall and hence the recovery of Baseball Bat if any is irrelevant and St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 96 of 103 not incriminating qua accused.
(108) Seventhly the medical evidence on record, as discussed herein above, is also not compatible to the prosecution case. The prosecution has failed to explain as to how the stitched wound was present on the head of the deceased. I may note that the Injury No.1 was the only fatal injury and it is apparent from the evidence on record that the deceased was attacked and assaulted by some other persons by hitting him on his head at some other spot and his wound was got stitched and when he expired his body was shifted at the road in the corner of gali and a false story was created.
(109) Eighthly in so far as the arrest of the accused Harvinder and Sunil is concerned, the same also does not inspire confidence of the Court. The case of the prosecution is that the accused have been arrested from Milan Vatika which is hardly 500 meters away from the spot. It is highly improbable that a person after committing the murder would hide himself in the same area particularly when he has been seen and recognized by the brother of the deceased and could be easily identified being a neighbour and residing in the vicinity. Further, Ajay Giri (PW11) who is alleged to have identified the accused, is not a signatory to the arrest memos and the disclosure statements of the accused.
(110) Ninethly I may observe that the other family members of the deceased particularly the wife of the deceased Shiv Kumar and the St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 97 of 103 wife of his brother Sumit have not been examined as witnesses. Further, the most important witness i.e. eldest brother of the deceased namely Sushil Giri and his family members have also not been examined. As per the claims made by Ajay Giri (PW11) the shops near the spot of the incident were open at that time but none of the shopkeepers have been examined in the Court. In so far as the public witness Raj Kumar @ Raju is concerned, he has totally turned hostile and has not supported prosecution story and the accused and the deceased had come to his Rehri to have eggs on or had a dispute. It appears that he has been planted as a witness only to lend credence to the last seen evidence regarding the deceased being present with the accused person but to no avail.
(111) Tenthly as per the prosecution case Ajay Giri (PW11) had seen both the accused giving beatings to his brother Shiv Kumar at about 11:40 PM, however, the prosecution has failed to explain as to why the two brothers i.e. Ajay Giri and Sumit failed to inform the police immediately since the first call was made by Jai Bhagwan (PW12) at 12:30 AM i.e. after about 50 minutes of the alleged incident. Here, I may observe that despite the fact that the complainant Ajay Giri (PW11) himself mentioned two mobile numbers in the FIR which he was using at that time, he did not make the PCR call at the first instance.
St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 98 of 103 (112) Lastly there are two different versions given by the prosecution witnesses on the aspect of removal and shifting of the dead body from the spot. On the one hand Ajay Giri (PW11) and Sumit (PW15) have claimed that they removed the dead body to BSA Hospital in a TSR and police followed them to the hospital after which Ajay Giri came to the spot and his statement was recorded whereas on the other hand according to the police witnesses including both the Investigating Officers it was police who shifted the dead body to BSA Hospital in a mini truck/ tempo. In case if Ajay Giri and other brothers of the deceased were available at the spot, why they did not rush Shiv Kumar to hospital immediately and why the medical evidence shows the deceased being brought to the hospital by the police. It is this which gives a twist to the version put forth by the prosecution. The conduct of brothers of the deceased is not consistent, natural and probable and there testimonies do not appear truthful. This a serious and material contradiction which casts serious doubt on the prosecution story and the possibility of the brothers of the deceased Shiv Kumar being the author of the crime cannot be ruled out. In this regard I may observe that as per the settled law wherever 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 [Ref.: Bhagwan Singh & Anr. Vs. State of MP reported in 2002 (4) SCC 85; State of Rajasthan St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 99 of 103 Vs. Raja Ram reported in 2003 (8) SCC 180; State of Goa vs. Sanjay Thakran reported in 2007 (3) SCC 755]. Hence, in view of the above the second view of the brothers of the deceased or some other person being the author of crime being equally possible, the view pointing towards the innocence of the accused has to be adopted. (113) This being the background, I hereby hold that the prosecution has not been able to prove and establish beyond reasonable doubt the allegations against the accused Harvinder Singh and Sunil @ Sethi of having committed the murder of Shiv Kumar and hence benefit of doubt is being to both the accused who are acquitted of the charges under Section 302/34 Indian Penal Code.
FINAL CONCLUSIONS:
(114) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ' must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 100 of 103 explainable on any other hypothesis except that the accused is guilty;
3. the circumstances should be of conclusive nature and tendency;
4. they should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(115) Applying these settled principles of law to the facts of the present case, I hereby hold that though the prosecution has been able to establish the identity of the accused Harvinder Singh and Sunil Kumar @ Sethi which even otherwise is not disputed, but it has miserably failed to establish beyond reasonable doubt that Harvinder and Sunil were present at the spot i.e. at the Rehri of Raj Kumar @ Raju and were having eggs with the deceased Shiv Kumar also standing there when there was a quarrel between them. The prosecution has also failed to establish that Harvinder and Sunil had given merciless beatings to the deceased Shiv Kumar and hit him with the Baseball Bat causing multiple injuries to him as a result of which he expired. The Medical and the Forensic Evidence is not compatible to the prosecution case and does not assist the prosecution in any manner. The investigations have been found to severely lacking and no electronic St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 101 of 103 evidence has been collected or placed on record by the Investigating Officer which include the call detail records of the deceased as well as his brothers and also the accused. The PCR Forms as regards the various repeated calls made were also not placed on record which were later brought before the Court by the Defence.
(116) Therefore, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused persons. The materials brought on record by the prosecution are insufficient so as to hold that each of the accused Harvinder Singh and Sunil Kumar @ Sethi was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Harvinder Singh and Sunil Kumar @ Sethi. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Harvinder Singh and Sunil Kumar @ Sethi, beyond St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 102 of 103 reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Section 302/34 Indian Penal Code.
(117) File be consigned to Record Room to be taken up on the arrest of accused Rakesh @ Andy who is Proclaimed Offender.
Announced in the open court (Dr. KAMINI LAU) Dated: 4.7.2014 ASJII(NW)/ ROHINI St. Vs. Harvinder Singh, Etc. FIR No. 144/2013, PS Vijay Vihar Page No. 103 of 103