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Delhi District Court

State vs Jeet Singh @ Jeetu on 29 April, 2014

             IN THE COURT OF SH. PARVEEN SINGH,
   ADDITIONAL SESSIONS JUDGE­03(NE), ROOM NO.53,
             KARKARDOOMA COURTS, DELHI.
SC No. 107/10
Unique Case ID no. 02402R0345032008.

FIR No. 66/08
PS Nand Nagri.
U/s 302/34 IPC


STATE
                               Versus


1. Jeet Singh @ Jeetu,
S/o Chatersen,
R/o Makan Ajane Champa, Harsh Vihar­II,
Shahibabad, Distt. Ghaziabad,
UP.


2. Kalu @ Neeraj,
S/o Chatersen,
R/o 9/106, Bagichi Gali,
Viswas Nagar, Shahdara, Delhi­32.

Date of Institution     :              31.05.2008.
Date of reserving judgment / order :   24.04.2014.
Date of pronouncement :                29.04.2014.


FIR No. 66/08
PS Nand Nagri.                                       1/67
 JUDGMENT

1. The case of the prosecution is that, on 07/02/2008, at about 3.30 p.m., the complainant Chet Ram (PW6) along with his brother Diwan (deceased), were going on their motorcycle bearing No.DL7SAZ5825 towards their shop on 20 Foot Road, A­Block, Harsh Vihar, Delhi. When they were around 50 meters away from the house of Kalu and Jeetu (both accused), one white colour Maruti Car hit their motorcycle from the front. Both the complainant Chet Ram and Diwan the deceased, fell on the ground. Accused Kalu, Jeetu and two other unknown boys alighted from the Maruti Car. They were armed with knives. Immediately on alighting, they started stabbing Diwan. The complainant was frightened and stood behind an electric pole and started shouting loudly. The deceased Diwan somehow managed to get up from ground and tried to run but, the accused Kalu and Jeetu along­with their unknown accomplices stabbed him from behind. Deceased Diwan fell on ground and Kalu and Jeetu along­with their two unknown accomplices got into the Maruti Car and fled towards Bhopura Theka, Harsh Vihar. PW4 Sh. Raghunath, a passerby, informed the control room and the local police received the information which was recorded as DD No. 17 Ex.PW10/A in PS FIR No. 66/08 PS Nand Nagri. 2/67 Nand Nagri.

1.1 PW9 HC Surender Singh, In­charge of the PCR, arrived at the spot and transported the complainant and his brother Diwan to the GTB Hospital where he was declared brought dead. In the meantime, PW10 SI Vijay, PW11 Ct. Mangat Singh, PW19 Insp. Satish Kumar and PW12 SI Ajay Singh Negi reached the spot. Ct. Mangat Singh was left to guard the spot and other police officers went to GTB Hospital. The MLC Ex.PW14/A of deceased Diwan was collected . On the complaint Ex.PW6/A of Chet Ram, rukka Ex.PW12/A was sent for registration of FIR and FIR Ex.PW5/A was registered. The crime team was called at the spot and the crime team submitted its report vide Ex.PW17/A. 1.2 IO Insp. Satish Kumar, vide seizure memo Ex.PW10/A, seized the motorcycle (Ex.PW6/P1) upon which the deceased was travelling. The track suit upper (Ex.PW6/P2) worn by the deceased and his right shoe Ex.PW6/P3 were seized vide memo Ex.PW10/B. Blood was lifted with cotton gauze from the two places vide Ex.PW10/C. Earth concrete stained with blood and earth control were seized vide Ex.PW10/D, F and E. The autopsy of the deceased was conducted on 08.02.2008 and the report of the post­mortem is FIR No. 66/08 PS Nand Nagri. 3/67 Ex.PW13/A. Accused Jeet Singh was arrested on 08.02.2008 vide arrest memo Ex.PW12/A. Pursuant to the disclosure statement Ex.PW12/A­2 of accused Jeet Singh, his blood stained clothes i.e. T­ shirt (Ex.PW12/P2) and Jeans (Ex.PW12/P3) and a single edged knife Ex.PW12/P1 were recovered from the left side of Delhi­Haridwar road around 03­04 Kms prior to Meerut by­pass. The accused Kalu was arrested on 14.02.2008 vide arrest memo Ex.PW18/A. 2 Charge under section 302/34 IPC against both the accused was framed on 10.09.2008 to which they both pleaded not guilty and claimed trial.

3 Prosecution to prove its case examined 19 witnesses. 3.1 PW1 Balwan , is the brother of the deceased Diwan. He deposed that on 08/02/2008, vide Ex.PW1/A, he had identified the dead body of his brother. During his cross­examination, he deposed that his brother was wearing a white colour pant shirt and blue colour jacket.

3.2 PW2 Satyavan is also the brother of deceased Diwan. Vide Ex.PW2/A, he had identified the dead body of his brother Diwan.

FIR No. 66/08 PS Nand Nagri. 4/67 3.3 PW3 Ravinder is the photographer who, on 07/02/2008, upon the instructions of the IO, had taken eight photographs of the scene of crime. The photographs were exhibited as Ex.PW3/A to Ex.PW3/H and the negatives were exhibited as Ex.PW3/A1 to Ex.PW3/H1.

3.4 PW4 is Raghunath. He had informed the PCR about the incident. He deposed that on 07/02/2008 at about 3.30 p.m. when he was passing through 20 futa road, A block, Harsh Vihar Delhi, he saw that one boy was lying on the road and a lot of blood was oozing out of his body. One man standing near that boy was telephoning someone. That man was making a call to the police. Since he was not able to understand as he was quite aged, he took the phone from him and informed the police on the PCR No.100. After reaching of the PCR van, he left the spot.

3.5 PW5, HC Dinesh was the Duty Officer at P.S. Nand Nagri on 07/02/2008 from 5 p.m. to 1 a.m. (mid night). On receipt of rukka sent by SI Ajay Singh Negi at about 7.25 p.m., he registered the FIR No.66/08 (Ex.PW5/A). He had also made endorsement (Ex.PW5/B) on the rukka.

FIR No. 66/08 PS Nand Nagri. 5/67 3.6 PW6, Chet Ram is the brother of the deceased Diwan. As per prosecution, he was an eye witness to the incident. His testimony will be discussed at later stage.

3.7 PW7 is HC Prem Pal Singh. On 07.02.2008, he was working as MHC(M). He deposed that on that day, he received seven sealed pulindas sealed with the seal of SK and a motorcycle bearing no. DL­7S­AZ 5825. He deposited the case property in malkhana vide entry no. 3831 in register no. 19. On 10.02.2008, he received two sealed pulindas sealed with the seal of SK and deposited the same in malkhana vide entry no. 3833 in register no. 19. On 12.02.2008, IO had deposited two pulindas and one sample seal duly sealed with the seal of the hospital and he deposited the same in malkhana vide entry no. 3840 in register no. 19. On 25.04.2008, vide RC no. 11/21, he sent 11 sealed pulindas to FSL Rohini through Ct. Manoj Kumar. On 23.07.2010, five pulindas along­with one sealed report, were brought by HC Ashok from the FSL Rohini and they were deposited by him in the malkhana. On 16.11.2010, six pulindas and one sealed report was brought by Ct. Alok Kumar, and the same was deposited in the malkhana. On 18.02.2008, the motorcycle was released to Balwan Singh. The photocopies of the relevant entries of register no. 19 were FIR No. 66/08 PS Nand Nagri. 6/67 collectively exhibited as Ex.PW7/A and the photocopy of RC was exhibited as Ex.PW7/B. 3.8 PW8 is Ct. Kayyum who had delivered the copies of the FIR to various senior officers.

3.9 PW9 is HC Surender Singh who had responded to the call to PCR and transported the deceased to the GTB Hospital. He deposed that on 07/02/2008, he was posted in PCR, North East District and his duty hours were from 8 a.m to 8 p.m. At 04.00 p.m., he received a wireless information from control room that some persons had beaten and injured someone at premises No.383, Gali No.12, 20 futa Road, Harsh Vihar. He had also received another information, that one person had been assaulted by knife. He, along­ with staff and PCR Van, reached the spot. He found that one person was lying in injured condition and was having various stab injury marks and bleeding. He also met one other person who disclosed his name as Chet Ram and informed that he was brother of injured Diwan. He took both of them to GTB Hospital in PCR van. The injured Diwan was declared brought dead.

3.10 PW10 is SI Vijay. He deposed that on 07/02/2008, he FIR No. 66/08 PS Nand Nagri. 7/67 was posted at P.S Nand Nagari and from 8 a.m. to 8 p.m he was on emergency duty. At about 4 p.m., he was handed over DD No.17 Mark P10/A. Upon receipt of the DD, he reached the scene of crime. SHO Insp. Satish Kumar and In­Charge Police Post SI Ajay Singh had also arrived. He found a motorcycle Bajaj Discover bearing no. DL­7S­ AZ­5825, lying on the spot. One upper track suit (jacket) of blue colour was also lying there. One black colour shoe of right leg was also lying on the spot. Blood was also lying at different places. He handed over DD No.17 to ICPP(in charge police post) SI Ajay Singh Negi and then he, alongwith SI Ajay Singh Negi and the SHO, left for GTB Hospital. He received MLC no. 490/08 of Diwan and also met Chet Ram who stated that he was brother of Diwan. Chet Ram gave his statement in writing to SI Ajay Singh Negi. Thereafter, they all inspected the dead body of Diwan and he observed sharp injuries on the dead body. The dead body was sent to mortuary. Thereafter he, alongwith SI Ajay Singh Negi and SHO Insp. Satish Kumar and Chet Ram, returned to the spot where Ct. Mangat was already present. Incharge Crime Team SI Rajesh Dogra had already arrived at the spot. He went to Ayush Photo Studio and brought photographer Ravinder at the scene of crime who took photographs of the spot. The motorcycle FIR No. 66/08 PS Nand Nagri. 8/67 was taken into possession vide seizure memo Ex.PW10/A which had his signatures at point A. The track suit and one shoe were also taken into possession vide seizure memo Ex.PW10/B having his signatures at point A and were sealed with the seal of SK. The IO, with the help of some cotton, had also lifted the blood which was found at the spot. It was put in a plastic dibbi, sealed with the seal of SK and taken into possession vide seizure memo Ex.PW10/C which was signed by him at point A. The blood stained concrete and earth control were also taken into possession, sealed with the seal of SK and seized vide memos Ex.PW10/D, Ex.PW10/E, Ex.PW10/F and Ex.PW10/G, all of which had his signatures at point A. At the instance of Chet Ram, IO had prepared the site plan Ex.PW6/B and after recording his statement, he was relieved. The case property was then taken to the Police Station and deposited in the malkhana. He identified the case property i.e. motorcycle already Ex.PW6/P1. The blue colour track suit and one shoe of right foot which were already Ex.PW6/P2 and Ex.PW6/P3.

3.11 PW11 Const. Mangat Singh had accompanied SI Vijay who on receipt of DD No.17, had gone to the scene of crime. He deposed on the lines of SI Vijay and stated that when SI Vijay, SI FIR No. 66/08 PS Nand Nagri. 9/67 Ajay Singh Negi and SHO Insp. Satish Kumar went to GTB Hospital, he was left to guard the scene of crime. SI Ajay Singh Negi had handed over to him a tehrir and he had taken the same to Police Station for registering of the case. After registration of the case, the Duty Officer had handed over to him a copy of FIR and rukka. He took them to the spot and handed them to SHO Satish Kumar. On 08/02/2008, after the post mortem, the doctor had handed over some papers and the Post Mortem Report to him. He had handed over the post mortem report and the papers to SI Ajay Singh Negi. One Dr. Talwar, on 08/02/2008, had told him that the pullandas could not be handed over to him, so on 12.02.2008, he again went to GTB Hospital when the concerned doctor handed over to him pullandas comprising of clothes of deceased, blood on gauge and sample seal which he brought and handed over to IO Insp. Satish Kumar who seized the same vide memo Ex.PW11/A (wrongly typed as PW1/A). 3.12 PW12 SI Ajay Singh Negi deposed that on 07/02/2008, he was posted as Incharge P.P. Harsh Vihar and on that day, at about 4 p.m. while on patrolling duty, he received wireless information regarding this incident. On receipt of information, he reached the scene of crime where he met SI Vijay Kumar and Ct. Mangat. SHO FIR No. 66/08 PS Nand Nagri. 10/67 Insp. Satish Kumar had also reached the spot during that time. They came to know that PCR Van had already shifted the injured to GTB Hospital . One motorcycle bearing No.DL­7S­AZ­5825 make Bajaj Discover was lying on the road. Upper part of a blue black colur track suit and one black colour shoe of right leg were also lying near the spot. Lot of blood was also lying on the spot. Eight to ten steps ahead of the spot, lot of blood was lying. SI Vijay Kumar handed over DD No.17 relating to this incident to him. On instruction of Insp. Satish Kumar, he left Ct. Mangat Ram at the spot and he, along­with SI Vijay Kumar and Insp. Satish Kumar, went to GTB Hospital. On reaching the hospital, they found that the injured had been declared brought dead. He met Chet Ram (PW6), brother of the deceased, in the hospital who handed over to him his handwritten statement. At about 6:45 p.m. he, along­with Insp. Satish Kumar, SI Vijay Kumar and Chet Ram, returned to the spot . Crime Team had already arrived by that time. On the instructions of Insp. Satish Kumar, he made endorsement on the statement of Chet Ram and prepared tehrir to get the FIR registered and that after registration of FIR, investigation should be handed over to Insp. Satish Kumar. At about 7 p.m., this tehrir was handed over to Ct. Mangat Singh. On the instructions of FIR No. 66/08 PS Nand Nagri. 11/67 Insp. Satish Kumar, the crime scene was inspected by crime team and Insp. Satish Kumar sent SI Vijay Kumar to bring a private photographer and the site was also got photographed. The motorcycle was taken into possession vide memo Ex.PW10/A. The upper portion of the track suit and one shoe were also taken into possession and were converted into a pullanda and the pulinda was sealed with seal of SK and was seized vide seizure memo Ex.PW10/B. 3.12.1 On 08/02/2008, at around 7 p.m., IO Insp. Satish Kumar came to P.P. Harsh Vihar. IO prepared a team comprising of PW12 Ct. Onkar, and Ct. Kishan Pal. The IO was having a secret information that one Jeet Singh @ Jeetu, who was wanted in this case, would come at his house at Harsh Vihar, Phase­II, at about 8 p.m. to meet his mother. They proceeded to that house. They apprehended one person whose identity was later on revealed as Jeet Singh @ Jeetu. After interrogation, Jeet Singh @ Jeetu was arrested at about 8.10 p.m vide arrest memo Ex.PW12/A and his personal search was conducted vide memo Ex.PW12/A1. The accused Jeet Singh was then brought to the Police Booth and was interrogated. He made disclosure statement Ex.PW12/A2. On 10/02/2008, the IO came to P.P. Harsh Vihar in private vehicle. The accused Jeet Singh @ Jeetu was also present in FIR No. 66/08 PS Nand Nagri. 12/67 the vehicle. The IO constituted a team comprising of him and Ct. Udaivir. He alongwith Ct. Udaivir boarded the vehicle. They, along­ with the IO and the accused, proceeded towards Meerut Bypass. 3­4 kilometers before Meerut Bypass, accused Jeet Singh got the vehicle stopped. He disclosed that the weapon of offence along­with his clothes were thrown by him in a plastic polythene. Accused Jeet Singh took them to about 100 yards down the road and pointed towards a polythene that was lying near the grass to be the same polythene which contained the weapon of offence and his clothes. The IO on opening the plastic polythene found a blue colour full sleeves T­shirt on which 77 was written. One blue colour jeans was also found in the said polythene. Both were found to be having dark coloured brown stains which appeared to be bloodstains. Between the said clothes there was a knife. IO prepared sketch of knife (Ex.PW12/B). The knife was converted into a parcel and sealed with the seal of SK and seized vide memo Ex.PW12/C. The T shirt and the jeans were also converted into a parcel and same were sealed with seal of SK and the parcel was seized vide memo Ex.PW12/D. 3.12.2 On 05/04/2008 he, alongwith IO Insp. Satish Kumar and draftsman SI Mukesh, went to the place of occurrence. After making FIR No. 66/08 PS Nand Nagri. 13/67 inquiries from them, SI Mukesh had taken measurements of the spot and the adjoining places.

3.12.3 He also deposed that he could identify the case property if shown to him. A sealed pulinda duly sealed with the court seal was produced and opened. It found to be containing a track suit of blue black colour Ex.PW6/P2 and a shoe of black colour of right foot Ex.PW6/P3.

3.12.4 Another pulinda sealed with the seal of VLN FSL Delhi was produced and opened. It found to be containing a knife Ex.PW12/P1. Another parcel sealed with the seal of DS FSL was produced and opened and it was found to be containing one T shirt having dirty stains and one jeans. He identified the same as the articles which were recovered at the instance of accused Jeet Singh @ Jeetu. The knife was exhibited as Ex.PW12/P1, the T­shirt was exhibited as Ex.PW12/P2 and the jeans was exhibited as Ex.PW12/P3. 3.13 PW13 is Dr. Sumit Tellewar. He deposed that on 08.02.2008, he was posted as Sr. Demonstrator at GTB Hospital Mortuary. He had conducted a postmortem on the dead body of Deewan, a 19 year male. After the completion of the postmortem, he FIR No. 66/08 PS Nand Nagri. 14/67 prepared autopsy report Ex.PW13/A. He sealed the clothes of the deceased as mentioned in the postmortem Report Ex.PW13/A and took the blood on a gauze. He deposed that he could identify the case property if shown to him. One sealed pulinda duly sealed with the court seal was produced and opened. It was found to be containing upper portion of the track suit Ex.PW6/P2, one shoe of left foot, one leather jacket, one shirt, one underwear, one pant having belt and one vest. He identified the same to be the belongings of he deceased. These articles were already exhibited as Ex.PW6/P4. 3.14 PW14 is Dr. P. Ram, CMO of GTB Hospital. He deposed that MLC Ex.PW14/A was in the handwriting of Dr. Sri Niwas and he could identify the handwriting and signature of Dr. Sri Niwas as Dr. Sriniwas had worked under him. He also identified the handwriting and the signature of Dr. Sri Niwas on the death certificate Ex.PW14/B. 3.15 PW15 is SI Mukesh Kumar. He deposed that on 05.04.2008, he was posted as draftsman in North East District. On that day, on being asked by the IO Insp. Satish Kumar ; he, alongwith the IO and chowki in­charge SI Ajay Singh Negi, had gone to 20 futa road, A block, Harsh Vihar adjoining Delhi­UP Border. He prepared a FIR No. 66/08 PS Nand Nagri. 15/67 scaled site plan Ex.PW15/A. 3.16 PW16 is HC Manoj Kumar. He deposed that on 25.04.2008, he was posted in PP Harsh Vihar, PS Nand Nagri. On that day, vide RC No. 11/21, he took 11 pulindas from the MHCM, PS Nand Nagri. Out of the 11 pulindas, 9 pulindas were sealed with the seal of SK and two were sealed with the seal of SR. He deposited the pulindas as FSL Rohini. He further deposed that till the time the case property remained in his custody, it was not tampered with. 3.17 PW17 is Insp. Rajesh Dogra. He deposed that on 07.02.2008, he was posted as In­charge Crime Team, North East District. On receipt of a call, he along­with HC Surender Kumar (Finger Print Expert) and the driver, reached the spot i.e. A Block, 20 Futa Gali, Harsh Vihar. He found Ct. Mangal Singh to be present there. One motorcycle of registration no. DL­7S AZ­5825, one blue black coloured upper track suit and one black colour shoe were found lying on the spot. Blood was also lying at the spot. Insp. Satish Kumar along­with the staff reached the spot. He inspected the spot. A private photographer was called by the IO and the spot was got photographed. He prepared the crime inspection report Ex.PW17/A. FIR No. 66/08 PS Nand Nagri. 16/67 3.18 PW18 is SI Rakesh Kumar. He deposed that on 10.04.2008, he was posted at PP Harsh Vihar, PS Nand Nagri. He deposed that on that day, SHO Insp. Satish Kumar came to the chowki Harsh Vihar and informed that he had a secret information that Kallu @ Neeraj , wanted in the present case, would come at A Block, Harsh Vihar. He along­with Ct. Shashi Bhushan accompanied the IO and reached at 20 futa road where they parked their vehicle. From there, they walked on foot and entered Harsh Vihar II also known as Gagan Vihar. At about 09.00 p.m., one person was seen coming from theka side and on the pointing of the secret informer, that person was stopped. On interrogation by the IO, he disclosed his name as Neeraj. He was arrested vide arrest memo Ex.PW18/A and his personal search was conducted vide memo Ex.PW18/A1. Accused Neeraj also made his disclosure statement Ex.PW18/A2. He pointed out to the place of occurrence and the pointing out memo Ex.PW18/B was prepared. 3.19 PW19 is IO/Insp. Satish Kumar. His testimony will be discussed at a later stage.

4 Statements of both the accused U/S 313 Cr.P.C. were recorded on 19/10/2013. Both the accused preferred to lead evidence FIR No. 66/08 PS Nand Nagri. 17/67 in their defence and examined ASI Mahender Singh as DW1, HC Gyan Chand as DW2, Const. Brij Pal as DW3, HC Mohd. Ali as DW4. Accused Kalu @ Neeraj examined himself as DW5.

4.1 As DW1, they examined ASI Mahender Singh. He had brought the log book of government Gypsy bearing no. DL­1CH­5466 w.e.f 01.06.2007 to 31.07.2008. The copies of entries in the log book pertaining to 07.02.2008, 08.02.2008, 09.02.2008 and 10.02.2008 were exhibited as Ex.DW1/C (colly).

4.2 DW2 is HC Gyan Chand, who deposed that on 10.02.2008, he was posted at PS Nand Nagri as Constable Driver. He further deposed that the entry pertaining to 10.02.2008 of the log book of vehicle no. DL­1CH­5466 encircled at point X was in his handwriting.

4.3 DW3 is Ct. Brij Pal, who deposed that on 08.02.2008, he was posted as Constable Executive. The entry pertaining to 08.02.2008 in log book Ex.DW1/C encircled at point Y was in his handwriting. On that day, as regular driver was on leave, he had driven the vehicle no. DL­1CH­5466.

4.4 DW4 is HC Mohd. Ali, who deposed that on 07.02.2008, FIR No. 66/08 PS Nand Nagri. 18/67 he was posted at PS Nand Nagri as Constable Driver. The entries pertaining to 07.02.2008 and 09.02.2008 in log book Ex.DW1/C encircled at points Z and Z1 were in his handwriting. 4.5 DW5 is accused Kalu @ Neeraj. He deposed that on 07.02.2008, he, being an employee of one Amit Gandhi, was driving vehicle no. DL­4CU­9380. On that day, at around 2 p.m. or 2.30 p.m., he had taken the passengers from Gali No. 9, Vishwas Nagar. These persons were to be dropped at Phagwara, Punjab. On the way, the first toll tax was to be paid at Karnal, second toll tax was to be paid after crossing Ambala, and the third toll tax was to be paid just before Phagwara. He had paid toll tax on each toll booth and they issued receipts. He came back to Delhi on 08.02.2008 and on that day, toll tax was paid on each toll tax booth on the way from Fagwara to Delhi. He had handed over the toll tax receipts to the owner of the vehicle. Six photocopies of toll tax receipts were with him. The same were marked as mark A/DW5 (colly) and he volunteered, that the originals were with the owner.

Findings FIR No. 66/08 PS Nand Nagri. 19/67 5 I have heard learned Addl. PP for State and learned counsel for the accused and perused the record very carefully. 6 From evidence what remains undisputed and unchallenged is, that the deceased Diwan was murdered on 07.02.2008 at around 03.30 p.m. at 20 futa road, A Block, Harsh Vihar, Delhi­UP Border. The autopsy report states that the injuries no. 7 to 11 were sufficient in the ordinary course of nature to cause death of deceased Diwan Singh. Thus, it stands established that the death of Diwan was caused by the stab injuries given by the assailants. The question before the court is, whether the accused were the assailants and thus, had murdered the deceased?

7 As an evidence to bring home the guilt of the accused, apart from other evidence, the prosecution has mainly relied upon:­

(i)the testimony of the eye witness i.e. Chet Ram, who was examined as PW6.

(ii)the recovery of -

(a) blood stained knife Ex.P­12/P­1,

(b) blood stained T­shirt Ex.P­12/P­2,

(c) jeans pant Ex.P­12/P­3, at the instance of accused Jeet Singh. FIR No. 66/08 PS Nand Nagri. 20/67

(iii)medical and forensic evidence.

8 Let us first take the eye witness account as provided by PW­6.

9 PW­6 Chet Ram deposed that his brother Diwan and accused Kalu were known to each other. On 06.02.2008, he along­ with his brother Diwan was going to the work place of Diwan at Harsh Vihar. When they were passing in front of house of accused at Harsh Vihar, both the accused stopped them. Accused Kalu demanded money from his brother Diwan and on the refusal of Diwan to give money, they both started abusing them. Next day i.e. on 07.02.2008, they were going on their motorcycle bearing no. DL­7SAZ­5825 to the place of work from their house. At around 03.30 p.m., they saw one Maruti car coming from the side of the house of the accused. That Maruti car was at a distance of about 50 meters from the house of accused. That Maruti car hit their motorcycle and he, alongwith his brother Diwan, fell on the road. From that Maruti car, four boys came out. All were having knives in their hands. Both the accused persons, who were present in the court on that day, were unmuffled and the other two boys had muffled their faces. He deposed that he could identify those muffle faced boys, if shown to him. All the four boys, FIR No. 66/08 PS Nand Nagri. 21/67 including the accused persons, started stabbing his brother Diwan with knives. He started screaming, crying, stood near an electric pole and kept on crying. Meanwhile, he saw his brother Diwan standing up, walking a little distance and again fall down. All the four boys again landed knife blows on the back of his brother. Someone heard his screams and called the PCR. The PCR arrived and he, along­with his brother was taken to GTB Hospital by the police. He gave a written complaint Ex.PW6/A in his handwriting to the police which had his signatures at point A. In the hospital, his brother Diwan was declared as brought dead by the doctor. From the hospital he, along­with the police, went to the place of incident where the police observed a lot of blood lying on the spot. He pointed out the place of incident to the police. Site plan Ex.PW6/B having his signatures at point B was prepared by the police at his instance. The police lifted the blood with the help of cotton from and the same was kept in a container. On the spot, one shoe and one blue jacket (of track suit) belonging to his brother was lying and the same was seized by the police. Thereafter, he was brought to the police station and inquiries were conducted. He further deposed that he had seen the photographs Ex.PW3/A to Ex.PW3/H (objected to by learned defence counsel) and those FIR No. 66/08 PS Nand Nagri. 22/67 photographs showed the place of occurrence. He also identified the motorcycle no. DL­7SAZ­5825 Ex.PW6/P1. A parcel sealed with the seal of FSL was opened and from that parcel, one blue coloured track suit upper portion(jacket), having blood stains and cuts on different portions and one shoe of right foot were taken out and shown to the witness. He identified those articles belonging to his brother and the articles were exhibited as Ex.PW6/P2 and Ex.PW6/P3 respectively. 9.1 Another parcel sealed with the seal of FSL was opened and one shoe of left foot, one pair of socks, one leather jacket, one shirt, one underwear, one pant having belt and one vest were taken out and shown to the witness. The witness identified that those articles were worn by his deceased brother at the time of incident. Those articles were collectively exhibited as Ex.PW6/P4. The witness pointed out towards accused Jeetu and Kalu and stated that they were the assailants who had stabbed and killed his brother Diwan. 9.2 During his cross examination, he deposed that from the hospital, police had brought him to the spot. He had shown to the police the pole where he was standing. Except the site plan, no other document was prepared by the police. He was having a mobile on that day and the number of his mobile was 9582788785. He did not make FIR No. 66/08 PS Nand Nagri. 23/67 any call on that day from 03.30 p.m to 07.30 p.m. He had given a call to his brothers regarding the death of Diwan. He did not make a call on number 100. He was crying on the spot and his brother was lying in injured condition. On seeing this position, somebody gave a call to PCR. He had told that caller that the injured was his brother. The caller appeared to be a man of 45 years. He had not met any old aged person at that time. He had lifted his brother who was in pool of blood. His clothes were soaked with blood. He had offered his blood stained shirt to the police but they did not take the same in possession. His brother was removed to the hospital in PCR van and he had informed the PCR officials that the injured was his brother. He did not have any conversation with his injured brother. He did not try to save his brother when his brother was being assailed by the accused. None of the accused pointed out knife towards him. He had told the police as well as the person, who had checked his brother in the hospital that he was the brother of the injured. He had signed one register in the hospital. The motorcycle was being driven by his brother. The car had hit the motorcycle with force and the indicator of the motorcycle was broken and some damage was caused to the motorcycle. He did not recollect the exact damage caused to the motorcycle. In his presence, FIR No. 66/08 PS Nand Nagri. 24/67 the motorcycle was taken in possession by the police, however, his signatures were not obtained on the seizure memo. The track suit, shoe and motorcycle were not taken into possession by the police in his presence. Even the blood was not lifted in his presence. From the spot, he had accompanied the police to the police station and the police had again made inquiries from him. He did not know anybody by the name of Ct. Surender. He deposed that he had stated before the police in his complaint that both the accused present in the court had their faces unmuffled and other two boys had their faces muffled. He was confronted with his complaint Ex.PW6/A where it was not so recorded. He did not know the number of knife blows given by those four persons. He could not tell whether they had given one knife blow, ten knife blows or twenty knife blows and volunteered that they were inflicting knife blows. The persons who were in muffled faces might had given 3­4 knife blows. He did not remember whether he had sustained any injury after he fell from the motorcycle. He was not medically examined. Statement of his cousin Chaman and his brother Balwan was not recorded by the police in his presence and police had not obtained their signatures on any documents in his presence. He denied that he was not present at the spot or that he was introduced FIR No. 66/08 PS Nand Nagri. 25/67 later on as an eye witness. He denied that he had not seen the occurrence. He denied that he was not present at the hospital. He could not tell the time when the doctor had declared his brother 'brought dead'. The doctor had declared his brother 'brought dead' as soon as they reached the hospital. He had given his complaint Ex.PW6/A to SHO PS Nand Nagri. His attention was drawn to the statement where the words ''Shriman SHO Sahab" were mentioned but no PS was mentioned.

10 The testimony of this witness in the light of his cross examination has been assailed by learned defence counsel on many grounds. I shall deal with them one by one.

11 The first ground taken by learned defence counsel is, that had PW­6 been present at the time of occurrence, he would have fallen from motorcycle and would have sustained some injuries but this witness, during his cross examination, stated that he did not remember whether he had suffered any injuries and that he was not medically examined.

11.1 In this regard I find, that just because the witness did not remember suffering any injury from the fall or that he was not FIR No. 66/08 PS Nand Nagri. 26/67 medically examination, it cannot be said that the witness was not present at the spot especially in the circumstances of the present case, where there had been a murder and the attention of the police and doctors would have been on the case at hand and any minor injury which PW6 might have suffered from such fall might have been ignored or might have escaped attention of the police and doctors. Thus, just because this witness was not medically examined or his injuries were not shown, it cannot lead to a conclusion that this witness was not present at the place of occurrence. 12 The second ground taken by the learned counsel for accused is, the conduct of PW6 as emerging from his examination in chief and cross examination is highly unnatural. He submits that this witness did not raise any hue and cry, did not do anything to save his brother. He did not even throw stones at the assailants to save his brother. This is not the natural conduct of a person whose brother is being murdered in front of his own eyes. If the close relation such as brother in the present case, was being murderously attacked, it would have been natural for the PW­6 to intervene and try to save his brother. The witness admittedly did not do any such act which clearly FIR No. 66/08 PS Nand Nagri. 27/67 shows that the witness was not present at the scene of crime. 12.1 I have carefully considered this contention of learned counsel for the accused.

12.2 In the light of the cross examination and examination in chief of PW6, before dealing with the contention of learned counsel for the accused on the conduct of PW­6, it is necessary to see whether there can be a set pattern of conduct or reactions attributable to every individual in certain given circumstances. The answer to this question has been given by Hon'ble Supreme Court in Rana Pratap v. State of Haryana, AIR 1983 SC 680. The Hon'ble Supreme Court has held that :

Court should not expect set reaction from an eye­witness on witnessing the murder. Unless the reaction demonstrated by eye­witnesses so improbable or so inconceivable from any human being pitted in such situation, it would be unfair to dub his reactions as unnatural.

12.3 Considering a similar conduct of an eye witness, in State of Gujrat v. Bharwad Jakshibhai Nagribhai, 1990 Cri. LJ 2531:

1990 (2) Guj LH 263 (Guj) it was held :­ The Judge has observed that the conduct of 'A' does not appear to be natural because if such an incident had actually taken place, he would have intervened and would have tried to FIR No. 66/08 PS Nand Nagri. 28/67 save his uncle and would not have ran away. The inference drawn by the judge is absolutely unreasonable. The judge ought to have considered the fact that it would have been a foolish act on the part of the witness to intervene when number of persons who were armed with deadly weapons were attacking his uncle. Further he had forgotten the fact that it is difficult to decide how a witness would react in a situation where his relative is assaulted. Every witness reacts in his own way. Merely because he runs away to keep him away from the spot, it would not mean that his conduct is unnatural. There are not set rules of reaction and, therefore, to discard the evidence of the witness on the ground that he has not reacted in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Further, the observation made by the Judge that the conduct of the witness in that the witness has not informed the other persons except his mother is also unnatural and, therefore, his evidence should be discarded in unreasonable 12.4 In view of the above, I find that there cannot be a set pattern in which every individual will be expected to react in a given set of circumstances.

12.5 In case of a murderous attack such as the present one, a brave heart may jump in to intervene and try to save the victim from the assailants. It will make no difference to him whether he is related to the victim or not. Only a person of great courage would jump in to save somebody in the face of such an attack which may result in grave FIR No. 66/08 PS Nand Nagri. 29/67 or fatal injury to that person also. On the other hand, there could be a person who is not so brave and courageous as to intervene directly, but would still retain control of his senses and would try to raise alarm or call the authorities. There could still be a third situation, where a person may lose his nerves and become too petrified to react in any manner and may just go numb; and the list of probable reactions can be endless.

12.6 Coming onto the case in hand, the testimony of PW6 shows that he comes in the last category as discussed. He deposed that on seeing his brother being stabbed, he started screaming and crying, stood near an electric pole and kept crying. He did not even make a call to PCR and it was someone else (PW4) who did so. During his cross examination also, he deposed that he did not try to save his brother when his brother was being assaulted by the accused. 12.7 This testimony of PW6 clearly shows that he was too afraid to intervene and may be, seeing four persons attacking his brother with knives, his basic instinct of survival forced him to move at a safe distance where from, he watched helplessly and kept crying.

In my opinion, this conduct of PW6 cannot be said to be unnatural. Just because PW6 did not have it in him to risk his own life for his FIR No. 66/08 PS Nand Nagri. 30/67 brother and his instinct for survival was greater than his love for his brother's life, it cannot be said that his conduct was unnatural or that this witness is not credit worthy, or that he was not present at the spot. 13 The next ground, which the learned counsel for the accused has taken to prove that PW6 was not an eye witness to the incident is­ that this witness has claimed that he has lifted his brother who was in pool of blood. His clothes were soaked with blood. He had offered his blood stained shirt to the police but they did not take the same in possession. On the other hand, PW12 SI Ajay Singh Negi had admitted when they met Chet Ram (PW6) in the hospital, his clothes were not having any blood stains. Similarly, PW19 IO/ Insp. Satish Kumar had also deposed that there were no blood stains on the clothes of any of the brothers. This clearly shows that PW6 was not present at the spot. Had he been present at the spot, he would have certainly assisted in lifting of his brother and his clothes would have been stained with blood and seized by the police. 13.1 Upon this assertion, I find that the conduct of the witness at the time of incident was, that he had failed to show courage to save his brother from his murderers. It is also necessary to notice that FIR No. 66/08 PS Nand Nagri. 31/67 during his examination in chief, PW6 nowhere stated that he had helped in lifting his brother and putting him in PCR van. He had merely stated that PCR reached the spot and he alongwith his brother was taken to GTB Hospital by the police. It is only when in the later part of his cross examination, he stated that he had lifted his brother and his clothes were soaked in blood. Therefore, it is noticeable that the witness in his statement did not narrate any assistance provided by him in lifting his brother and putting him in van. It is only when the feeling of guilt that he failed to intervene to save his brother had been sunk in him , that he made this statement upon a query by the learned defence counsel. Therefore, I find that this statement of PW6 can only be regarded as an embellishment or embroidery created by PW6 in his cross examination, may be, to save whatever was left of his self esteem and his reputation in the eyes of his family. This finding is supported by the testimony of PW­19 who, in his cross examination, stated that PW6 told him that he had accompanied his brother in PCR and that his brother was picked up from the ground with the assistance of PCR staff and public. PW19 stated that he inquired from PW6 as to why he did not assist in lifting his brother and putting him in the PCR and PW6 had replied that he was perplexed at that time and because of FIR No. 66/08 PS Nand Nagri. 32/67 this, he did not do so.

13.2 Also is to be considered the testimony of PW9 HC Surender Singh. He had deposed that on receiving the wireless information about the stabbing of a person, he reached the scene of crime. He observed that one person was lying in injured condition having various stab injuries and bleeding. He met another person who disclosed that his name was Chet Ram and he was the brother of the injured. He took both of them to GTB Hospital in PCR van. In his cross examination, he denied that Chet Ram did not accompany the injured to the hospital. He deposed that only Chet Ram had accompanied the injured in PCR van.

13.3 Also is to be noticed is the first complaint made by PW6 which is Ex.PW6/A. Here again, he stated that PCR took him and his brother Diwan to GTB Hospital. Therefore, it is very much visible, that the complainant in his first statement and in his examination in chief had nowhere stated that he lifted his brother, put him in PCR van and then they were taken to GTB Hospital. What he had stated is, that he and his brother were taken to the hospital by PCR van. Seeing the state in which PW6 had reached i.e. the state of being shocked and petrified, it is very much possible that PW6 had grown so numb and FIR No. 66/08 PS Nand Nagri. 33/67 afraid that he was not even able to react in the manner so as to assist the police to pick up his injured brother and put him in PCR van. Thus, it cannot be said that there is grave contradiction in the conduct and the testimony of PW6 in comparison with the investigation of the police.

14 The next contention of learned counsel for the accused in order to assail the presence of PW6 at the time of commission of crime is, that he was unable to tell the number of times his brother was stabbed.

14.1 As discussed above, the state of mind of PW6 appears to be that he was in complete shock and was in fear for his life. In such circumstances, can a man be expected to keep the complete count of number of blows given by the assailants. The answer has to be in negative. The Hon'ble Supreme Court in Bhoginbhai Hirjibhai v. State of Gujrat, 1983 Cri. LJ 1096 (Guj) has held as under:­

1. Court does not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:­

(i) By and large a witness cannot be expected to possess a FIR No. 66/08 PS Nand Nagri. 34/67 photographic memory and to recall the details of an incident. It is not as if a vedio taps is replayed on the mental screen.

(ii) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often was an element of surprise. The mental faculties therefore, cannot be expected to be attuned to absorb details.

(iii) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(iv) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(v) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.

(vi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in mind in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(vii) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross FIR No. 66/08 PS Nand Nagri. 35/67 examination made by counsel and out of nervousness mix up facts, get confused regarding mix events, or fill up details from imagination on the spur of the moment. The sub­ conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him­perhaps it is a sort of psychological defence mechanism activated on the spur of the moment.

14.2 Therefore, on this ground, in the light of the above cited judgment, I rather find, that the testimony of PW6 in not giving exact number of blows which his brother has been given, makes him more credit worthy. Had he been tutored or a planted witness, it would have been easy for him, after going through the medical record, to state the number of stab wounds that were inflicted on his brother's body. However, during his cross examination, he did not state any exact number of blows given by the assailants to his brother and why he could not state the exact number of blows was answered by him by a volunteered statement 'they were inflicting the knife blows'. In the light of this examination in chief, I have also read the first statement of this witness which formed basis of FIR i.e. the complaint Ex.PW6/A. In Ex.PW6/A also, he stated that when his brother Diwan somehow got up and started to run then all the four assailants FIR No. 66/08 PS Nand Nagri. 36/67 including the two accused person stabbed his brother Diwan from behind. The testimony of this witness gains credibility from the medical report. This witness in his examination in chief had stated that four persons started stabbing his brother. His brother then stood up, went a little distance and again fell down. All the four boys again landed knife blows on the back side of his brother. If we see the post mortem report Ex.PW13/A, it reflects following ante­mortem stab injuries:­

7. Incised stab wound measuring 3.2 cm x 01cm on surface present slightly obliquely over the right upper outer chest, its lower, lateral acute angle is 6cm from right nipple and upper, medial, blunt angle is 10.8 cm below clavicle. The wound track goes inwards, downwards and medially cutting through the soft tissues of the chest wall only to a depth of 6.7 cm.

8. Incised stab wound 2.9 cm x 01. cm on surface, present obliquely over the right upper back, its medial lower acute angle is 3.2 cm away from the mid line and upper lateral blunt angle is 4.7 cm below right shoulder blade. The track of the wound goes inwards, downwards and medially and cutting the soft tissues and muscles of the back to a total depth of 5.5 cm.

9. Incised stab wound 3.2 cm x 01 cm on surface present obliquely over the left upper back. Its medial upper acute angle is 4.5 cm away from the mid line and lower lateral blunt angle is 13.5 cm below the left shoulder blade. The track of wound was inwards, slightly downwards and medially cutting the soft tissues and muscles on the back to a depth of 7 cm.

10.Incised stab wound measuring 3.3 cm x 01.cm present obliquely over the left lower back. Its lower medial blunt angle is 7.5 cm FIR No. 66/08 PS Nand Nagri. 37/67 from mid line and upper lateral acute angle is 7 cms away from the posterior axillary line. The track of the wound goes anteriorly, upwards and medially cutting through the muscles of the posterior back wall. It enters the left retroperitonial area of the abdomen, now cutting through the psoas muscle still going medially cutting the inferior vene­cava and nicks and aorta. Thus, making a total length of 9.6 cm. The entire track is haemorrhagic.

11.Incised wound measuring 7.2 cm x 0.2 cm x 1.2 cm present at the left elbow joint region, 1.5 cm above the tip of olecrenon and 29 cm below left shoulder joint.

14.3 Injuries no. 8, 9 and 10 are on the back. Injury no. 7 is on the chest. Now, if we look at the medical evidence detailing the injuries and co­relate it with the testimony of PW6, I find that the medical evidence lends credit to the testimony of PW6. 14.4 If the testimony of PW6 is testimony of an eye witness then there have to be injuries on the front as well as back of the torso of the deceased. Medical evidence shows that there was a stab wound on the chest and there were stab wounds on the back. There is the injury no. 11 which is at the elbow joint which may also have been suffered by the victim when he might have tried to save himself from frontal attack. This evidence clearly corroborates the testimony of PW6 that his brother had fallen down, he was attacked with knives and thereafter, when he somehow got up and walked a few steps, he FIR No. 66/08 PS Nand Nagri. 38/67 was stabbed in the back. Therefore, the medical evidence in the light of the testimony of PW6 takes us to the scene of crime and recreates the crime.

15 The next contention of learned counsel for the accused to assail the testimony of PW6 in order to prove that PW6 is a planted witness is, that PW6 could not disclose the number of Maruti car. 15.1 If the testimony of PW6 in the entire circumstances of the case is seen, I am of the opinion that it is very much difficult for a person, in the situation and mental state in which PW6 was, to record the number of the car. Therefore, merely because PW6 failed to disclose the number of the car in which the assailants came, it cannot be said that he was not present at the spot.

16 A further ground is taken, that none of the seizure memo prepared by the IO at the scene of crime bear the signatures of PW6 and thus, the presence of PW6 as a eye witness becomes doubtful. It is contended that had the PW6 been present at the scene of crime or accompanied the IO and back to the scene of crime, he would have been made a witness to the seizure memos.

16.1 In this regard, I find that there may be some force in this FIR No. 66/08 PS Nand Nagri. 39/67 contention of learned counsel for the accused. However, here again it is not a cardinal principle of investigation that the IO, in case of seizing articles from the scene of crime would necessarily have to make the eye witness a witness to the seizure memos also. It may be desirable to do so but it is not necessary to do so and it is a discretion of the IO to decide the person to whom he choose to make a witness to the documents prepared by him. In this case, just because the IO chose not to make PW6 a witness to the documents prepared by him at the scene of crime, it cannot be said the PW6 was not present at the scene of crime. The lapse of the IO to include a public person as a witness to the seizure memos cannot be said to be fatal to the case of the prosecution or to be a circumstance which would make the testimony of PW6 less credit worthy, if other circumstances establish his presence at scene of crime.

17 The next contention of learned counsel for the accused is that PW6 deposed that he had signed on the register of the hospital. However, no such record has been produced and furthermore, the MLC does not show PW6 to be a person who had brought the deceased to the hospital and therefore, this again establishes that PW6 was not an eye witness to the incident.

FIR No. 66/08 PS Nand Nagri. 40/67 17.1 I have carefully considered this contention of learned counsel for the accused.

17.2 With regard to the first contention that the hospital register was not produced, it is a lapse on the part of the IO where he failed to collect the hospital register and produce as an evidence but it cannot shake the testimony of the witness to the extent that the court would reach at a conclusion that witness was not present at the scene of crime.

17.3 As regards the fact that MLC record shows that the deceased was brought to the hospital by HC Surender Singh (PW9) and not by PW6, I find that a careful perusal of the MLC Ex.PW14/A reveals an interesting fact.

17.4 The MLC of the deceased Ex.PW14/A records, that the deceased was brought to the hospital by HC Surender Kumar. HC Surender Kumar was In­charge of PCR Van, in which the deceased was transported to the hospital. Interestingly, in this MLC the name, father's name, age and address of the deceased is recorded. Now, the question is, how could the doctor have come to know about the name, father's name, age and address of the deceased? What could be the FIR No. 66/08 PS Nand Nagri. 41/67 probabilities of HC Surender Singh knowing the name, father's name, age and address of the deceased?

17.5 In my opinion, given the fact that the deceased was fatally wounded and was declared brought dead at the hospital, it is almost impossible that HC Surender Kumar have known these details. The question is then how could the doctor have come to know about these details of the deceased? The only probable explanation is that when the deceased was taken to the hospital or was brought to the hospital, somebody from the family of the deceased or somebody known to the deceased was present at the hospital. In the light of the evidence before me, it becomes more probable that it was PW6, who had accompanied his brother in the PCR van and had disclosed to the doctor the personal details of the deceased. Thus, I find that the mere fact that the person who brought the deceased to the hospital has been recorded as HC Surender Singh and not the PW6, cannot establish that Chet Ram (PW6) was not present in the hospital when the deceased was brought to the hospital. Rather, the evidence points to the presence of Chet Ram.

17.6 Apart from this, it is also to be noticed, that PW9 HC Surender Singh who responded to the PCR call and had reached the FIR No. 66/08 PS Nand Nagri. 42/67 scene of crime had deposed that at the scene of crime, he found PW6 Chet Ram to be present and also found the deceased (according to him, at that time he found a person in injured condition) lying on the ground. No reasons have been given before the court why would PW9 depose that Chet Ram was present at the scene of crime. He is not an interested witness. He is not the IO who would have planted a false witness and his testimony in his cross examination has not been shaken.

18 Learned counsel for the accused has further contended that PW6 is an interested witness, being the brother of the deceased, and has falsely implicated the accused in this case and therefore, his testimony is not credit worthy.

18.1 With regard to this contention, I do not agree with the stand taken by learned counsel for the accused. I say so because the mere fact that a person is an interested witness or is related to the victim, his testimony cannot be disregarded if it is otherwise found to be trustworthy and corroborated by other evidence as has been held by the Hon'ble Supreme Court in M. Prasad v. State of Bihar, AIR 2001 SC 3031. The Hon'ble Supreme Court has held as under:­ FIR No. 66/08 PS Nand Nagri. 43/67 When evidence on record is trustworthy then rejection of evidence of witnesses on the ground of being interested witness unjustified.

18.2 Another important aspect is, that no motive has been attributed this witness to falsely implicate the accused. On the contrary, the motive for the accused to kill Diwan Singh had come up in the cross examination of PW19 when the counsel for the accused had suggested to the IO that the deceased used to tease a girl, namely Savita, who was the cousin of accused persons and in response to this, while denying this suggestion, the IO had stated that it had come during the investigation that Savita had an affair with the deceased Diwan Singh.

18.3 I accordingly find that on the one hand, the defence has not been able to assail the presence of PW6 at scene of crime or establish that he was a planted witness. On the other hand, from the discussion above, it stands established that PW6, whose testimony is corroborated by medical evidence, whose first statement reconciles with the medical evidence, whose presence was confirmed by PW9; whose presence is established by the fact that MLC which was recorded at the time when the deceased was brought to the hospital FIR No. 66/08 PS Nand Nagri. 44/67 has the detailed particulars of the deceased filled in it; was present at the scene of crime and was an eye witness.

19 Once this fact has been established that PW6 was an eye witness to the crime, it is now to be decided whether the testimony of PW6 establishes the accused as assailants who had committed crime. 19.1 PW6 had deposed that their motorcycle was hit by a Maruti car and he, along with his, brother fell on the ground. Four boys came out of the car and they had knives in their hands. He identified both the accused persons, present in the court, as two of those boys and, he stated that they were unmuffled and the other two boys were having their faces muffled. He deposed that he could identify those two muffle faced boys if shown to him. He also deposed that all the four boys including the accused persons, who were present in the court, started stabbing his brother. He saw that his brother stood up, went a little distance and again fell down. All the four boys again landed knife blows at the back of his brother.

20 Learned counsel for the accused has contended that this witness has contradicted his earlier statement. When he came before the court, he stated that two of the assailants were muffle faced and FIR No. 66/08 PS Nand Nagri. 45/67 two were unmuffled and the unmuffled ones were the accused persons, who were present in the court. However, in his initial statement to the police Ex.PW6/A he had not stated that two of the assailants were muffled. During his cross examination, he deposed that he had told to the police in his complaint that both the accused who were present in the court were unmuffled while other two had muffled their faces. He was confronted with his complaint Ex.PW6/A where it was not recorded that the other two accused persons had muffled their faces. 20.1 It is correct that in the initial complaint Ex.PW6/A he had not stated whether the assailants had muffled their faces or were unmuffled. However, it is also noteworthy that in the very initial statement, he had named both the accused persons as two of the four assailants. This statement had become the basis of recording of FIR upon which the IO made an endorsement Ex.PW2/1. Had the accused been not present at the place of incident, he would not have made a named FIR. This becomes more important because PW6 had no reason to falsely implicate the accused. Therefore,it is a minor variance or improvement in the testimony of PW6 and it cannot have the effect of his entire testimony being thrown out if otherwise, his testimony appears to be reliable.

FIR No. 66/08 PS Nand Nagri. 46/67 20.2 The defence has not been able to assail the presence or the testimony of PW6 in this case. The account of PW6 clearly appears to be an account of a person who had witnessed this murderous crime and whose account is corroborated by other evidence. Recovery of a full sleeve t­shirt, jeans and knife at the instance of accused Jeet Singh.

21 PW12 had deposed that after his arrest, the accused Jeet Singh made disclosure statement and the same was exhibited as Ex.PW12/A2. He further deposed that on 10.02.2008, when he was present at PP Harsh Vihar, the IO along with accused Jeet Singh came to PP Harsh Vihar in a private Qualis vehicle. The IO shared the information that the accused Jeet Singh @ Jeetu, while going towards Haridwar, had thrown the weapon of offence along­with his clothes near Meerut bypass. He constituted a team consisting of himself and Ct. Udaivir. He along with the IO, Ct. Udaivir and the accused proceeded towards Meerut Bypass. 03­04 kms before the Meerut bypass, accused Jeet Singh got the vehicle stopped. He disclosed that the articles were thrown by him in a plastic polythene. IO got the vehicle stopped and requested 4­5 public persons to join the FIR No. 66/08 PS Nand Nagri. 47/67 investigation and the raiding party but none was willing to join. Accused Jeet Singh took them about 100 yards down the road and pointed towards a polythene which was lying near the grass . The IO opened the polythene and found a blue colour full sleeves t­shirt on which 77 was written. One blue colour jeans was also found in the said polythene. Both were found to be having dark coloured brown stains which appeared to be bloodstains. Between the said clothes there was a knife. IO prepared sketch of knife (Ex.PW12/B). The knife was converted into a parcel and sealed with the seal of SK and seized vide memo Ex.PW12/C. The T shirt and the jeans were also converted into a parcel and same were sealed with seal of SK and the parcel was seized vide memo Ex.PW12/D. He identified the knife to be the one recovered at the instance of accused Jeet Singh. He also identified the t­shirt and jeans recovered at the instance of accused Jeet Singh @ Jeetu. The T­shirt was exhibited as Ex.PW12/P2 and the jeans was exhibited as Ex.PW12/P3.

21.1 During his cross examination, he deposed at about 10.30 a.m., that they left the chowki for going to Meerut bypass and they came back at about 03.30 p.m. He had never made any departure or arrival entry. He denied that they had not gone to Meerut bypass in FIR No. 66/08 PS Nand Nagri. 48/67 Qualis vehicle or that nothing was recovered at the instance of accused from Meerut bypass. He denied that the seizure memo was prepared in PP Harsh Vihar and not at the spot (alleged place of recovery). He could not tell which police station would have jurisdiction over the place of recovery. He denied that no disclosure statement was recorded in the police station.

22 The IO, who is PW19 deposed that on 10.02.2008, the accused Jeet Singh led the police party consisting of him, Ct. Udaivir and SI Ajay Singh Negi to a place which was 03­04 kms prior to Meerut bypass. Accused Jeet Singh got the vehicle stopped and informed that he had thrown his clothes and knife in the nearby area. Thereafter, at the instance of accused Jeet Singh, one polythene bag which was lying at a few distance away from the road side was picked up. He opened the polythene bag and found one knife which was having blood and was rustic (sic) at some places. One blue color jeans pant and one blue colour t­shirt were recovered from that polythene. He observed that '77' was written on the front side of the t­shirt. He prepared sketch, Ex.PW12/B, of the recovered knife and converted the same into a cloth parcel vide seizure memo Ex.PW12/C. He converted the clothes and polythene into a cloth parcel and seized the same vide FIR No. 66/08 PS Nand Nagri. 49/67 seizure memo Ex.PW12/D. 22.1 During his cross examination, he deposed that on 10.02.2008, at about 10.20 a.m., they left for Meerut in Qualis vehicle. He did not remember the registration number of Qualis vehicle and stated that it was arranged by a beat constable and it belonged to an acquaintance of beat constable but he could not tell the name of that beat constable. He was not aware in which area of PS Meerut, the place of recovery fell. He deposed that since it was a common thorough place (sic), people were coming and going. The articles in parcel (potli) were laying at a distance of 10 feet from the main road. They did not try to join the local police in their investigation. They did not pay any charges for Qualis vehicle as it was provided by an acquaintance of a constable. He explained that they did not take a government vehicle because they were short of time and certain official formalities would have been required to be completed which would have resulted in loss of time. He denied that they did not visit Meerut or, that no clothes or knife were recovered at the instance of accused Jeet Singh. He denied that no memos were prepared by them. He denied that no disclosure statement was given by the accused or, that the signatures of the accused were obtained on blank papers or, FIR No. 66/08 PS Nand Nagri. 50/67 the same had been converted into a disclosure statement. 23 Learned counsel for the accused has contended that the recovery at the instance of accused is entirely unreliable and thus, cannot be used as a piece of evidence. He has contended that it has been stated by PW12 SI Ajay Singh that the recovery at the instance of accused was effected 100 yards from the road. On the other hand, the IO who appeared as PW19 deposed that it was effected from 10 feet from the main road. Therefore, firstly there is a contradiction between the statements of these two witnesses of recovery. Secondly, the case of the prosecution based on disclosure statement is that the accused from a running bus threw out the polythene bag containing the above said articles. He has therefore contended, that by no stretch of imagination, it can be expected that by such throw, the polythene bag containing the articles would have landed 100 yards from the road. He has further contended that the police has not proved any DD entry of the departure to Meerut for the purpose of recovery and arrival at Delhi after recovery. The details of the vehicle used by the police to go to Meerut for recovery of articles have not been disclosed. It is further contended that as no independent witnesses were joined in the FIR No. 66/08 PS Nand Nagri. 51/67 proceedings of recovery and the local police was also not informed. He has thus contended that the recovery becomes doubtful. 23.1 Learned counsel for the accused has also challenged the recovery on the ground that the documents Ex.PW19/D1, which is a forwarding letter for the exhibits issued by IO to the FSL, at sl no. 10 shows that the blood stained knife was recovered on 10.02.2008 from accused Jeet Singh from his house at Harsh Vihar, Phase­II and therefore, the recovery of this knife could not have been made from Meerut bypass as alleged by the prosecution.

24 With regard to the first contention that the recovery was effected 100 yards from the road, I find that the same is not supported by the evidence on record. The seizure memos Ex.PW12/C and Ex.PW12/D merely state that the recovery was effected at a place around 3­4 kms prior to the Meerut bypass on Delhi­Haridwar Road, from the left side of the road. It is during his examination in chief, that the PW12 had deposed that this recovery was effected around 100 yards down the road. This testimony of this witness has not to be read in isolation but has to be read in continuity with his previous and subsequent statements. Before stating that the accused Jeet Singh had FIR No. 66/08 PS Nand Nagri. 52/67 taken them around 100 yards down the road and pointed towards a polythene bag which was lying in grass; this witness had stated that 3­ 4 kms before they reach Meerut bypass, the accused Jeet Singh got the vehicle stopped and disclosed that the articles were thrown by him in a plastic polythene. If in this context, the statement of the witness is read, it appears that 100 yards down the road would mean that after stopping the vehicle, the police party came back around 100 yards towards the direction from which it was coming and then, the articles were discovered. On the other hand, the statement of the IO, during his cross examination, specifically talks about the distance from the road and he states that the parcel (potli) was lying at a distance of 10 feet from the main road.

24.1 Therefore, firstly I find, that there is no contradiction between the statements of PW12 and PW19 because PW12 states about walking down the road and PW19 talks about the distance of 10 feet from the road. Secondly, as regards the parcel being thrown from a running bus to a distance of 100 yards is concerned, I find that it is not what has been stated by the witnesses in the evidence and it is quite possible that if something is thrown from a running bus, it may land around 10 feet from the road. Therefore, on this ground, the FIR No. 66/08 PS Nand Nagri. 53/67 recovery cannot be said to be unreliable.

24.2 As regards the allegation that no DD entries were made regarding the departure for recovery and arrival after recovery I find, that these questions were put to PW12 who had categorically stated that he himself had not made any DD entry because he was accompanying the IO, but the IO might have made some DD entries. Surprisingly, it was for the IO to answer about any departure or arrival entry being made, but no questions in this regard were asked from the IO. Therefore, on this ground the defence has failed to assail the recovery.

24.3 Another contention is, that no details of Qualis vehicle, which was used to go to Meerut for recovery, were given. It is correct that the said details should have been recorded by the IO but the lapse on the part of the IO to record these details cannot disprove the factum of the activity being effected, if it is otherwise being proved. 24.4 It has also been contended that the accused Jeet Singh had not made any disclosure statement and; the prosecution has failed to prove any disclosure statement made by accused Jeet Singh. In this regard, I find that the place of arrest and the time of arrest of accused FIR No. 66/08 PS Nand Nagri. 54/67 Jeet Singh has not been challenged by the defence. So far as the disclosure statement Ex.PW12/A2 is concerned, mere suggestions were given that the accused had not made any disclosure statement or that his signatures were obtained on blank papers. A mere suggestion to this effect would be of no help especially when the recovery was effected. Accused Jeet Singh was arrested on 08.02.2008, the disclosure statement (Ex.PW12/A2) of the accused was recorded on the same day and the recovery was effected on 10.02.2008. There is not much gap between the time of recovery and arrest of the accused. This gives credence to the recovery.

24.5 It is also to be seen that there is consistency in the testimonies of PW12 and PW 19 with regard to the time of departure from Delhi and arrival at Delhi.

25 Learned counsel for the accused has emphasized on the fact that as no public persons were joined in the investigations, it makes the recovery suspicious.

25.1 I find that PW12 had deposed that the IO had requested the public persons to join the investigation, but none agreed. This testimony of PW12 has been entirely unrebutted. FIR No. 66/08 PS Nand Nagri. 55/67 25.2 Therefore, I find that the defence has not been able to assail that the facts that the disclosure statement was given by the accused Jeet Singh and recovery was effected at the instance of accused Jeet Singh.

25.3 It is correct that there is discrepancy which is visible in Ex.PW19/D1. However, when the IO was confronted with this document, the IO should also have been given an opportunity to explain this discrepancy. The defence did not broach on this subject and in absence of any explanation being sought from the IO, merely because this discrepancy is visible, in view of the other evidence, I am not inclined to disregard it as a major flaw which would make the recovery dis­believable.

26 However, it is well settled law that only that portion of the confession given to the police is admissible u/s 27 of the Evidence Act pursuant to which some recovery is effected. From the disclosure statement of the accused Jeet Singh, the relevant portion, if read is as under:­ I changed my blood stained clothes and kept the knife in my possession in the folds of the clothes and kept them in a polythene bag. Fearing the police, I reached Mohan Nagar Bus Adda and from there I boarded a bus going towards Haridwar. When the FIR No. 66/08 PS Nand Nagri. 56/67 bus reached 40­45 kms away from Ghaziabad, from the running bus, at an isolated place, I threw out that polythene bag...... I can get recovered the knife used by me in the incident and my blood stained clothes, which have been kept in polythene bag and thrown them from a running bus while going towards Haridwar. I do not know the name of that place but that was around 40­45 kms from Ghaziabad. I can accompany you and identify that place and help you in recovery of those articles. 26.1 From this disclosure/ confessional statement, the only portion which can be read in evidence is, that the accused had stated before the police that he could get recovered a polythene bag which would be found containing his blood stained clothes and a knife. Therefore, the evidenciary value of this recovery is, that at the instance of the accused, a blood stained knife Ex.PW12/P1, a jeans pant Ex.PW12/P2 and a T­shirt Ex.PW12/P3 were recovered. 27 These exhibits were sent to FSL and the knife was also sent for subsequent opinion of the doctor. The report of the FSL is Ex.PX. The subsequent opinion of the doctor is Ex.PW13/C and the sketch of the knife drawn by the doctor is Ex.PW13/B. 27.1 The subsequent opinion, Ex.PW13/C, of the doctor is, that the injuries upon the body of the deceased which are mentioned at sl. no. 7, 8, 9, 10 and 11 of the postmortem report were possible with FIR No. 66/08 PS Nand Nagri. 57/67 the knife Ex.PW12/P1. He also opined that the cuts on the clothes could also be possible by the use of this knife. He was cross examined on this opinion and he stated that such injuries are possible with similar knife of the same dimensions. He also deposed that he could not comment on whether, the injuries no. 7 to 11 involved more than 4­5 knives. He further deposed that it was a single edged weapon by which injuries no. 7 to 11 were caused.

27.2 Therefore, the subsequent opinion of the doctor has established that injuries no. 7 to 11 might have been caused by a weapon such as the weapon Ex.PW12/P1, recovered at the instance of accused Jeet Singh. However, whether it could be the weapon which caused the injuries to the deceased needs more evidence. 27.3 The FSL report Ex.PX states that knife Ex.PW12/P1 in the FSL was marked as mark E. The cut marks on the shirt Ex.E­2 (the shirt belonging to the deceased which he was wearing at the time of his murder) which were Q1, Q2, Q3, Q4 and Q5 and on his baniyan (vest) Ex.E­3 which were Q6, Q7 and Q8 and on the jacket Ex.E­5 which were Q­9, Q10, A11, Q12 and Q13, were found to be corresponding to each other in relative position, shape and size. Then with the help of knife Ex.F (Ex.PW12/P1), test cut marks were made FIR No. 66/08 PS Nand Nagri. 58/67 on the shirt which were T1 and T2 and they were also made on the jacket which were T3 and T4. These test cut marks were compared with the crime cut marks Q1 to Q13 and it was found, that these could have been caused by sharp edged weapon similar to knife Ex.F (Ex.PW12/P1).

27.4 Therefore, from the opinion of the doctor as well as FSL, it stands established that the knife Ex.PW12/P1 recovered at the instance of accused Jeet Singh could be one of the weapons used in offence. Thus, the knife Ex.PW12/P1 in my opinion is connected to crime.

Defence Evidence and Alibi 28 The defence examined four witnesses. DW1 to DW4 are the witnesses who were called to prove the log book entries of the police vehicle Gypsy of the IO. However, nothing material, which could help the accused persons in any manner, has come out from these log book details of the Gypsy.

28.1 DW5 is the accused Kalu @ Neeraj. He deposed that on 07.02.2008, being an employee of Amit Gandhi, he was driving vehicle no. DL­4CU­9380. On that day, at around 2 p.m. or 2.30 p.m., FIR No. 66/08 PS Nand Nagri. 59/67 he had taken the passengers from Gali No. 9, Vishwas Nagar. These persons were to be dropped at Phagwara, Punjab. He had paid all toll taxes while going to Phagwada and while coming back from Phagwada. The photocopies of toll tax receipts were marked as Mark A/DW5 (colly).

28.2 During his cross examination, he deposed that on 07.02.2008 at around 10 a.m., he went to Dixit Travels and remained present at Dixit Travels. He deposed that he had no proof to confirm that he left the Delhi at around 2.30 p.m. and volunteered, that the prosecution may call the passengers he carried in the vehicle. He denied that he had fabricated false evidence with a view to save himself by taking wrong plea of alibi or that on 7.2.2008 around 3 or 3.30 p.m., he alongwith his associate Chattar Sain, Sanjay and his brother Jeet Singh @ Jeetu had committed murder of Diwan at A Block, Harsh Vihar, Delhi. He denied that that it was not impossible that after commission of murder at above referred place at 3.30 p.m., he might have taken passengers to Phagwara.

29 Now the question is, whether accused Kalu has succeeded in proving his alibi? In my opinion, the answer is in negative. FIR No. 66/08 PS Nand Nagri. 60/67 29.1 Firstly, to prove his alibi, the accused Kalu could have examined the owner of taxi. He did not do so. Secondly, he could have examined the passengers which he had transported from Delhi to Phagwada. However, the accused not only failed to do so but tried to put this onus upon the prosecution.

29.2 The most important point is that there is a great possibility that the accused Kalu after the commission of crime at around 3/3.30 p.m. could have left Delhi and transported the passengers from Delhi to Phagwada. I say so because, the accused had placed on record the photocopies of toll tax receipts which are collectively marked as mark A/DW5.

29.3 On 07.02.2008 i.e. the day on which the murder had taken place at around 03/3.30 p.m., the toll slip for Karnal shows the time of 08.15 p.m.. Unless the accused Kalu explains how it could have taken almost 06 hours and 15 minutes to reach Karnal from Delhi or, what were the circumstances which led the accused taking a long period of 06 hours 15 minutes in travelling from Delhi to Karnal, the testimony of accused Kalu that he left Delhi at about 02.30 p.m. has to be taken to be false.

FIR No. 66/08 PS Nand Nagri. 61/67 29.4 In normal circumstances, the maximum time taken to travel from Delhi to Karnal can be 4 to 4 ½ hours. So if the accused had left Delhi at around 02 /02.30 p.m., the accused would have reached Karnal at around 06/06.30 p.m.. The fact that the accused reached Karnal at around 08.15 p.m. shows that the accused must have left Delhi at around 04 p.m. i.e. after the crime had already been committed. Therefore, I find that the accused Kalu has failed to prove that at the time of incident, he was not present in Delhi and failed to prove the alibi he had raised.

30 Another contention which has been raised by learned defence counsel is, that the eye witness PW6 has not been able to specify that which of the accused had caused what injury and therefore, it has not been established by the prosecution that the injuries which were caused by the accused persons, had resulted in the death of deceased Diwan Singh.

30.1 In this regard, firstly I find that the medical evidence which is in the form of autopsy report Ex.PW13/A establishes that the injuries no. 7 to 11 were sufficient in the ordinary course of nature to cause death of deceased Diwan Singh. Secondly, the eye witness has FIR No. 66/08 PS Nand Nagri. 62/67 clearly deposed that all the four assailants, including the two accused present before the court, when they got down from the vehicle, were having knives in their hands. He had further deposed that immediately on alighting from the vehicle, they started stabbing his brother Diwan. This conduct of the accused where all of them came out armed with knives and immediately started landing knife blows upon the deceased Diwan Singh clearly shows their common intention to kill the deceased. Thus, in view of Section 34 IPC, once this common intention has been established, it is not necessary for the prosecution to prove which accused landed which blow and the effect of such blows.

31 Thus, I find that testimony of PW6, who was an eye witness to the incident, beyond all reasonable doubts, brings home the guilt of the accused. This testimony, which was sufficient in itself to prove the case of the prosecution beyond all reasonable doubts is not only corroborated by autopsy report Ex.PW13/A, but is also supported by the recovery of knife Ex.PW12/P1 which was recovered at the instance of accused Jeet Singh. This knife has been connected to the crime by medical and forensic evidence. Thus, I find that the prosecution has, beyond all reasonable doubts, proved that both the FIR No. 66/08 PS Nand Nagri. 63/67 accused along with their two other associates at around 03.30 p.m. at 20 futa road, A Block, Harsh Vihar, Delhi­UP Border had committed the murder of Diwan Singh. Both the accused are accordingly convicted under section 302 IPC r/w section 34 IPC.

Be heard separately on the point of sentence.

Announced in open court (Parveen Singh) today on 29/04/2014. Additional Sessions Judge­03 (This judgment contains 64 pages (NE): Karkardooma Courts, and each page bears my signatures.) Delhi.

FIR No. 66/08
PS Nand Nagri.                                                           64/67
        IN   THE   COURT   OF   SH.   PARVEEN   SINGH:   ADDITIONAL
SESSIONS            JUDGE­03: KARKARDOOMA COURTS: DELHI 



State Vs. Jeet Singh @ Jeetu, etc.
FIR No.66/08
U/s 302/34 IPC
P.S. Nand Nagri 

                          ORDER ON SENTENCE

07/05/2014

The accused namely Jeet Singh @ Jeetu and Kalu @ Neeraj have been convicted in FIR No.66/08, u/s 302/34 IPC, P.S. Nand Nagri, for the murder of one Diwan Chand.

Arguments on the point of sentence have been heard. It has been contended by the Ld. Prosecutor that the convicts had committed a broad day light murder of Diwan Chand. The murder was committed in a pre­planned manner and both the convicts along with their two other associates had murdered Diwan Chand in a gruesome manner and thus, the convicts who had not shown any respect to life of an individual or to law, should be awarded maximum penalty of death.

On the other hand, Sh. K.L. Juneja, Ld. counsel for the convicts has contended that both the boys are young persons and below the age of 30 and FIR No. 66/08 PS Nand Nagri. 65/67 thus, a great chance of their being reformed. He has further contended that the convicts are first time offenders and therefore, minimum punishment possible should be awarded.

I have considered the rival submissions.

­2­ Starting from Bachan Singh's case, it has been time and again held by the Hon'ble Supreme Court that death penalty should be awarded in the rarest of rare cases.

In the present case, the manner in which the crime was committed in broad day light is an aggravative circumstance. However, the fact that at the time of commission of crime both the convicts were young and further that there is no previous crime record are the mitigating circumstances. I have weighed the aggravating and mitigating circumstances and I find, that even the manner in which the crime was committed, would not put the crime in the category of rarest of rare cases. On the other hand, the young age of the convicts is a mitigating circumstance where there can be a possibility of these convicts being reformed. Thus, the State's plea of granting death sentence is accordingly declined. Both the convicts are accordingly sentenced as under:­

1. Convict Jeet Singh u/s 302/34 IPC is sentenced to imprisonment for life and further to pay a fine of Rs.10,000/­ and in default, SI for one year. FIR No. 66/08 PS Nand Nagri. 66/67

2. Convict Kalu @ Neeraj u/s 302/34 IPC is sentenced to imprisonment for life and further to pay a fine of Rs.10,000/­ and in default, SI for one year. File be consigned to record room.

Announced in open court (Parveen Singh) today on 07/05/2014. Additional Sessions Judge­03 (This order on sentence contains 02 pages (NE): Karkardooma Courts, and each page bears my signatures.) Delhi.

FIR No. 66/08 PS Nand Nagri. 67/67