Delhi District Court
State vs . : 1) Sunil Kumar on 4 July, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 102/17
FIR No. : 329/16
U/s : 304(II)/34 & 404 IPC
P.S. : Swaroop Nagar
State Vs. : 1) Sunil Kumar
S/o Sh. Kanta Parshad
R/o E-22, Shardanand Colony,
Bhalswa, Delhi.
2) Lucky
S/o Sh.Ram Singh Kapoor
R/o D-381, Gali No.15,
Swami Shardanand Colony,
Bhalswa, Delhi.
3) Surender
S/o Gajender
R/o G-13, Swami Shardanand
Colony, Bhalswa, Delhi.
Offence complained of : 304(II)/34 & 404 IPC
Plea of accused : Pleaded not guilty
Final Order : Accused Sunil and Lucky
acquitted.
Accused Surender guilty.
Date of committal : 20.02.2017
Date of Judgment : 04.07.2018
JUDGMENT
1. On 04.08.16 at 5.30 p.m., information was received that a person is lying unconscious at Street No.9, Swaroop State Vs. Sunil Kumar etc. SC NO: 102/17 1 Nagar. ASI Bijender reached there and find truck no. HR55W 9016 parked. Some blood was lying behind the truck and also in the space between the wall and the truck. Injured had already been shifted to BJRM Hospital by PCR Van. In the meanwhile, information was received from BJRM Hospital vide DD No.20 A that patient brought have been declared deed. Crime Team visited the scene of crime and photographs were taken. Dead body was identified as of Irfan S/o Wasiludeen. No eye witness was found at the spot. Later on, Phool Singh, at whose rehari incident had taken place and Rahul, who was accompanying Irfan at the time of incident were interrogated and their statements were recorded. The mobile phone of deceased which was missing, was put on surveillance. It was found that one Surender is using the mobile phone of deceased. The mobile phone of deceased was recovered from accused Surender. Accused Sunil Kumar and Lucky were apprehended. They were identified by Phool Kumar and Rahul as the persons who assaulted Irfan and caused his death. Both the accused persons got recovered their clothes, which they were wearing at the time of incident. After completion of investigation, the charge sheet against the accused persons was filed. Ld. M.M. after complying with the provisions Section 208 Cr.P.C., committed the case to the Sessions Court as the offence State Vs. Sunil Kumar etc. SC NO: 102/17 2 punishable under Section 302 IPC is exclusively triable by the Sessions Court.
2. Accused Sunil and Lucky were charged for the offence punishable U/s 304 (II) IPC read with Section 34 IPC and accused Surender was charged for the offence punishable under Section 404 IPC. All the three accused pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
3. Shishr Malhotra Nodal officer Aircel Ltd., was examined as PW-1. He proved the record of mobile phone No.8285078968. As per the customer application form Ex.PW1/A accompanied by photocopy of voter ID card Ex.PW1/B this number was alloted in the name of Sh. Rohit S/o Sh. Hari Nath. The call detail record of this number for the period 04.08.2016 is Ex.PW1/C.
4. He also proved the record of Mobile phone No.7503078537. As per the customer application form Ex.PW1/D accompanied by Photocopy of Aadhar Card Ex.PW1/E, this number was alloted in the name of Irfan S/o Sh. Wasludin. The call detail record of this number for the period 04.08.2016 is Ex.PW1/F. The certificate u/s 65B Evidence Act with respect to the call detail record of both the number is Ex.PW1/G. The cell ID chart for both the number is Ex.PW1/H. All these documents were handed over to the State Vs. Sunil Kumar etc. SC NO: 102/17 3 IO through forwarding letter Ex.PW1/I.
5. During cross-examination for the accused Sunil he stated that he is not in possession of any such letter vide which he is appointed as Nodal Officer. He stated that he has brought the special power of attorney photocopy of which is mark X-1. This power of attorney authorises him to depose on behalf of company and produce the documents. He does not possess any diploma or degree in any telecommunication functions. The server of Aircell mobile services is installed in Gurugram. He has not verified the record of the above said two mobile phone numbers from the server incharge as there is no procedure to get it verified. He is not aware if the server was working regularly or without any interruption with regard to the record submitted by him. He admitted that the record produced by him is not attested by anybody including senior officer and bears his signatures only and the seal of the company. He denied the suggestion that record has been manipulated. He denied the suggestion that record produced by him is not legally admissible u/s 65B of Indian Evidence Act. No question was put to him on behalf of the other two accused persons.
6. Saurabh Aggarwal was examined as PW-2. He is the Nodal Officer Vodafone Mobile services. He brought the record of mobile phone No.9643657606. As per the customer State Vs. Sunil Kumar etc. SC NO: 102/17 4 application form Ex.PW2/A annexed with photocopy of Aadhar card Ex.PW2/B this telephone number was alloted in the name of Bhagat Singh S/o Sh.Suresh Kumar. The call detail record of this number for 04.08.2016 is ExPW2/C. The certificate u/s 65B Evidence Act is Ex.PW2/D.
7. He has also proved the record of mobile phone No.9811769047. As per the customer applciation form Ex.PW2/E accompanied by photocopy of the voter ID card Ex.PW2/F this phone number was alloted in the name of Imran S/o Sh.Wasludin. The call detail record of this number for 04.08.2016 is Ex.PW2/G. The certificate u/s 65 B Evidence Act is Ex.PW2/H.
8. During cross-examination by the defence he stated that he has no knowledge if the company has passed any resolution for appointing him as Nodal Officer. He does not possess any diploma, degree in any telecommunication. Server of Vodafone mobile phone services is installed in Pune. He has not verified the record submitted in this case from the server Incharge. He admitted that the record exhibited by him is not attested by anybody including superiors of the company and bears his signatures only and the seal of the company. He denied the suggestion that the record has been fabricated or that the record is not admissible u/s 65B Indian Evidence Act. No question was put State Vs. Sunil Kumar etc. SC NO: 102/17 5 to the witness on behalf of accused Lucky and Surender.
9. Inspector Manohar Lal was examined as PW-3. He prepared the scaled site plan at the instance of Inspector Rajiv Ranjan and proved the same as Ex.PW3/A and Ex.PW3/B.
10. During cross-examination on behalf of the accused persons he stated that he is not maintaining any separate register regarding the places visited by him or keeping the record of scaled site plans prepared by him. After receiving the call from Inspector Rajiv Ranjan he visited PS: Swaroop Nagar. He does not remember if IO lodged any departure entry when they left the PS: Swaroop Nagar. In his presence Inspector Rajiv Ranjan did not make any arrival entry in the police station when they reached at the police station. He had shown point A in the exhibit as the place of occurrence. It is 3230 cm away from the wine and beer shop towards western side. He denied the suggestion that he had not prepared the correct site plan. He cannot tell the exact distance between point A and street No.9 from where the dead body was recovered.
11. Wasiluddin was examined as PW-4. He deposed that on 04.08.2016 at about 9 pm while he was present at his home one police officer namely Sombir came at his house and inquired from him about his son Irfan and motorcycle State Vs. Sunil Kumar etc. SC NO: 102/17 6 No:7692. He told the police official that Irfan had taken the motorcycle. Police had shown him photographs in his mobile phone and he identified the same as of his son Irfan. The police official told him that someone had assaulted his son Irfan near wine shop, Burari Road, Swaroop Nagar and due to that Irfan had expired. He accompanied that police officer to BJRM hospital and identified the dead body of Irfan. He also accompanied that police official to Burari Road Swaroop Nagar near the office of Ex-MLA Sh. Devender Yadav where he found motorcycle of his son being parked. Next day the dead body was handed over to him after the post mortem. The motorcycle was given to him by the police and was taken away by the In-laws of his son Irfan. He identified the photographs of motorcycle as Ex.PW4/A.
12. During cross-examination for accused Lucky he denied the suggestion that he had not received any information from HC Sombir and did not visit the place situated near the office of Ex-MLA.
13. During cross-examination for accused Sunil he stated that the aforesaid motorcycle was registered in the name of his son Irfan. He has not brought the registration certificate of the motorcycle. Office of Ex-MLA where motorcycle was found parked is about 1 km from his residence. He was only shown the photograph of his son and not of the motorcycle State Vs. Sunil Kumar etc. SC NO: 102/17 7 by HC Sombir. In his presence police did not take any photograph of the motorcycle. HC Sombir did not disclose to him as to how the motorcycle belonging to his son reached near the office of Ex-MLA Sh. Devender Yadav. He cannot tell the distance between the liquor shop and the office of Ex- MLA Sh. Devender Yadav. He identified the dead body of his son in the hospital before the post mortem. No question was put to the witness on behalf of accused Surender.
14. Sh. Ali Sher was examined as PW-5. He deposed that on 04.08.2016 at about 9 pm while he was present at his house his nephew Javed came to his house and informed that he had seen the Bullet motorcycle belonging to his son- in-law Irfan found parked near the office of Ex-MLA Sh. Devender Yadav, Burari Road, Swaroop Nagar. Javed had also informed him that some person had been murdered. On this information he left his house. On the way he received the phone call of Wasiluddin father of Irfan who informed him that Irfan had been murdered. He went to Burari Swaroop Nagar near the office of Ex-MLA Devender Yadav. Police official had shown him the photograph in a mobile phone which he identified as of Irfan. Police official also informed him that Irfan had been assaulted near wine shop as a result of which he had expired. On 05.08.2016 he went to the mortuary of BJRM Hospital where the post mortem was State Vs. Sunil Kumar etc. SC NO: 102/17 8 conducted and after post mortem the dead body was handed over to his father Sh. Wasiluddin. Irfan was using mobile phone make Samsung having double Sim No.9811769047 & 7503078537 and his mobile phone was not recovered at that time.
15. He also deposed that on 04.08.2016 in the morning hours i.e. at about 10:30 am his son-in-law Irfan met him at Bhalswa Ganda nala pul on his bullet and told him that after parking his motorcycle at home he would go to the shocker repair shop at Jahangir Puri. At about 12:00 or 12:30 noon he went to the shop of his son-in-law Irfan but till that time Irfan had not reached the shop on which he made a telephone call over the mobile phone of Irfan and Irfan told him that he is going to Punjab National Bank for some work with his friend Rahul. He waited for Irfan upto 2:00 pm at his shop but Irfan did not reach the shop. Thereafter, he left the shop. At about 9:00 pm Javed came to his house and gave this information.
16. During cross-examination for accused Lucky he denied the suggestion that he had not received any information from Javed or that he had not visited the place near the office of Ex-MLA. He denied the suggestion that he deposed falsely being near relative of the deceased Irfan. No question was put to the witness on behalf of accused Surender.
State Vs. Sunil Kumar etc. SC NO: 102/17 9
17. During cross-examination for accused Sunil he deposed that Javed only informed him that he had gone to the office of Ex-MLA for depositing some file. He was not aware about the registration number of the motorcycle of his son-in-law. As on date the motorcycle bearing registration number DL 1SW 7792 is with him. He denied the suggestion that he is deposing falsely being the father in law of deceased or that motorcycle was already with him or that Wasiluddin had not taken that motorcycle from outside the office of Ex.MLA Devender Yadav.
18. Manoj Kumar was examined as PW-6. He deposed that he is the owner of tempo No. DL 1L E 7119 and used to drive it. On 04.08.2016 at about 5:00 pm he came to Singhania kacchi gali in his tempo for unloading the goods at the godwon of Mehraj. He saw three persons on one motorcycle. There was one truck stationed in the street. Three persons came on the motorcycle and threw one person at the side of the truck. Public persons gathered there. He reached there and found that person in unconscious condition. Some persons were saying that he is already dead and some were saying that he is alive. He made a call at 100 number. Police ambulance came there and took that person to the hospital. He could not see the faces of those motorcycle riders who dropped the person State Vs. Sunil Kumar etc. SC NO: 102/17 10 there. He also could not note down the number of that motorcycle.
19. During cross-examination for accused Sunil he stated that he has not brought the RC of his tempo and also does not remember from where he loaded the goods. No question was put to the witness on behalf of accused Lucky and accused Surender.
20. Subhash Sharma was examined as PW-7. He is the driver of Truck No. HR 55W 9016 owned by Rama Krishan Rajasthan Transport Company. On 04.08.2016 he had gone to the work shop of Manoj truck body in kacchi gali, Bhatta Road, Swaroop Nagar for getting it repaired. There was not sufficient place for parking the truck in the workshop of Manoj so he parked the truck in the street. He went to the work shop and when he returned to the truck he saw many public persons gathered there. One person in unconscious condition was lying by the side of his above said truck.
21. During cross-examination for accused Sunil he stated that police arrived at the spot and made inquires from him. Police also prepared some documents and obtained his signatures on one document. No question was put to the witness on behalf of accused Lucky and Surender.
22. Phool Singh was examined as PW-8. He was selling gole gappa on the rehri in the area of Swaroop Nagar. On State Vs. Sunil Kumar etc. SC NO: 102/17 11 04.08.2016 at about 4:30 pm he was present with his rehri of gole gappa at Burari road Swaroop Nagar. Two persons came on the bullet and asked him for giving them gole gappa. They ate gole gappas. After eating gole gappas he demanded Rs.30/- from them. They gave him Rs.10/-. He asked them to pay remaining Rs.20/- as it was the first earning for him on that day. Those persons hit on his glass counter with their hands due to which glasses were broken. There after they picked up the gas cylinder of 2 kg. He fearing that they would hit him with that cylinder ran away from there and reached near the wine shop situated at a little distance from his rehri. While those persons were eating gole gappas two more persons on a motorcycle came to his rehri and they asked him to pack gole gappas and went away. When the persons riding the bullet motorcycle picked the gas cylinders the persons who got the gole gappas packed also came back. He asked the persons present at the wine shop to make a call at 100 number. He had not seen any thing which took place near his rehri from the wine shop. When he returned to his rehri he did not found any person present there. He had not seen properly the faces of the persons who came on motorcycle and asked him to pack the gole gappas. He cannot identify them. Next day he was called in the police station by the police. Police had shown him two photographs State Vs. Sunil Kumar etc. SC NO: 102/17 12 and asked him to identify but he stated that he cannot identify them as he had not seen them as they were on motorcycle and did not stop the motorcycle.
23. The witness was cross-examined by Ld. APP but he did not support the prosecution case at all. He was confronted with Ex.PW8/A his earlier statement. No question was put to the witness in the cross-examination on behalf of accused Lucky and Surender.
24. Nothing material came on record in the cross- examination conducted on behalf of accused Sunil.
25. Shamshad Ahmed was examined as PW-9. He deposed that he is a property dealer. On the night of 04.08.2016 his brother Wasiluddin told him on phone that his son Irfan died in a quarrel and the dead body is kept in BJRM Hospital. Next day he along with his brother Wasiluddin went to the hospital where he identified the dead body of Irfan vide memo Ex.PW9/A.
26. During cross-examination for accused Sunil and for accused Lucky he stated that they reached BJRM Hospital on 05.08.2016 at about 11:00 am. No question was put to the witness on behalf of accused Surender.
27. HC Banwari Lal was examined as PW-10. He deposed that on 04.08.2016 he was posted in PCR North- West Zone. Ct. Babu Ram, gunman and HC Suresh Driver State Vs. Sunil Kumar etc. SC NO: 102/17 13 were with him on commander 59 PCR in the area of PS:
Swaroop Nagar. On that day at about 5:34 pm they received call regarding one person lying unconscious in street No.9 Bhatta Road, Swaroop Nagar. They reached there and found one person in the age of 20-22 years lying unconscious between wall and truck. They took that person in their vehicle to BJRM hospital and got him admitted there. In the search of that person cash of Rs.110/- and one ring of copper was recovered which was handed over to the duty Ct. Anil.
28. During cross-examination on behalf of accused Sunil and Lucky he stated that he has not brought the log book of the PCR Van. They had checked the purse of the injured. He was still alive but unconscious. Public persons were present on the spot. He did not ask the name of any public person who were present there. His statement was recorded on the same night on 04.08.2016 by the IO in the police station. No question was put to the witness on behalf of accused Surender.
29. Jagdeep was examined as PW-11. He deposed that on 04.08.2016 he was present at his house at about 12:30 / 1:00 am. Police officials came to his house and took his motorcycle DL 8S AX 6300 to police station and asked him to come to the police station. Next day he went to the police station. There they asked him to get the motorcycle released State Vs. Sunil Kumar etc. SC NO: 102/17 14 on superdari from the court. He accordingly got the motorcycle Ex.P1 released on superdari from the court. The witness was cross-examined by the APP as he resiled from his earlier statement made to the police.
30. During cross-examination nothing material came on record to support the witness. He denied the suggestion that Lucky and Sunil took away his motorcycle on 04.08.2016 in the noon time. He was also confronted with his statement Ex.PW11/A. He however admitted his signatures on the seizure memo Ex.PW11/A. He also moved application for Superdari and identified the same as Ex.PW11/B. Nothing material came on record to discredit the witness in cross- examination.
31. Surender Singh was examined as PW-12. He deposed that on 04.08.2016 police came at wine shop situated at Burari Road, Swaroop Nagar where he is working. CCTV camera is installed in that shop. Police checked the footage of CCTV recording in which the quarrel between two groups is visible. 3-4 days thereafter police came to the shop again and they took the DVR in the white cloth, sealed it in his presence and seized vide memo ExPW12/A. He identified the DVR as Ex.PW12/Article-1.
32. During cross-examination for accused Sunil he stated that Bijender Kumar was the manager on wine shop. They State Vs. Sunil Kumar etc. SC NO: 102/17 15 were not regularly checking the recording of DVR but it was recording and having the record of one and half month approximately. They were not maintaining any register with respect to DVR. The camera was working and covering the area of 50 to 60 meters from wine shop. The manager of wine shop did not sign the seizure memo. The police seized the DVR after taking permission from the head office. The seizure memo was prepared on the wine shop itself. No public person except him signed the seizure memo. He does not remember whose seal was used for sealing the DVR. He does not remember if DVR was seized on 05.09.2016. He denied the suggestion that during that one month period DVR was got manufactured/manipulated in connivance with the local police and the manager of the wine shop. He denied the suggestion that he is deposing falsely. No question was put to the witness on behalf of accused Lucky and Surender.
33. Pintu Kumar was examined as PW-13. He deposed that accused Sunil is his real brother. He stated that he is surprised as to why he has been called in the court. His brother Sunil was not having any phone number. The witness was cross-examined by Ld. APP where he stated that mobile phone number 8285078968 was not used by his brother Sunil. He denied the suggestion that this mobile was number was used by his brother Sunil or that Sunil being his younger State Vs. Sunil Kumar etc. SC NO: 102/17 16 brother he is telling a lie. No question was put to the witness on behalf of accused Lucky and Surender.
34. During cross-examination on behalf of accused Sunil he admitted that his younger brother Sunil was not having any mobile phone with him. He admitted that he had gone to the police station in connection with this case. Some court question were also put to the witness but nothing material came on record to effect the out come of the case.
35. Dheeraj was examined as PW-14. He stated that he is working as labourer in Sanjay Gandhi Transport Nagar. Accused Lucky is his real brother. Lucky was using the mobile phone but he does not remember the number. The number obtained on the ID of his mother Smt. Surender Kaur was 7834949551. No question was put to the witness on behalf of accused Sunil, Lucky and Surender.
36. Ct. Parvesh was examined as PW-15. He deposed that on 14.09.2016 he took one wooden box duly sealed to FSL Rohini after collecting it from MHC(M) vide RC No.184/21/16. He deposited the box in FSL and obtained the acknowledgement. He came back to the police station and handed over the acknowledgment to the MHC(M). Photocopy of the acknowledgement is proved as Ex.PW15/A. No one tampered with the case property till the same remained in his possession.
State Vs. Sunil Kumar etc. SC NO: 102/17 17
37. During cross-examination on behalf of all accused persons he denied the suggestion that case property was tampered with or that he did not take the exhibits to FSL Rohini.
38. Ct. Ajay was examined as PW-16. He deposed that on 19.09.2016 he took 14 sealed parcels to FSL After collecting the same from the MHC(M) vide RC No.186/21/16. He deposited the parcels in FSL and obtained the acknowledgement. He came back to the police station and handed over the acknowledgement and copy of RC to the MHC(M). He proved the photocopy of the acknowledgement as Ex.PW16/A. No one tampered with the case property till it remained in his possession.
39. During cross-examination on behalf of accused persons he denied the suggestion that case property was tampered with or that he did not take the exhibits to FSL Rohini.
40. Sh. Devender Kumar from CPCR was examined as PW-17. He deposed that on 01.11.2016 he was posted as Nodal Officer in CPCR PHQ. On that day he generated the PCR form Ex.PW17/A bearing No.04AUG161060346 dt. 04.08.2016 lending time 17:20:24 dispatch time 17:22:40 received at Extension No.106 from mobile No.8010078917. He also issued the certificate u/s 65B Evidence Act State Vs. Sunil Kumar etc. SC NO: 102/17 18 Ex.PW17/B.
41. During cross-examination for the accused persons he stated that he was the server Incharge from where he generated the PCR form No.1. He has not brought any document to show that he was the server Incharge at the relevant time.
42. HC Sombir was examined as PW-18. He deposed that on 04.08.2016 he was patrolling in the area and reached at Burari Road, near the liquor shop. There the public persons told him that some persons quarreled there. The motorcycle of one of the person who had quarreled is parked near the office of Ex-MLA Devender Yadav. He found that the registration number of that motorcycle was DL 1SW 7792. From the traffic circle he came to know that it was registered in the name of Irfan S/o Sh. Wasiluddin R/o 455 Bhalswa. He took the photograph of motorcycle. SHO PS: Swaroop Nagar had also put the photograph of the deceased on the whatsapp group of PS: Swaroop Nagar. After reaching 455 Bhaslwa he had shown the photograph of the motorcycle to Wasiluddin who identified the motorcycle as of his son Irfan. He had also shown to photograph of the dead body put on the whatsapp group to Wasiluddin who identified the photograph as of his son Irfan. Thereafter, he along with Wasiluddin came to the office of Ex-MLA Devender Yadav State Vs. Sunil Kumar etc. SC NO: 102/17 19 where the motorcycle was found parked. He handed over that motorcycle to Wasiluddin. Thereafter, he reached Bhatta Road, near street No.9 and informed the ASI Bijender and ATO Rajiv Ranjan that one motorcycle No. DL 1SW 7792 was found parked near the office of Ex-MLA Devender Yadav which he had handed over to Wasiluddin.
43. During cross-examination for accused Sunil he stated that he had not seen the motorcycle today. He had not brought the attested copy of the departure entry vide which he left the police station for patrolling duty. He was present on Burari road near the theka when the public persons told him about the quarrel. He was in uniform. He cannot tell the name and address of the person who told him about the quarrel. He was confronted with his statement where it was not found mentioned that the motorcycle was found parked near the office of Ex-MLA Devender Yadav. He did not seize the motorcycle as he wanted to trace the owner and the boys who had quarrelled. He reached the house of Wasiluddin at about 8:30 or 9:00 pm. He did not prepare any document while handing over the motorcycle to Wasiluddin. No question was put to the witness on behalf of accused Lucky and Surender.
44. W/Ct. Savita was examined as PW-19. She deposed that on 04.08.2016 at about 5:30 pm wireless operator State Vs. Sunil Kumar etc. SC NO: 102/17 20 informed that "Swaroop Nagar Gali No.9 at Bhatta road ek aadmi behosh pada hai". She recorded this information and informed ASI Bijender on telephone to carry out necessary proceedings. She proved the copy of the DD as Ex.PW19/A. Nothing material came on record to discredit the witness during the long cross-examination on behalf of Ld. Counsel for accused Sunil Kumar. No question was put to the witness on behalf of accused Lucky and Surender.
45. ASI Ram Rattan was examined as PW-20. On 04.08.2016 he was working as duty officer. He proved the copy of FIR as Ex.PW20/A. The endorsement on the rukka as Ex.PW20/B. He recorded DD No.22A regarding registration of FIR and proved the copy of the same as Ex.PW20/C. He recorded DD No.23A regarding closing of FIR and proved the copy of the same as Ex.PW20/D. The copies of the FIR were sent to the senior police officials and the area Magistrate through Ct. Kapil.
46. The witness was cross examined wherein he told that Ct. Kapil came back to the police station after delivering the copies vide DD No.5 Ex.PW20/DX. No question was put to the witness on behalf of accused Lucky and Surender.
47. HC Gunwant was examined as PW-21. He deposed that on 04.08.2016 he was on patrolling duty in the area of street No.9 Bhatta Road, Kacchi gali. He noticed crowd in State Vs. Sunil Kumar etc. SC NO: 102/17 21 front of street No.9. He reached there. ASI Bijender and Ct. Bheem were also present there. In the street one truck No.HR 55 1690 was found parked. Near the rear tyre of truck blood was lying. He was told that a person was found lying unconscious. That person had already been removed to hospital by PCR Van. ASI Bijender and Ct. Bheem went to BJRM hospital leaving him on the spot to guard the same. After some time the crime team and SHO came on the spot. Crime Team inspected the scene of crime and also lifted the blood and blood stained earth from scene of crime and handed over to him. After some time ASI Bijender came back on the spot. He preapred the site plan of scene of crime. ASI Bijender prepared the rukka and handed over to him. He went to the police station and got the FIR registered. He came back on the spot and handed over the original rukka and copy of FIR to ASI Bijender. ASI Bijender made inquiries. In the meanwhile HC Sombir reached the spot who told that dead body is identified as of Irfan resident of Bhalswa. The plastic containers in which exhibits were given to him by the crime team were given sl.no. 1,2,3,4. These containers were sealed with the seal of BK and seized vide memo Ex.PW21/A.
48. On 06.08.2016 he along with Inspector Rajiv Rajan, ASI Bijender and Ct. Ravinder went to main Burari road State Vs. Sunil Kumar etc. SC NO: 102/17 22 Swaroop Nagar near wine shop. Phool Singh met them there who was having a rehri and was selling gole gappa. IO recorded his statement. IO also took the photographs of the rehri of Phool Singh with his mobile phone camera. Rahul also met them who was with decesaed Irfan IO recorded his statement. Thereafter they reached near Gurudwara Bhaslwa Dairy where one secret informer met them. Informer told that the accused wanted in this case is present at E-22 Shradanand colony. They reached there and apprehended one boy who disclosed his name as Sunil Kumar. Sunil was interrogated and arrested vide arrest memo Ex.PW21/B. His personal search was conducted vide memo Ex.PW21/C. He made the disclosure statement Ex.PW21/D. Accused was got medically examined and his blood sample was taken.
49. On 09.08.2016 he again joined investigation with IO. Accused Sunil was on police custody remand. Accused Sunil pointed out the scene of crime i.e. Burari road, Swaroop Nagar near wine shop. IO prepared the pointing out memo Ex.PW21/E. Accused led them to his house and produced one polythene from Dewan in his house. In the said polythene there was one T-shirt of orange colour, one gamchha of yellow and red colour. These clothes were wrapped in a piece of cloth. Sealed and seized vide memo Ex.PW21/F. State Vs. Sunil Kumar etc. SC NO: 102/17 23
50. On 21.08.2016 he again joined the investigation with inspector Rajiv Ranjan and reached G-13, Swami Shradanand colony. Surender met them there who produced one mobile phone black colour Samsung. Surender told that he found the said mobile phone in the street and he inserted his mobile number and used the said mobile phone. IO put the same in a plastic jar, sealed it with the seal of RS and seized vide memo ex.PW21/G.
51. On 24.08.2016 he along with IO PSI Kuldeep, ASI Bijender, HC Parveen, Ct. Ajay reached C-Block Jahangir Puri where one secret informer met them, who informed them that the accused Lucky wanted in this case can be apprehended from C-Block Jahangir Puri. At about 12:00 noon on the pointing out of secret informer one boy was apprehended who disclosed his name as Lucky. Lucky was arrested vide arrest memo Ex.PW21/H. His personal search was conducted vide memo Ex.PW21/I. Accused made the disclosure statement Ex.PW21/J. Accused was found in possession of one black and red colour mobile phone make Karbonn. The said mobile phone was put in a plastic container, sealed with the seal of RS and seized vide memo Ex.PW21/K. Accused was got medically examined and his blood sample was taken which was seized vide memo Ex.PW21/L. State Vs. Sunil Kumar etc. SC NO: 102/17 24
52. On 09.08.2016 the doctor handed over the blood sample of accused Sunil along with sample seal which was seized vide memo Ex.PW21/M. On 09.08.2016 itself Jagdeep produced one motorcycle No: DL 8S AX 6003 make Yamaha which was seized vide memo Ex.PW11/A. He identified both the accused persons. He identified the mobile phone which was seized from Surender as Ex.PW21/Article1. He identified the mobile phone make Carbonn of accused Lucky as Ex.PW21/Article2. He identified the clothes of accused Sunil as Ex.PW21/Article3 and the motorcycle No. DL 8SAX 6003 as Ex.PW21/Article4. In response to a leading question put by Ld. APP he admitted that the registration number of truck was HR 55W 9016.
53. During cross-examination on behalf of accused Surender he admitted that Surender produced the mobile phone lying in the gali at Burari road. IO did not make any inquiry from the neighbours and known persons of accused Surender in his presence. He does not know if Surender informed the IO that he had inquired from any person of the locality and also on the road of Burari with regard to the ownership of the mobile phone with intention to restore it to the rightful owner. He denied the suggestion that mobile phone was not dishonestly mis-appropriated by the accused. He denied the suggestion that accused Surender has been State Vs. Sunil Kumar etc. SC NO: 102/17 25 falsely implicated.
54. During cross-examination by the Ld. Defence counsel for accused Lucky he admitted that on the first day he along with ASI Bijender reached the spot. No eye witness was found. The scene of crime is a thoroughfare and public persons were passing from the road. Traffic was also moving on the road. On the spot they made inquiries from Surender who was present at the Theka. He does not know if IO recorded the statement of Surender or not. No public person was present when the disclosure of accused Sunil was recorded. He admitted that the public persons were moving on the road when the disclosure of Sunil was recorded. He denied the suggestion that accused Sunil did not disclose the name of accused Lucky. He admitted that the disclosure of accused Lucky was recorded at a public place from where public persons were passing. No public person was joined while recording the dislcosure of Lucky. No written notice was given to the public persons who were passing from the road to join investigation. He denied the suggestion that Lucky did not make any disclosure statement or that his signatures were taken on plain paper or that mobile phone was planted upon the accused. He denied the suggestion that Lucky was not arrested in the manner place and time as deposed by him.
State Vs. Sunil Kumar etc. SC NO: 102/17 26
55. During cross examination by Sh. T.N. Puri Advocate for accused Sunil he deposed that he does not remember the DD entry vide which he left the police station for patrolling. ASI Bijender and Ct. Bheem did not call him because he was in Beat No.2. About 20 to 25 persons were present there. After sealing the exhibits on the spot ASI Bijender kept the seal with him. IO did not obtain the signatures of any public person on the seizure memo who were present on the spot. In addition to seizure of blood ASI Bijender prepared site plan also and sent the rukka. ASI Bijender returned to the spot from the hospital in between 8 to 9 pm and handed over the rukka to him at about 9:30 or 9:35 pm. He does not remember if IO handed over him exhibits and site plan with rukka. He returned to the spot at about 9:45 or 10:00 pm after registration of FIR. HC Sombir reached at the spot before ASI sent the rukka but he does not remember the exact time. In his presence ASI Bijender did not record the statement of HC Sombir. He does not know if ASI Bijender recorded in the rukka that HC Sombir informed that dead body has been identified as of Irfan r/o Bhalswa.
56. He does not remember the DD Number vide which they left the police station on 06.08.2016. He along with Bijender did not visit the wine shop on 04.08.2016. They visited the spot during day time and Phool Singh met them, State Vs. Sunil Kumar etc. SC NO: 102/17 27 but he cannot tell the time when they reached there. Phool Singh met them in front of wine shop at a distance of about 50 steps. He admitted that Phool Singh runs his rehri near the boundary wall of vacant plot near gali No.9 and that it is about 200 to 250 ft. away from the wine shop. He does not know if any person standing outside the wine shop could see as to what is happening at the rehri of Phool Singh. He denied the suggestion that statement of Phool Singh was not recorded. He does not know if Phool Singh had provided the address of Rahul. IO identified Rahul because IO had seen the CCTV footage. He does not remember if father of Rahul was present at home. Only IO can tell if the secret information was recorded on a paper or not. Accused Sunil was apprehended at the instance of Secret informer. Accused Sunil was roaming near his house when he was apprehended. He does not know the DD number vide which they left PS on 09.08.2016. No person was called from the wine shop or from the road to join the investigation on 09.08.2016. He does not know if IO called Rahul before reaching the house of accused Sunil. He does not know if IO had taken in possession the copy of Ration card or any other documents showing that accused Sunil is residing in H.No. D-22 and only IO can tell about this fact. There were three rooms and one kitchen in the house of accused Sunil. He State Vs. Sunil Kumar etc. SC NO: 102/17 28 does not remember the colour of polythene in which clothes of accused were found. He denied the suggestion that no such clothes belonging to Sunil were recovered. He denied the suggestion that he only signed all the documents at the instance of Inspector Rajiv Ranjan showing the recovery and arrest, being subordinate. He denied the suggestion that he signed the blank papers. He denied the suggestion that motorcycle Ex. PW21/Article-4 was not produced by Jagdeep Singh or the same was not seized. He denied the suggestion that he is deposing falsely.
57. Sh. Devender Kumar was again examined as PW-22. He was earlier examined as PW-17 and therefore it is not repeated.
58. Rahul was examined as PW-23. He deposed that about 1½ year ago in the summer days he along with his friend Irfan at about 4:30 pm went to eat Gole gappa at Swaroop Nagar near wine shop. Irfan started arguing with the gole-gappa seller. He made his friend Irfan to under stand and when he along with his friend Irfan were about to leave on the bike belonging to Irfan two boys who were present there started quarreling with them and gave beatings to Irfan. He ran away from the spot in order to escape. He went to the house of his Mama at Jahangir Puri. He cannot identify those two boys who gave beatings to Irfan. State Vs. Sunil Kumar etc. SC NO: 102/17 29
59. The witness was cross-examined by Ld. APP for the State. During cross-examination by Ld. APP he admitted that after giving beatings to Irfan they went away leaving Irfan in unconscious condition and the public gathered there. He also admitted that he saw one another motorcycle make discover on which two boys were riding and they made Irfan to sit in between them and took Irfan by saying that they are taking him to hospital. He admitted that he could not note down the registration number of the motorcycle and the description of those two boys. Lateron he came to know that Irfan had expired. He also admitted that on 09.08.2016 he went to PS:
Swaroop Nagar where he identified one Sunil Kumar as the person who gave beatings to him and his friend Irfan on 04.08.2016 and he came there at Burari road Swaroop Nagar near wine shop with his associates on FZ Yamaha motorcycle. He also admitted that on 29.08.2016 he identified another boy Lucky who gave beatings to him and his friend Irfan on 04.08.2016 and that he is also came there with his associates Sunil with FZ Yamaha Motorcycle. The witness stated that none of the assailants is present in the court i.e. Sunil and Lucky whom he identified in the police station. He denied the suggestion that he is deliberately not identifying Sunil and Lucky present in the court. He does not remember if the Yamaha motorcycle on which the assailants State Vs. Sunil Kumar etc. SC NO: 102/17 30 came was having registration No.6003. He was confronted with his statement Ex.PW23/A. No question was put to the witness on behalf of accused Lucky and Surender.
60. During cross examination for accused Sunil he denied the suggestion that he left the spot after hot discussion and stated that he left only after the accused persons started beating him and Irfan.
61. ASI Bijender Kumar was examined as PW-24. He deposed that on 04.08.2016 after receiving DD No.49B Ex.PW19/A he along with Ct. Bheem reached near Singhania Kaanch godown in the street where truck No. HR 55W 9016 was found stationed. Blood was found lying behind the truck. Blood stains were also found in between the truck and the wall. They came to know that injured had been removed by PCR van to BJRM hospital. In the meanwhile he received DD No.20A Ex.PW24/A regarding death of the person removed by PCR. Ct. Gunwant reached the spot. He along with Ct. Bheem went to BRJM hospital leaving Ct. Gunwant on the spot. He collected the MLC of the unknown person who was declared dead. SHO and the other staff also reached the hospital. No eye witness was found in the hospital. Rs.112/- and the small ring of yellow colour was handed over by the hospital which were put in an envelope sealed with the seal of BK and seized vide memo Ex.PW24/B. Dead body was State Vs. Sunil Kumar etc. SC NO: 102/17 31 removed to the mortuary through Ct. Bheem. He along with the staff reached the spot. Crime team was called. Crime team inspected the scene of crime and took the photographs. No eye witness was found on the spot. He made endorsment Ex.PW24/C on the rukka and handed over the same to Ct. Gunwant. He lifted the blood from the spot with the help of cotton, blood stained earth and earth control. He also lifted the blood with the help of cotton which was lying in between the truck and the wall. All the exhibits were put in different plastic containers, sealed with the seal of BK and seized vide memo Ex.PW21/A. Further investigation was assigned to Inspector Rajiv Ranjan who reached the spot along with Ct. Gunwant. In the meanwhile HC Sombir reached the spot and informed that dead body has been identified as of Irfan s/o Sh. Wasiluddin.
62. During cross-examination for accused Sunil he deposed that he received the exhibit PW-19/A in the PS. He admitted that in the seizure memo Ex.PW21/A it is not mentioned as to from which place it was lifted. He did not take the photographs of scene of crime before the arrival of the crime team. He made a call to the person Manoj who made call at 100 number who informed that injured had been taken by PCR. Many public persons also told him that injured has been taken by PCR. He did not record the statement of State Vs. Sunil Kumar etc. SC NO: 102/17 32 Manoj. Inspector Rajiv Ranjan reached the spot at about 10:30 or 10:45 pm. SHO reached the spot before the arrival of Inspector Rajiv Ranjan. He remained on the spot for about 1½ hour. SHO did not record statement of any person in the hospital. He reached back the spot at about 7:45 or 8 pm from the hospital. Ct. Gunwant told him that crime team had already visited the scene of crime. Ct. Gunwant did not hand over the crime team report to him. On 05.08.2016 the dead body was identified by the relatives of the deceased in the hospital at about 11/12 noon, before that on 04.08.2016 the dead body was identified. He received the exhibits from the hospital and handed over to the IO. On 06.08.2016 he along with IO reached the spot where they met one person who was selling gole gappa and revealed his name as Phool Singh. They found the rehri of Phool Singh damaged. IO made inquiries from public persons present over there but he does not know their names. IO recorded the statement of Phool Singh. He denied the suggestion that no statement of Phool Singh was recorded on 06.08.2016. During investigation they reached D-Block Bhalswa Dairy where IO met Rahul. Secret informer told that address of accused Sunil. Accused Sunil was apprehended at about 5/6 pm. IO was carrying photograph of accused Sunil hence his identify was not got established through local residents. Accused State Vs. Sunil Kumar etc. SC NO: 102/17 33 was standing outside his house. He denied that accused was forcibly taken to the police station. He denied the suggestion that he had shown the face of the accused to the witnesses when the accused was in custody or that he had shown the photograph of accused to the witnesses. The witness stated that accused was kept in muffled face. He cannot say why the recovery was effected on 09.08.2016 when accused made the disclosure on 06.08.2016. He denied the suggestion that signature of accused were obtained on plain papers which were later on converted into various documents. IO made inquiries to ascertain the residential house of accused but did not record statement of any public person in this regard. He denied the suggestion that clothes were planted upon the accused or that the clothes recovered were not of the accused. He does not know if the IO prepared the site plan of place of recovery. IO handed over the seal after use to him, after sealing the DVR. He denied the suggestion that he has not fairly investigated the case.
63. Ct.Bheem was examined as PW25. He deposed that on 04.08.16, on receipt of DD No. 49B Ex.PW19/A, he along with ASI Bijender reached the spot. He corroborated the testimony of PW24. He deposed that he took the dead body to the mortuary of BJRM Hospital and got the same preserved.
State Vs. Sunil Kumar etc. SC NO: 102/17 34
64. On 05.08.16, ASI Bijender came to the mortuary and prepared the inquest papers. The dead body was identified by the relatives. Postmortem was conducted. After Postmortem, dead body was handed over to the relatives of the deceased. After postmortem, doctor handed over the exhibits to ASI Bjiender, who seized the same vide memo Ex.PW24/H.
65. No question was put to the witness during cross- examination on behalf of accused Surender. Nothing material came on record in the cross-examination conducted on behalf of accused Lucky and Sunil to discredit the witness.
66. ASI Jagraj was examined as PW-26. He was working as MHCM and proved the entries in Register No.19 as Ex.PW26/A to Ex.PW26/F. He proved the entries in register No.21 as Ex.PW26/G, H, J and L. He proved the acknowledgements received from FSL as Ex.PW26/I, K & M. He deposed that during the period exhibits remained in his possession, no one tampered with the same. The testimony of the witness has gone unchallenged and controverted.
67. Rajiv Ranjan was examined as PW-27. He deposed that on 04.08.2016 he was posted as Addl. SHO in PS:
Swaroop Nagar and the investigation of this case was entrusted to him. At about 10:30 or 10:45 pm copy of FIR and State Vs. Sunil Kumar etc. SC NO: 102/17 35 original rukka was given to him. He along with Ct. Gunwant reached street No.9 near Singhania Glass Factory, Swaroop Nagar. ASI Bijender met him there. ASI Bijender handed over four exhibits in sealed condition having seal of BK and the copy of seizure memo to him. He prepared the site plan Ex.PW27/A at the instance of ASI Bijender. He called Manoj on the spot who made the call at 100 number and recorded his statement u/s 161 Cr.PC. He also recorded the statement of the driver of truck No.HR 55W 9016. In the meanwhile HC Sombir Dahiya came on the spot and told that dead body has been identified as of Irfan S/o Sh. Wasiluddin. On 05.08.2016 he directed ASI Bijender to get the post mortem conducted on the dead body. ASI Bijender returned to the police station after post mortem and handed over 4 sealed parcels along with seizure memo to him. He deposited the case property in the malkhana.
68. He also visited the liquor shop situated at main Burari road from where he took the CCTV footage from 4:54 pm to 5:04 pm in pendrive. He went to FSL to get the footage developed so that the sketches of accused persons can be developed. He developed the photographs in which one of accused is clearly visible. Four photographs are Ex.PW27/B, 27/C, 27/D and 27/E. He saved the footage in the computer of the police station from the pendrive.
State Vs. Sunil Kumar etc. SC NO: 102/17 36
69. On 06.08.2016 ASI Bijender, Ct. Gunwant and Ct. Ravinder reached the liquor shop and recorded the statement of Phool Singh. In the CCTV footage there was one person who was identified as Rahul who was accompanying deceased. Rahul met them at D-Block Rajiv Nagar Bhalswa Dairy and he recorded his statement.
70. Thereafter they reached near Gurudwara where secret informer told that boy wanted in this case and whose photographs found in CCTV footage is present outside his house in E-block Shradanand colony. They reached the house of accused and one boy was standing outside the house. On seeing the police he started running. The boy was apprehended. As the crowd gathered there they brought the boy to police station. The boy disclosed his name as Sunil. He was arrested vide arrest memo Ex.PW21/B his personal search was conducted vide memo Ex.PW21/C. He made the disclosure statement Ex.PW21/D. He fully corroborated the testimony of PW-21 regarding the arrest of the accused persons. He stated that the accused was produced in the court and application for TIP was moved but the accused refused. He also deposed that the IMEI Number of the mobile phone of deceased was put on search. On 21.08.2016 the CDR was received. According to this CDR another number was used in said mobile which was in the State Vs. Sunil Kumar etc. SC NO: 102/17 37 name of Surender R/o Bhaslwa Dairy. Notice was given to Surender and was directed to produce the mobile of make Samsung. On 21.08.2016 accused Surender himself came to the police station and produce the mobile phone. He corroborated the testimony of PW-21 regarding the seizure of mobile phone. He also corroborated the testimony of PW21 regarding the arrest of accused Lucky. On 25.08.2016 he moved application for TIP of accused Lucky. The TIP was fixed for 27.08.2016 but accused refused to join the TIP. He deposed that on 30.08.2016 accused led them to his house No.C-1646 Jahangir Puri first floor and from a bag he took out one pants and T-shirt. The pants and the shirt was put in a cloth parcel sealed with the seal of RS and seized vide memo Ex.PW27/F. Accused Lucky also pointed out the place of occurrence vide pointing out memo Ex.PW27/G.
71. He deposed that on 05.09.2016 he again visited the liquor shop and seized the DVR after wrapping it in white cloth sealing it with the seal of RS vide memo Ex.PW12/A. He sent the exhibits to FSL through Ct. Parvesh and Ct. Ajay. On 06.10.2016 he collected the certified copies of customer application form and CDR of the mobile phone of the deceased, Rahul and the accused. He also got prepared the scaled site plan. Yamaha motorcycle was seized vide memo Ex.PW11/A. He collected the FSL result and place on record. State Vs. Sunil Kumar etc. SC NO: 102/17 38 He filed the four photographs Ex.PW4/A of motorcycle No. DL 8S AX 6003 in which he identified the photographs of motorcycle. Motorcycle is already Ex.PW25/Article-4. He identified the clothes of Sunil as Ex.PW21/Article-3. The clothes of Lucky as Ex.PW27/Article-1. And the mobile phone of the deceased as Ex.PW21/Article-1. The mobile phone of Lucky as Ex.PW21/Article2. Ld. APP put the leading question regarding the preparation of site plan. Showing the liquor shop and he admitted that he prepared site plan Ex.PW27/G of the place where liquor shop is situated.
72. During cross-examination for accused Surender he denied the suggestion that Surender did not mis appropriate the mobile phone make Samsung dishonestly and he has been falsely implicated.
73. During cross-examination for accused Sunil he stated that ASI Bijender had not sent the seizure memo to the police station along with rukka. He did not make any departure entry while leaving the police station. He did not inquire from ASI Bijender as to why he did not taken photographs. Crime team had already visited the scene of crime and he collected the report of the crime team later on. He did not visit the hospital. He did not mention the time of depositing the exhibits in the register. The seal used for sealing the pullandas was with ASI Bijender. He did not record the State Vs. Sunil Kumar etc. SC NO: 102/17 39 statement of any public witness on 05.08.2016. He had not come to know the name and address of any of accused on 06.08.2016. He came to know on 04.08.2016 itself that incident took place at liquor shop situated on main Burari road and that is why on 05.08.2016 he went to the liquor shop to see the CCTV footage. He did not visit the liquor shop on 04.08.2016 as it was late in the night. He mentioned in the case diary that he had seen the CCTV footage, took the copy on the pendrive for sending the same to FSL for developing photograph. He did not seize anything from near the rehri of Phool Singh. He did not prepare any site plan on 06.08.2016. He denied the suggestion that the distance between the liquor shop and the rehri of gole gappa is about 300 ft. It is only 25 to 30 ft. he admitted that place where dead body is found is more than 300 to 400 ft away from the rehri of gole gappa. He did not prepare any seizure memo of pendrive in which CCTV footage was taken. He admitted that he did not deposit the pendrive in the malkhana. He denied the suggestion that he did not seize the DVR. The DVR could not be seized earlier as the person working on liquor shop required necessary permission from the Excise Department. He was not knowing accused Sunil prior to his apprehension. Accused was apprehended on the pointing out of secret informer as well as his resemblance with the person visible in State Vs. Sunil Kumar etc. SC NO: 102/17 40 CCTV footage. In the personal search of the accused his voter ID card was found from which his identity was established. Ld. Counsel asked when the accused made the disclosure on 06.08.2016 then why the recovery was effected on 09.08.2016 and the witness stated that after disclosure on 06.08.2016 accused was ordered to be sent to JC for conducting test identification parade accused refused to join the TIP and thereafter on 08.08.2016 he obtained the police custody remand and on 09.08.2016 recovery was effected at the instance of accused.
74. He did not call any family member of the deceased at the time of effecting recovery. He asked the neighbours to join the investigation but none agreed. Accused was in exclusive possession of E-22 Shradanand Colony, Bhalswa Dairy. Mother of accused met them at E-22 when they reached there. He asked the mother of accused to sign the documents but she refused. The seal after use was handed over to ASI Bijender. He denied the suggestion that documents have been fabricated or that he did not fairly investigate the case.
75. During cross-examination for accused Lucky he admitted that the quarrel took place at public place. Phool Singh identified Lucky besides Rahul that he is involved in the commission of offence. Phool Singh was not knowing State Vs. Sunil Kumar etc. SC NO: 102/17 41 Lucky prior to the incident. He denied the suggestion that nobody told or identified Lucky as the assailants. He denied the suggestion that Sunil did not make any disclosure statement naming Lucky. No family member of Lucky was present at the time of his arrest and therefore they could not be joined. He denied the suggestion that Lucky did not make any disclosure statement or that he was shown to the witnesses in the police station after his arrest. No public witness could be joined at the time of recovery of clothes. The recovery of clothes was effected from the house of girlfriend of accused. He does not remember the name of girlfriend of Lucky. He denied the statement that accused did not make any discloser statement or that he has been falsely implicated.
76. Ms.Anita Chhari was examined as PW-28. She conducted the biological examination and the DNA finger printing profile on the exhibits and proved her report as Ex.PW28/A and Ex.PW28/B. The testimony of the witness has gone unchallenged and uncontroverted.
77. Vivek Kumar Junior Forensic Chemical Examiner was examined as PW-29. He examined the DVR. He stated that he retrieved the data from the hard disk HDD1 and stored the same in DVD mark DVD1 which was forwarded to the physics division for further examination. He proved his report State Vs. Sunil Kumar etc. SC NO: 102/17 42 as Ex.PW29/A. He identified the DVR as Ex.PW12/Article1 and the DVD as Ex.DX.
78. During cross-examination for accused Sunil he admitted that he had not seen any DVR on 04.08.2016 and 05.08.2016. The report Ex.PW29/A was prepared by him. He did not receive any report of physics division of FSL Delhi. No question was put to the witness on behalf of accused Lucky and Surender.
79. Ct. Sandeep was examined as PW-30. He was the photographer with the crime team which visited the scene of crime on 04.08.2016. He proved the photographs of the scene of crime as ExPW30/B1 to B13 and the certificate u/s 65B Evidence Act as Ex.PW30/A. No question was put to the witness on behalf of accused Lucky and Surender.
80. During cross-examination on behalf of accused Sunil he admitted that FIR Number is not mentioned on the back of the photographs. Blood is visible in the photographs Ex.PW30/B1 to B5. In his presence blood was not lifted from the spot. In the photograph Ex.PW30/B12 in the middle back side of the truck blood is visible. His name is mentioned in the mobile crime team report prepared by SI Suraj Bhan.
81. Inspector Suraj Bhan was examined as PW-32. He was the Incharge of the mobile crime team which visited the scene of crime and he proved his report as Ex.PW32/A. The State Vs. Sunil Kumar etc. SC NO: 102/17 43 testimony of the witness has gone unchallenged and uncontroverted.
82. Thereafter, prosecution evidence was closed. The statements of accused persons were recorded under Section 313 Cr.P.C., wherein they denied the entire evidence and stated that they have been falsely implicated. They did not wish to lead evidence in defence. Thereafter, the case was fixed for final arguments.
83. I have heard the Ld. Addl. PP for the State, Ld. Defence counsels for the accused persons and perused the record.
84. In the present case, as per story of prosecution, Irfan (deceased) along with Rahul, PW23 had gone to the rehri of Phool Singh PW8 on 04.08.16 for eating gol gappas. Irfan and Rahul ate gol gappas. Some altercation took place between Phool Singh on one side and Irfan and Rahul on the issue of payment of gol gappas. Irfan and Rahul damaged the rehri of Phool Singh and also picked up the gas cylinder from the rehri of Phool Singh. At that time, Sunil Kumar and Lucky intervened and thrashed Irfan and Rahul. They also took Irfan with them and dumped the dead body near street no.9, behind truck no. HR55W 9016. Phool Singh was examined as PW8 as mentioned above. He supported the prosecution case to the extent that two boys came to his State Vs. Sunil Kumar etc. SC NO: 102/17 44 rehri to eat gol gappas. They did not pay the full amount due to which some altercation took place. He stated that he cannot identify those boys as in his presence no beating was given. He fled away leaving his rehri when the boys lifted the gas cylinder and stood near the wine shop. From there, he was not able to see as to what had happened.
85. The other eye witness is Rahul examined as PW23. He supported the case to the extent that two boys started beating him and Irfan. He fled away in order to save himself. He does not know what happened with Irfan thereafter. He also stated that he cannot identify the persons who assaulted Irfan & him and the boys who took Irfan on the motorcycle. He was cross examined by Ld Addl. PP wherein he admitted that he identified Sunil in the police station but he stated that accused present in the court is not the same person whom he identified in the police station. He also stated that accused present in the court did not assault him and Irfan. There is no other eye witness to link the accused persons with commission of offence.
86. There is one more person who had seen three persons going on motorcycle and they threw one person by the side of the truck at about 5.00 p.m. on 04.08.16 near Singhania Glass Factory. He is Manoj examined as PW6. He also made the call at 100 number. He stated that he could State Vs. Sunil Kumar etc. SC NO: 102/17 45 not see the faces of the boys who had thrown the person by the side of the road. There is no other evidence/eye witness who can link the accused persons with the commission of offence.
87. The prosecution has failed to prove the guilt of accused persons on the basis of eye witness account. It is settled law that a person can be held guilty even in the absence of eye witness on the basis of circumstantial evidence provided all the circumstances are proved and established. All the circumstances proved and established from a complete chain. The circumstances so proved and established point towards the guilt of the accused and are also inconsistent with any hypothesis innocence of the accused. Prosecution in this case intend to prove and establish the guilt of the accused by proving the following circumstances:
(a) CCTV Footage of wine shop showing the presence of Sunil.
(b) Recovery of clothes of accused persons, which they were wearing at the time of commission of offence;
and
(c) The recovery of motorcycle No. DL8S AX 6003.
88. I take the circumstances one by one.
89. CCTV Footage of Wine Shop showing the State Vs. Sunil Kumar etc. SC NO: 102/17 46 presence of Sunil:
89.1 Ld. Addl. PP submits that in the present case incident took place at the rehri of Phool Singh PW8. He stated that when altercation started he left his rehri and reached the wine shop. It has come in the evidence of PW24 and PW25 that the wine shop was at the distance of around 20 to 25 feet from the rehri of Phool Singh PW8. Phool Singh himself also stated so. CCTV Cameras were found installed at the Wine Shop. The DVR from the wine shop was seized vide memo Ex.PW12/A. PW24 & PW25 also deposed in this regard. All the three witnesses are consistent about the seizure of DVR. The DVR has also been identified as Ex.PW21/Article 1. This DVR was sent to FSL for analysis.
The report has been proved on record. According to the report, on image analysis and comparison of image with photograph of Sunil he has resemblance with respect to their geometric and portrait feature. So far as Lucky is concerned that could not be recognized due to low pixel resolution and different orientation of the image. Ld. Addl. PP submitted that this report clearly shows and establishes the presence of Sunil at the relevant time i.e. 4.39 p.m. as reflected in CCTV footage near the place of occurrence. Ld. PP submitted that even the clothes which are visible in the CCTV footage were got recovered by the accused later on and seized. Ld. PP State Vs. Sunil Kumar etc. SC NO: 102/17 47 submitted that this circumstance stands established and points towards the guilt of the accused.
89.2 Ld. Defence counsel submitted that onus was on the prosecution to prove the guilt of the accused, which the prosecution has failed. With this evidence, prosecution is only able to show the presence of Sunil on the wine shop. There is no evidence that he was with Lucky or in the company of Irfan and Rahul or was even present near the rehari of Phool Singh. Ld. Counsel further submitted that this CCTV footage shows the presence of many persons in that area at the relevant time and also at the wine shop. That fact by itself does not make them accused or points towards their culpability. Onus was on the persecution to prove and establish as to how this footage link him with the commission of offence, which the prosecution has failed. The onus which was on the prosecution has not been discharged and benefit of the same be given to the accused.
89.3 After hearing the arguments and going through the record, I found that in the CCTV footage, accused Sunil is visible. In the footage, he is visible as being present on the wine shop. It is pertinent to mention here that in the footage the rehri of Phool Singh is not visible. In the footage also neither the deceased nor Rahul or Phool Singh are visible with Sunil. It is also important to note that Rahul and Phool State Vs. Sunil Kumar etc. SC NO: 102/17 48 Singh had not identified Sunil as assailant. This CCTV footage also does not show that Sunil assaulted either Rahul or Irfan or was on motorcycle because the prosecution alleges that Sunil and Lucky were on the motorcycle. Keeping in view this discussion, in my opinion, this fact by itself does not link the accused with the commission of offence or even point towards his guilt. The onus was upon the prosecution to show that this circumstance link the accused with the commission of offence and point towards his guilt which the prosecution has failed.
90. Recovery of clothes of accused persons, which they were wearing at the time of commission of offence:
90.1 As per the prosecution case and as deposed by PW17, PW18, PW19, PW24 and PW25, accused Sunil on 09.08.16 got recovered from his house from Diwan a polythene having T-Shirt of Orange colour and one gamcha yellow and red colour Ex.PW21/Article-3 which were seized vide memo Ex.PW21/F. Accused Lucky on 30.08.16 from H.No. C-1646, First Floor, Jahangir Puri, got recovered one Jeans Pant blue colour from a bag. According to the prosecution case, accused persons were wearing these clothes at the time of incident. The onus was on the prosecution to prove and establish this fact, but none of the witness i.e. PW8 Phool Singh, PW23 Rahul or PW6 Manoj State Vs. Sunil Kumar etc. SC NO: 102/17 49 Kumar deposed that accused persons were wearing these clothes. These clothes were sent to FSL for analysis. The biological examination report has been proved on record as Ex.PW28/A and Ex.PW28/B but no blood has been detected on the clothes of accused persons. This scientific evidence itself show that these are not the clothes worn by the assailants or the persons who took away Irfan on motorcycle, otherwise there would have been some blood stains on the clothes. The eye witnesses also does not say, as mentioned above that assailants or the persons who dropped Irfan near truck no. HR55W 9016 were wearing these clothes. The onus was on the prosecution to prove and establish this fact which in my opinion prosecution has failed.
91 The recovery of motorcycle no. DL8S AX 6003. 91.1 The prosecution alleges the recovery of motorcycle DL8S AX 6003 Ex.P1 and that it is the same motorcycle on which accused persons came and then took away Irfan and dumped him behind truck no. HR55W 9016. There were three witnesses with the prosecution to prove this fact that motorcycle Ex.P1 was used by the accused persons in the commission of offence and to link them with the commission of offence i.e. PW6 Manoj, PW8 Phool Singh and PW23 Rahul but none of them had supported prosecution case in this regard. They had stated that they had not seen the State Vs. Sunil Kumar etc. SC NO: 102/17 50 registration number and cannot identify the motorcycle. It is also important to note that PW11 also not supported the prosecution case that on 04.08.16 Lucky and Sunil took away his motorcycle. He was cross examined by ld. Addl. PP but he did not support the prosecution case. Keeping in view the testimonies of the above said three witnesses, in my opinion, the prosecution has failed to prove and establish that this motorcycle was used in the commission of offence.
92. In this case, Irfan, the deceased was having one mobile phone with him as deposed by his father in law Alisher examined as PW5. He also stated that Irfan was using two mobile phone numbers 9811769047 and 7503078537. He also deposed that mobile phone of Irfan could not be found at that time. Sh.Shishir Malhotra, Nodal officer Aircel Ltd. was examined as PW1. He proved the customer application form of mobile no. 7503078537. According to the record, Ex.PW1/D this number was issued in the name of Irfan (deceased). The call detail record of this number is proved as Ex.PW1/F. According to CDR Ex.PW1/F, the IMEI number of the mobile phone in which it was used was 352841060506230. The other mobile phone number used by Irfan was 9811769047. As per the CDR of this number, the IMEI number of the mobile phone it which it was used was 352841060506230. According to PW25, this State Vs. Sunil Kumar etc. SC NO: 102/17 51 mobile phone was put on tracking and it was found that one Surender was using this mobile phone inserting his SIM. Mobile phone was produced by Surender Ex.PW21/Article 1 seized vide memo Ex.PW21/G. This mobile phone was having the same IMEI number as reflected in the CDRs Ex.PW1/F and Ex.PW1/G showing that mobile phone recovered from the possession of Surender was used by deceased Irfan upto 04.08.16. On 04.08.16, Irfan died and thereafter, it was used by the accused, he claims that he was not knowing that mobile phone belongs to deceased and he also tried to find out the actual owner before inserting his own SIM but no such evidence has been brought on record. Onus was upon him to prove this fact because the recovery of mobile phone has been proved. He does not dispute the recovery of mobile phone Ex.PW21/Article 1. He only alleges that he was not knowing that this mobile phone belongs to dead person. Keeping in view above discussion, in my opinion, prosecution has established beyond doubt that accused Surender was found in possession of mobile phone of deceased which he mis-appropriated dishonestly and put to his own use.
93. Keeping in view the above discussion, I found that so far as Sunil and Lucky are concerned, prosecution has failed to prove their guilt. They are therefore, acquitted of the State Vs. Sunil Kumar etc. SC NO: 102/17 52 charge. They be released on furnishing personal bond of Rs.20,000/- with one surety of the like amount U/s 437A Cr.P.C. for a period of six months. Accused Surender is held guilty and convicted U/s 404 IPC.
94. He will be heard on the point of quantum of sentence on 06.07.2018.
Digitally signedby VIRENDER
VIRENDER KUMAR
KUMAR BANSAL
BANSAL Date:
2018.07.04
Announced in the open court 15:05:10 +0530
today i.e. on 04th July,2018
(VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Sunil Kumar etc. SC NO: 102/17 53