Delhi District Court
State vs Jaikumar @ Lala on 8 July, 2024
IN THE COURT OF SH. PANKAJ ARORA:
ADDITIONAL SESSIONS JUDGE-04: NORTH-EAST:
KARKARDOOMA COURT: DELHI
SESSIONS CASE NO. 44692/15
CNR No. DLNE01-000031-2009
FIR No: 202/09
P.S. Karawal Nagar
U/s : 302/506/120B/75 of IPC
u/s 25/27/54/59 of Arms Act
STATE
Versus
1. Jai Kumar @ Lala
s/o Sri Niwas
r/o H. No. A-107, Gali no. 10, (expired and proceedings abated
Phase-10, Shiv Vihar, vide order dated 30-05-2017)
Karawal Nagar, Delhi
2. Ajay Sharma
s/o Ram Kishan Sharma (expired and proceedings abated
r/o B-Block, Gali no. 9, vide order dated 11-10-2023)
Phase-10, Shiv Vihar,
Karawal Nagar, Delhi
3. Narender
s/o Sh. Harish Chand
r/o H. No. A-78, Gali no. 10,
Phase-10, Shiv Vihar,
Karawal Nagar, Delhi
Date of Institution : 26-02-2010
Date of Argument : 04-07-2024
Date of Judgment : 08-07-2024
JUDGMENT
1. Brief facts of the case are that on the intervening night of 20/21.08.2019, Inspector N.K. Tyagi (hereinafter referred to as FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 1 of 82 1st Investigating officer/IO) was performing the night checking duty in Government Gypsy bearing No. DL 1CJ 5295 in the area of Gokulpuri sub-division, 32 foota road, Shiv Vihar. At about 2:30 AM, he received an information through telephone regarding incident of gun shot at gali no. 11, Phase-II stand, Shiv Vihar.
Immediately upon receipt of information, IO reached at the spot where one PCR vehicle was already found stationed. Upon receipt of DD No. 43A dated 21.08.2019, ASI Vijay Singh, Ct. Hemraj and Ct. Ramesh have also reached at the spot and made inquiry about the PCR call but nobody was found at gali no. 11. Thereafter, the caller Sanjeev Kumar was contacted on his Mobile No. 9313901155, who stated that he was at Shanti Nagar. The caller was asked either to report at the spot or to come at police station for revealing the complete facts about the incident. At about 2 AM, the caller Sanjeev Kumar met the IO at near Shiv Vihar Tiraha. Thereafter, the caller Sanjeev Kumar led the IO to a place situated at gali no. 9, 25 foota road where victim Pramod was fired upon. The victim Pramod was not found present there. Search of victim Pramod was started. After sometime, the dead body of victim Pramod was found lying in a vacant plot, which was covered with sand and wooden planks. The face of the dead body was found crushed and there were multiple injuries on its head and it was bleeding profusely. Three blood stained bricks were found near the dead body. Crime team was called. Senior police officials were intimated. Statement of caller Sanjeev was recorded, who stated that his brother-in-law (sala) Sachin Pawar had performed love marriage with one Shivani 10-11 months prior to this incident. Parents of Shivani had lodged a case of FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 2 of 82 kidnapping against Sachin. After sometimes, some dispute arose between Sachin and Shivani. Ajay, brother of Shivani used to make phone calls at the house of Sachin and would ask them to come for talks. He further stated on 20.8.2009, Ajay again called and invited them to his house for compromise. Sanjeev further stated that he talked to his neighbour Narender at about 10:30 pm, who was known to him and Narender agreed to accompany him. Thereafter, Sanjay along with his cousin brother Ashwani reached in front of Gagan Cinema. He further stated that he and Pramod have witnessed the marriage of Shivani. In front of Gagan Cinema, Narender and one another person, who was introduced as Jai Kumar @ Lala were also present. They all reached Gali no. 9, Phase II, Shiva Vihar where in the gali Ajay, brother of Shivani met. They all sat in a room in a house. At about 12:15 night, Ajay told Pramod that he wanted to talk to him (Pramod) separately and he took him outside. After sometimes, Lala and Narender also went outside.
Sanjeev further stated that when they did not return after 5- 7 minutes, he along with Ashwani came out and went towards the gali where he saw Ajay and Narender beating Pramod with saria and danda. When he went towards them to save Pramod, then Ajay exhorted by saying, "lala der kyo kar rha hai, maar sale ko, iska kaam tamam kar de" and at that instant, Lala fired at Pramod with katta and Pramod fell down there. After that Lala threatened them and told them to run away from there otherwise, they would also meet the same fate. Sanjeev further stated that thereafter he ran towards Shanti Nagar and made call to the police. Later on, dead body of Pramod was recovered from a vacant plot. Thereafter, efforts were made to trace the accused FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 3 of 82 persons but they were found to be absconding from their respective residence. At about 6:30 am, on the basis of secret information, the accused persons were traced at Yamuna Vihar, Ganda nala pulia where they were found riding on a motorcycle, accused Jai Kumar @ Lala was the motorcycle rider and co- accused Ajay and Narender were the pillion riders. They were arrested. One country made pistol with fired cartridge was recovered from the left side dub of wearing pant of accused Jai Kumar @ Lala. Weapon of offence i.e. blood-stained danda was recovered at the instance of accused Narender, which was lying hidden under the building material. Another weapon of offence i.e. blood-stained iron rod, which was bent from one side, was recovered at the instance of accused Ajay, which was lying hidden under the building material. Blood-stained shirt of accused Jai Kumar @ Lala was also seized. The exhibits were sent to FSL. PM report was received wherein the cause of death was opined as shock as a result of antemortem injury to head produced by blunt force impact. Call detail records and location charts of the mobile phones of the accused persons as well as eyewitnesses were obtained and analyzed. After completion of necessary formalities, chargesheet was filed in the court. COMMITTAL
2. After taking cognizance and compliance of section 207 Cr. PC, present case was committed to the court of sessions vide order dated 18-02-2010 of ld. MM/KKD. Thereafter, the then Ld. District and Sessions Judge, KKD Courts allocated this case to the ld. Predecessor of this court.
CHARGE
3. On the basis of facts emerging from the chargesheet and FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 4 of 82 after hearing the arguments, Ld. Predecessor of this court framed charges against the accused persons for the offences punishable u/s 302/120B/506 of IPC and u/s 25/27 of Arms Act against accused Jai Kumar, to which the accused persons pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution got examined as many as 31 witnesses. PROSECUTION EVIDENCE
4. (I) PUBLIC WITNESSES/ EYE WITNESSES ( i) PW-1 Sanjeev Kumar is the complainant in the present case. He deposed that on 20-08-2009, his brother-in-law ( Sala) Sachin Pawar received a telephonic call from one Ajay and Ajay had told him that Pramod should come to compromise the matter as some litigation was going on between Sachin and his wife. Ajay was brother of wife of Sachin. Pramod, who is Mama of his wife, was a witness to the marriage of Sachin and his wife Shivani. After receiving the call, his mama Sasur Pramod came to him and asked whether he should go there or not. Thereafter, he contacted Narender on phone, who is his friend and asked him whether they should go for the talks for compromise. Thereafter, when Narender gave him the assurance, he along with his brother Ashwani and his mama sasur Pramod went to Gagan Cinema Hail situated in Nand Nagri on 20.08.2009 at about 10.45 p.m. At Gagan Cinema, Narender and one boy, who was introduced to him as one Lala, met them. At Gagan Cinema, Narender told him to accompany him and Lala to the house of Narender in Shiv Vihar to have compromise talks. Thereafter, he, his brother and mama sasur Pramod took an auto and reached check post Jawahar Nagar and Narender and Lala reached there on motorcycle. They got down at Check Post Jawahar Nagar and FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 5 of 82 thereafter Narender took him and Pramod on the motorcycle to Shiv Vihar, Gali No. 9. and his brother Ashwani along with Lala proceeded for the same place on foot, where Ajay was standing. There was one house which was locked from outside. Ajay opened the lock and they all went inside the house. After about 10-15 minutes his brother Ashwani along with Lala also reached there.
Thereafter, some compromise talks were initiated and Ajay shook hands with Pramod. Thereafter, Ajay asked Pramod that he wanted to talk to him separately and Pramod and Ajay left that place. After some time, Lala also left that place. After 3-4 minutes, Narender also left the said place to see as to what had happened. By that time it was 12.00/12.15 am (night) and he got worried as they had not come back by that time. So, he also went out to see them. At a distance of about 30-40 steps away from the house, at 25 futa road, he found all the above said persons standing there and Pramod was being beaten up by Lala, Ajay and Narender. His brother Ashwani was also with him. He and Ashwani intervened in the matter and tried to rescue Pramod. They ran towards them and in the meantime, Lala took out katta and Ajay said, "mar sale ko, der kyo kar raha hai " and immediately. Thereafter, Lala fired at Pramod. Pramod fell down. Lala turned his face towards him and said, " bhag jayo salo nehi to tumhara bhi yahi haal hoga". He along with his brother Ashwani ran towards nala. He was having mobile phone with him having number 9313901155 and rang up police at number
100. He informed the police that incident had taken place in Gali No. 11, Shiv Vihar. Police asked him to stop there, but he told the police that he would not stop there and he along with his FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 6 of 82 brother Ashwani proceeded towards Shanti Nagar. In the meantime, he received a call on his mobile from Inspector Narender Tyagi. He narrated the entire incident to him and he asked him to meet him. He met Insp. Narender Tyagi at T-point Shiv Vihar where he was on patrolling duty. He took Insp. Narender Tyagi to the place of incident, his brother was also with them. It was about 2.00 am (night) that time and with the help of the torch in the mobile phone, they could notice lot of blood lying on the spot and there was vacant plot nearby where they found the body of his mama sasur Pramod. They reached the body of Pramod in the plot with the traces of the blood lying on the spot as the body of the Pramod had been dragged from the place of incident to the nearby plot. The face of Pramod had been completely smashed and his eyes were bulging out. When he had informed the police on number 100, he had given wrong place of incident as Gali No. 11 as he was very nervous at that time. Actually, the incident had taken place at the corner of Gali No.9, Shiv Vihar. Insp. Narender Tyagi called the Crime Team on the spot and many police officials reached there. He was inquired by the police and he narrated the entire incident to them. The body of Pramod was taken to GTB Hospital by the police where he was declared as brought dead. He identified accused Lala, Ajay and Narender correctly in the court. His statement was recorded by the police vide Ex. PW1/A. When he along with his brother Ashwani came out of the house in Shiv Vihar, he had seen all the three accused persons beating Pramod, they were beating him with iron rod and Danda. The Crime Team members had taken photographs of the place of occurrence. The police had lifted soil from the place of occurrence as well as three bricks FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 7 of 82 which were blood stained and they were lying on the right side of dead body of Pramod. The seizure memo of bricks prepared by the police is Ex. PW-1/B. The seizure memo of the soil lifted from the spot by the police is Ex. PWI/C. The seizure memo of the blood stained soil lifted by the police from the spot is Ex. PWI/D. Police had taken many samples and kept them in the plastic containers.
To a leading question by Ld. Addl. PP as to why his mama sasur Pramod was killed by the accused persons., he replied that there were some differences between Sachin and his wife Shivani, who is sister of accused Ajay. Shivani had left her matrimonial house. Ajay had been threatening father of Sachin, asking him that he should allow Ajay to meet his sister Shivani. Pramod was mama of Sachin and Sachin went to stay with Pramod at village Sohram. Whenever Sachin received any telephonic calls for talks, Pramod intervened and asked Sachin that he would pacify the matter and would talk to Ajay directly. After that Pramod started talking with Ajay after interval of 2-3 days.
Ld. Addl. PP for State cross-examined the witness as he was resiling from his earlier statement.
During cross-examination by Ld. Addl. PP for State, he affirmed that he had stated to the police in his statement Ex. PW1/A that all the three accused persons had killed Pramod as he along with him was a witness in the love marriage of Sachin and Shivani. He affirmed that he had stated to the police that when they reached in the vacant plot where dead body of his mama sasur Pramod was lying, his face was smashed and there were injuries on his head and lot of blood had come out and beside the FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 8 of 82 body of Pramod, three blood stained bricks were lying. He was receiving threatening calls on his phone that if he depose against the accused persons in the court, "tere jaban gardan se lapet denge". With regard to this, he had made complained to the police including DCP. Inquiry was conducted in the said matter and he was provided police protection by the DCP concerned. He was apprehending danger.
He deposed that he can identify the case property. He deposed that the bricks were complete and of full size and on the bricks, some SBF and MKF was written.
He identified three bricks having brown stains, on one brick SBF was engraved, on another brick MKF was engraved and on third brick PRB was engraved. He identified the same to be the same bricks were where seized by the police from the spot in his presence. The said brick are collectively Ex.P-1.
During cross-examination, he affirmed that in the complaint Ex. PW-1/DX and the complaint dated 10-11-2009 Ex. PW1/DY in which name of any of the accused present in the court was nowhere mentioned. He affirmed that police registered an FIR no. 424/08 u/s 363 IPC, PS Nand Nagri at the instance of brother of Shivani. At Gagan Cinema, Jai Kumar and Narender were already present. They stayed there for about ten minutes. He affirmed that area where the said room was situated is thickly populated and residents were residing in the respective houses and passersby were also present at that time. Firstly, they had entered in the rear room including himself, Narender, Parmod deceased, Ashwani and Ajay. Ashwani arrived there after about 10 to 15 minutes after their reaching there. When the Limca was being served, all the persons namely Ashwani, Lala, Ajay, FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 9 of 82 Pramod and himself were present in the room. They remained in the said room for about 15 minutes and during this period nobody left the room. During the stay in the room, the conversation talks were going on amongst all. Nobody took liquor at that time in his presence during those 15 minutes. He affirmed that none of them was having any weapon with them at that time. It was agreed there that next meeting was to be held on next day in his house at Jawahar Nagar. First of all, Ajay, then Lala and then Narender left the room after a gap of 1-2 minutes each and then he left the room on hearing the noise of fire. Ashwani had heard some noises outside the house when they were in the room before the noise of fire. He was present at the gate of the house and he immediately went out after hearing the noise of gun fire. His brother was just behind him and he was also running along with him. When he reached at the spot, Pramod was sitting by holding his head on the spot. When he was shown the gun by accused Lala, he ran towards the East direction as he was facing towards West direction when he was standing. He affirmed that only one fire can take place from the katta at one time before loading again. He affirmed that he had not tried to save deceased Pramod despite knowing the fact that katta was already fired once. He affirmed that he had not disclosed the name of the assailants including Narender on 100 number call while running from spot to Shanti Nagar. He affirmed that his statement was not recorded at Shiv Vihar, Johripur when he met Inspector Narender Tyagi. Statement of his brother was also recorded at the spot at that time and no other statement was recorded of any person at that time at spot. Spot means where the gun shot injury incident had taken place. He had used his brother's mobile FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 10 of 82 phone only when his mobile phone battery had run out. He had not seen the dead body of Pramod at the spot but it was lying in the nearby plot. He had noticed blood trail and mark of dragging from the spot to where the dead body was found. The site plan Ex. PW1/DA was shown to the witness, who stated that same was prepared at his pointing out. He had not seen the house of Narender if the same was situated at Shiv Vihar. He had not visited the house of Narender till that day. He affirmed that he had signed his statements after admitting it to be correct. He affirmed that Ajay had telephoned the in-laws of Shivani for calling them to effect a compromise at their house. Before going to Karawal Nagar, he had informed the family members of Sachin. Again said Pramod was present at the time of marriage of Sachin and Shiwani with him and he was also shown in the photographs. He had not called Sachin from his house for effecting compromise. He had made a telephone call to Narender and asked him "Dar ki to koi bat nahi" and Narender replied that "Dar ki koi bat nahi". He had went to the place as his close friend Narender was to be present. He affirmed that none of them had called Jai Kumar @ Lala for compromise talk. They reached Gagan Cinema at about 10:30- 45 pm on the day of incident. He denied that he took Pramod with him under a conspiracy to kill him. While he was going towards Pramod in order to save him, accused Jai Kumar took out a katta and fired then he returned back.
(ii) PW-2 Ashwani Arya was another eye-witness of the incident got examined by the prosecution. He deposed that on 20- 08-2009, he along with his cousin brother Sanjeev and Pramod were present in Dilshad Garden. Narender had called Pramod and FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 11 of 82 Sanjeev for some compromise regarding some matrimonial dispute of Sachin and Shivani. Ajay and Narender had some conversation on telephone. Narender had called Sanjeev and Pramod to Gagan Cinema and he also accompanied them to Gagan Cinema. When they reached Gagan Cinema, he also met Narender and Jai Kumar @ Laala at Gagan Cinema. Sanjeev, Pramod, Narender and Jai Kumar had some conversation. Narender told Pramod and Sanjeev to come to his house and they will have conversation regarding compromise there. Narender and Lala told them that they should take an auto and go towards Jawahar Nagar, Check Post. Narender and Laala went on motorcycle and they all three i.e. himself, Sanjeev and Pramod went on auto. They all got down at Jawahar Nagar, Check Post where they met Narender and Laala. From there, Narender, Pramod and Sanjeev had gone on motorcycle and he along with Laala were going on foot towards the place where Narender had called them. He reached Shiv Vihar. They all were sitting and talking about compromise. Pramod was standing and Ajay had come and told Pramod to accompany him outside to talk about the matter. Pramod was taken out by Ajay and after some time, Narender also went out of the house. He and Sanjeev only remained inside the house. They remained in the house and waited for 2-4 minutes. After some time, he and Sanjeev went out of the house and saw Pramod being beaten up by Ajay, Narender and Laala. He identified all three accused in the court. When they went towards Pramod to intervene in the fight and to save Pramod, Ajay told Laala, "itni der kyu kar rahe ho iska kaam tamam kar do" Ajay was having saria in his hand and Narender was having danda in his hand and Laala fired on FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 12 of 82 Pramod from Katta. The accused also threatened them that they should run away otherwise, they also would be killed. Since they were fearful, they had run away from the spot. They ran towards Naala, Shanti Nagar. Sanjeev called to the police at 100 number. Police had met them in the way and they accompanied the police to the place of occurrence. At the spot, he did not find Pramod or his dead body. They all searched for him and there was a vacant plot nearby in which 'fatis' and 'rodi' were lying. He saw the dead body of Pramod lying there. Police had picked up the dead body and completed the formalities. Police had called him and made inquiries from him and also recorded his statement. Since it was morning time, he proceeded towards his house.
On the next month i.e. 17-09-09, he had come to the PS for giving a complaint as they were receiving some threats and calls. He lodged his complaint. He also identified the dead body of Pramod vide identification statement Ex. PW-2/A. The witness was cross-examined by Ld. Addl. PP for State as he was resiling from his previous statement.
During cross-examination by ld. Addl. PP for State, he affirmed that Sanjeev is son of his Maternal uncle (Maama). He affirmed that Sachin, who is the brother in law ( Saala) of Sanjeev, had a love marriage with Shivani about 10-11 months prior to the incident. He affirmed that Sanjeev and Pramod were the witnesses in the marriage. He was not confirmed if relatives of Shivani were living in Nand Nagri. He had stated to the police in his statement that relatives of Shivani were living in Nand Nagri as he had heard about the same. He affirmed that Shivani used to go to Nand Nagri that is why the relatives of Shivani had lodged the FIR against Sachin in PS Nand Nagri. He affirmed FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 13 of 82 that matter had reached the court and as per the directions Shivani and Sachin were residing together. He affirmed that about 1-1¼ (month) prior to the incident, Shivani had come to stay with her parents at Shiv Vihar since the relations between Sachin and Shivani were not good. He affirmed that accused Ajay, who was the brother of Shivani, used to tell the in-laws of Shivani to come to Shiv Vihar for compromise. He affirmed that on 20-08-2009 as per the pre-determined programme, he along with Sanjeev and Pramod had reached Gagan Cinema at about 10:30 pm. He affirmed that accused Narender and Jai Kumar @ Laala had met them at Gagan Cinema. He affirmed that accused Narender was previously known to Sanjeev. He along with accused Jai Kumar @ Laala had reached the house which was situated in Gali No.-9, Phase-10, Shiv Vihar. He affirmed that the time was about 11:30/11:45 pm and Sanjeev, Pramod along with accused Ajay and Narender were already sitting in the room. He affirmed that at about 12:15 am, Ajay had told Pramod that he had to separately talk to Pramod and for that purpose Ajay had caught hold of the hand of Pramod and took him outside in the Gali. He further affirmed that soon after accused Laala and Narender also told them to sit in the room and they would soon return. He affirmed that he and Sanjeev had come out of the room and saw the accused persons were beating Pramod in the corner of the Gali (Nukad). He affirmed that Ajay had told Laala "der kyu kar raha hain maar saale ko iska kaam tamam kar de ". He affirmed that after Laala had fired on Pramod, Pramod had fallen down on the ground. He affirmed that Laala had told them that "ki saale bhag jao nai to tumhara bhi yehi haal hoga". He affirmed that at about 2:00 am, police had met them at Shiv FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 14 of 82 Vihar, Tiraya (T-point). He affirmed that he had seen the face of deceased Pramod had been smashed. He affirmed that there were injuries on the head of the deceased and it was also bleeding. He affirmed that some bricks were lying and he saw three bricks were blood-stained. He affirmed that he had also stated that Pramod had died due to injuries caused by Ajay, Narender and firing by accused Laala. He affirmed that his statement was also recorded on 21-08-2009 in the morning. He affirmed that he and Sanjeev had seen the dead body of Pramod in GTB Hospital mortuary. He affirmed that he had been receiving threats from the side of accused persons that he should depose in court after thinking over otherwise, he will also suffer the same fate as Pramod. He affirmed that he was still in danger and he also told that if anything happen to him or his family, the three accused would be responsible.
During cross-examination by ld. Defence counsel, he affirmed that Sanjeev and Pramod were the witnesses in the marriage. He affirmed that on 20-08-2009, as per the pre- determined programme, he along with Sanjeev and Pramod had reached Gagan Cinema at about 10:30 pm. He affirmed that accused Narender and Jai Kumar @ Lala had met them at Gagan Cinema. He affirmed that at about 12:15 am, Ajay had told Pramod that he had to separately talk to Pramod and for that purpose Ajay had caught hold of hand of Pramod and taken him outside in the gali. He affirmed that Lala had told them that " ki saale bhag jao nahi to tumhara bhi yehi haal hoga ". Sanjeev, Pramod and Narender were sitting on the cot whereas he and Jai Kumar @ Lala were standing. The talk had ended in a peaceful manner even any altercation did not take place in between the FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 15 of 82 talks. After their reaching, accused Jai Kumar remained there for about 5-7 minutes and thereafter, he left but he did not tell them as to where he was going nor anybody enquired him as to where he was going. Nobody had taken wine there. He had not noticed any arm (weapon) with any of the occupants in the room. Accused Jai Kumar did not return to the room after leaving the house after remaining 5-7 minutes there. All other persons remained inside the room. He and Sanjeev were sitting in the room. When they heard the noise of firing, he and Sanjeev came out of the room. He knew the distinction between the noise of bursting of bomb/ crackers etc. and noise of firing from the firearm. However, the noise which he and Sanjeev had heard while sitting in the room was of firearm. The streetlight was situated at the distance of about 25 steps away from that house. He had found Pramod in injured condition near T point/ electric pole. Narender and Ajay were beating him with iron rod and wooden logs (danda). He had seen body of Pramod lying on the brick made road. He had not seen firearm injury on the person of Pramod. They did not stay at that point and were forced to run from that place. He had seen Narender inflicting danda injury by holding danda in his both hands. Perhaps the danda was made of bamboo. He had seen Narender inflicting danda on the body of Pramod but he had not noticed as to on which part of his body the danda was inflicted as he was in hurry and frightened. He and Sanjeev had stayed at that spot for one or two seconds and thereafter forced to leave. Sanjeev had given call at number 100 also. He had seen accused Ajay and Lala chasing them for some distance. Sanjeev had called the police at 100 number while running. He had seen the name plate of one of the police FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 16 of 82 officials and he was Narender Tyagi but he could not tell his rank. Statement of himself and Sanjeev were recorded by the police there. The body of Pramod was found in a vacant plot across the road and not at the point where the incident had taken place.
To to question regarding specific size of each bricks, he could not tell the exact size but it was normal bricks which was found often in brick kiln. There was blood on these three bricks.
In his presence, those bricks were not wrapped in any cloth or sealed as parcel. He was shown the seizure memo of bricks as Ex. PW1/B and he deposed that it did not bear his signature. IO had taken into possession the iron rod, wooden log at the time when the bricks were taken into police possession. At that time, accused Narender was not present there. Accused Ajay was also not present. He affirmed that complaint which he had lodged at PS on 17-09-2009 about receiving threats and calls, has not been shown to him during the present trial. He had lodged only one report. He was never called for any compromise talk by the parents of Sachin or Shivani or Sanjeev. He knew accused Narender prior to the incident and he saw the other accused on that day and he came to know the names of Jai Kumar and Ajay on that very day on formal introduction which took place near Gagan Cinema at about 10- 10:15 pm. He affirmed the fact that Ajay used to call Sanjeev and Pramod for compromise. He was aware that family members of Shivani had lodged complaint/ case subsequent to the marriage between Sachin and Shivani. He was not a witness to any of the memos prepared by the police.
(iii) PW8 Sachin Pawar, deposed that in the year of 2008, the parents of Shiwani Sharma started living in his neighbourhood FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 17 of 82 alongwith Shiwani and her three brothers namely Ajay, Vijay and Monu. Being the neighbour of Shiwani, he met her and intimation developed between them and thereafter, they started to meet each other and this meetings converted into love affair. When this fact came to the knowledge of her parents and brothers, they started giving beatings to Shiwani. Due to beatings given by her parents and brothers, Shiwani left her house on 10.09.2008. On the same day, the mother of Shiwani came to his house and she told that her daughter went missing and she developed suspicion upon him. She further told that they got registered a case against him regarding kidnapping of her daughter at PS Nand Nagari. On the same day, at about 5.00 p.m, Shiwani made a call to him and told him that she was at Shahdara Railway Station at that time and asked him to come there. She further told him that if he failed to come there, she would die. Accordingly, he went at Shahdara Railway Station. On reaching there, Shiwani met him and she told him that her brothers gave severe beatings to her and she further told that she would not go back to her house. He called his brother in law (jija) namely Sanjeev at Shahdara Railway Station and Sanjeev tried to make her understand but she refused to go back to her house. Thereafter, they took Shiwani to the house of Sanjeev at Dilshad Garden. PW8 did not remember the exact date but stated that it might be 11/12 September 2008, they got married in Arya Samaj Mandir, Jamuna Bazar, Delhi in the presence of his Mama namely Pramod (deceased) and his brother in law namely Sanjeev. From Arya Samaj Mandir, they went to Dilshad Garden at the house of Sanjeev and they started living there together.
PW8 further testified that on 29.09.2008, Shiwani FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 18 of 82 appeared before the Court at Karkardooma, Delhi and as per the order of the court, they started living together at Dilshad Garden, Delhi. they stayed at Dilshad Garden as husband and wife for about ten months. During that period, the parents of Shiwani had sold out their house at Jawahar Nagar and started living at Shiv Vihar. During the above said period of ten months, Shiwani did not allow him to meet his parents and due to this reason, differences created between them and there used to be quarrel between them on this issue almost daily.
PW8 further deposed that on 08.07.2009, Shiwani left him and went to her parents at Shiv Vihar and she refused to come back at Dilshad Garden through telephone. On 11.07.2009, Ajay, Lala and Narender came to his house. He was not aware of the relation of Lala with Ajay and his family). On reaching his house, they all three threatened him to kill him and his family members as he had married with Shiwani. Thereafter, he received threatening calls through phone no. 9716602368 and 9871100547. The later phone number was of Ajay. The above said threatening calls were received on mobile phone number of his father i.e. 9999329311. Thereafter, he moved an application at Tis Hazari Courts, Delhi for divorce but he do not remember the exact date, when it was moved by him. The threatening calls used to come continuously. Being scared, he left Dilshad Garden and went to Village Soram, District Mujjafarnagar, U.P. where his maternal uncle Pramod used to reside. There also, he received the threatening calls from the above said persons on his mobile phone, the number of which he did not remember. He told the fact of threatening calls to his mama Pramod. Thereafter, his mama Pramod and accused Ajay used to talk through mobile FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 19 of 82 phones. He also used to receive the threatening calls from other mobile phone being used by accused Ajay. One day, his mama Pramod was called by Ajay telephonically for settlement. Thereafter, on 20.08.2009 he alongwith his mama Pramod came to Jawahar Nagar at his house. At Jawahar Nagar, his mama Pramod told him at about 7.00 p.m on 20.08.2009 that he alongwith Sanjeev would go to Shiv Vihar at the house of Ajay for settlement. After saying the above said fact to him, his mama left the house for Dilshad Garden where Sanjeev used to reside.
PW8 further deposed that thereafter, at about 10.00 p.m, Pramod made a call to him and told him that he was at Shiv Vihar at the house of Ajay and Ajay, Vijay and Lala were with him there. On the same night at about 1.00 am, he came to know that the above said persons committed murder of his mama Pramod. He had also handed over the documents pertaining to his marriage and divorce with Shiwani to the police and same were taken into possession vide memo Ex.PWB/A. He had also given the photograph of his marriage with Shiwani to the police and it was also taken into possession by the police vide the aforesaid memo. The photograph on record is Mark A, copy of petition bearing HMA case no.160/2009 dated 15.07.2009 is mark B, copy of affidavit mark C, copy of application U's 14(1) of HMA is mark. D. Copy of affidavit mark & which bear my signatures at point A & B, copy of marriage certificate mark. F. copy of order dated 30.09.2008 is mark G and copy of marriage deed is mark H which bears my signatures at pout A. The witness correctly identified accused Ajay, Lala and Narender in the court.
During cross-examination by Ld. Defence counsel, after FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 20 of 82 reading Ex. PW8/DB (divorce petition), PW8 affirmed that there was no mention of the particular incident of 11-07-2009 in the petition and also affirmed that accused Narender was not mentioned anywhere although there were allegations of advancing threats by other accused persons. He denied that no incident had taken place on 11-07-2009 and that he had inserted the name of Narender after filing the divorce petition on the asking of Sanjeev Kumar and police.
(iv) PW9 Balwant Singh was the owner the house where compromise talks took place between the parties. He deposed that he has been doing the business of chemical and permanent resident of Village Bhool, PS Sumeshwar, Distt. Almora, Uttrakhand. Perhaps in June, 2008/09, he had purchased a house situated at Gali no. either 7 or 9, Shiv Vihar, Phase-10, Delhi. After purchasing the above-said house, he continued living at Vijay Park and the said house in Shiv Vihar remained vacant. Accused Ajay Kumar, present in the court, was known to him as he was residing at Maujpur. Accused Ajay Kumar was constructing his house at Shiv Vihar after 2-3 gali where his house was situated. Accused Ajay demanded key of his house of Shiv Vihar for putting his articles there. Accordingly, he gave the same to him.
On 21-08-2009, he received a telephone call and came to know that a murder had been committed at his house in Shiv Vihar. He could not say as to who had given the telephone call. He came to know that a relative of Ajay had been murdered. After one month, he was called to the police station and his statement was recorded. Police had not demanded anything from him. Again said he had given a copy of GPA of his house at Shiv FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 21 of 82 Vihar to the police which was seized by the police vide seizure memo Ex. PW9/A and the photocopy of said GPA on record is Mark-A. He did not bring the original GPA as he had already sold his above-said house.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(v) PW-10 Smt. Shakeela deposed that she is housewife. Around the year 2009, she had purchased a mobile phone and Sim Card of Vodafone in her name after submitting her ID proof i.e. photocopy of her Voter card. She had never purchased any other SIM card on said ID. She did not know about the SIM card number 9213545304 as the same was not purchased by her at any point of time. She did not know any person in the name of Narender s/o Harish Chand. She had not procured any SIM card to him on her ID proof.
To a leading question put up by Ld. Addl. PP for State, she affirmed that she had purchased Vodafone Sim number 9873106985 from Bajrang Communication, Rajeev Nagar in the year 2007.
She was not cross-examined by accused persons despite having given the opportunity.
(vi) PW-11 Vipin Sharma was the owner of the vacant plot from where the dead body eas recovered. He deposed that he has been doing work of supply of building material. In the year on 2009, he had one plot situated at main 25 Foota road, phase X, Shiv Vihar, which was near to his above said house. On 20.08.2009, he went to sleep at his house at about 9.30 PM and on the next morning at about 5.30 AM, he woke up and found that many police officials were present at his plot which was FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 22 of 82 surrounded on three sides and opened from one side. On seeing the police, he went to his above said plot and came to know that the dead body of one person was found lying in his above said plot. He had not seen anything there except the police personnel. Dead body was not there. He could not say where the dead body was taken away. Police did not ask him anything. He volunteered that it was after one month, he was asked about the papers of his plot. Accordingly, he handed over the original papers of his plot. Thereafter, he had taken the said papers back and gave the photocopies. Photocopies were seized by the police vide seizure memo Ex. PW 11/A [GPA, Agreement to Sale and receipt and possession letter (6 pages)]. Copy of GPA dated 06.03.2000 is mark PX, Agreement to Sale is mark PX1, Receipt is mark PX2 and possession letter is mark PX 3. Document mark PX1, PX3.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(vii) PW12 Prahlad Singh deposed that he had purchased a motorcycle no. DL1SQ-6026. He did not remember the year of purchase of the motorcycle but it was purchased about 6-8 years ago. On 21.08.2009, he had to gone to his village and there was no petrol in the said motorcycle and therefore, he had gone to Gokul Puri Petrol pump. After taking petrol when he was coming back via Shiv Vihar pulia, he found four policemen standing there. They stopped his motorcycle. They asked him to show the documents of the said motorcycle. He showed them the documents but the RC was not with him. He told them that RC may be with his son who used to drive the motorcycle. On this, the police persons said that he was telling lie to them and that he FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 23 of 82 had stolen the said motorcycle. They asked him to bring the RC to the Police Station Karawal nagar and take back the motorcycle from there. Thereafter, on the same day i.e 21.08.09, he went to the PS at about 8.00 a.m with the RC (original) of the motorcycle and handed over the same to the police. After receiving the RC in original from him, the police officials did not release the motorcycle to him and asked him to come on the third day. On the third day, he again went to PS Karawal Nagar but on that day the police did not release his motorcycle to him and asked him to come on following Monday. Then he went to the SHO of PS Karawal Nagar and he asked him that his motorcycle has been shown by them in some case. He has not received his motorcycle back till that day.
Ld. Defence Counsels did not dispute the identity of the said motorcycle and therefore identification of the said motorcycle was dispensed with.
The witness was cross-examined by Ld. Addl. PP he was resiling from his earlier statement given to the police. In his cross-examination, he stated that he did not know accused Jai Kumar @ Lala. He volunteered that he heard his name that day. He denied that Jai Kumar @ Lala was known to him and was residing in his neighborhood. At that stage, on pointing out towards Jai Kumar @ Lal, the witness said that he does not know him nor he had seen him ever before. He denied that he was deposing falsely in this regard and accused Lala was well known to him. He denied that he also knew Shri Niwas who was the father of Jai Kumar @ Lala. He denied that on 20.08.09 father of Jai Kumar namely Shri Niwas made a call to him and requested him to hand over his motorcycle to Jai Kumar as Jai Kumar had FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 24 of 82 to go to court for date (tarikh) or that at about 10.15 a.m accused Jai Kumar came to his house and taken away his above said motorcycle and it was so stated in his statement u/s 161 Cr. P.C dated 25.08.09. He denied that later on he came to know Jai Kumar and other boys committed murder and they apprehended along with motorcycle or that his motorcycle had been seized by the police and he stated so in his statement u/s 161 Cr. P.C dated 25.08.09. He denied that thereafter he went to the house of Lala in the evening and till that time his motorcycle was not brought there or that father of Lala told him that Lala might have gone to the house of his maternal uncle and he stated so in his statement u/s 161 Cr. P.C dated 25.08.09 mark A. He further denied that on 21.08.09 in the morning he went to PS Krawal Nagar where he had identified Jai Kumar @ Lala while saying that he was the same person who had taken away his above said motorcycle or that he had also identified his motorcycle in the PS itself and he stated so in his statement u/s 161 Cr. P.C dated 25.08.09 mark A. He denied that on 25.08.09, he again went to PS Karawal Nagar with regard to his motorcycle and on that day he had handed over the RC of the motorcycle to the police which was taken into possession vide memo. He denied that he was deposing falsely in this regard.
At that stage seizure memo Ex. PW 12/A was shown to the witness and witness identified his signatures on it at point A. He denied that he had signed the above said document when he had given the RC to the police on 25.08.009.
At that stage RC Ex. PW 12/B was shown to the witness and witness identifies it to be the same. However, he denied that it was handed over by him to police on 25.08.09. He Volunteered FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 25 of 82 that the same was given to the police on 21.08.09. He denied that he was deposing falsely in this regard. He denied that accused Jai Kumar @ Lala was known to him and he had given his motorcycle to him on 20.08.09 and he was apprehended by the police along with his motorcycle. He denied that he had also identified Jai Kumar @ Lala in the PS on 21.08.09 while saying that he had taken away his motorcycle on 20.08.09. He denied that he was not intentionally deposing the true facts as he had been won over by the accused persons.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(viii) PW-16 Surender Bhardwaj deposed that he has been doing the business of Property Dealing. His brother-in-law ( saala) Ram Kishan was residing at Shiv Vihar and he had expired 5-6 months ago. Ram Kishan had four sons namely Ajay, Bittoo, Monu and Arvind and one daughter. Arvind and Monu had expired. Ajay and Bittoo were working at Gandhi Nagar and he used to visit them.
In the month of February, 2009, he had got issued one sim card from Airtel company, the number of the said sim card he did not remember. The said sim card was got issued by him after submitting the photocopy of the document of his flat. Thereafter, he had given the said sim card to Ajay as he was not having any sim card because he could not get the same in the absence of any document of identity. The said sim card was used by Ajay only. After the registration of the present case, police officials came to his house and at that time, he was not present at his house and they asked him on his phone to reach at the PS. Accordingly, he went there and they inquired about the sim card and he disclosed FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 26 of 82 all the facts to them. His statement was recorded by the police. He did not give anything to the police officials. He identified accused Ajay in the court.
Ld. Addl. PP for State put some leading questions to the witness. He did not remember as to whether he had given a photocopy of the documents pertaining to the ownership of his flat. The seizure memo Ex. PW16/A was shown the witness and he identified his signatures on it at point A. He affirmed that same was prepared by the police when he handed over the photocopy of the document pertaining to the ownership of his flat. He did not remember whether the sim number of the mobile which he had obtained and given to Ajay was 9871100547 as he had not used the same. On that day, he came to know that the number of that sim was 9871100547.
The witness was cross-examined by the Ld. Defense counsel but nothing material came out therein.
(II Formal witnesses/ Expert witnesses)
(i) PW3 Dr. Meghali Kelkar, Senior Demonstrator, Deptt. of Forensic Medicine, GTB Hospital, Delhi deposed that on 21-08- 2009, she conducted postmortem examination on the body of Pramod, 30 years male, son of Dharampal, who had alleged history of gun shot injury vide DD No. 43-A dated 20/21.8.09 at 12.30a.m. P.S. Karawal Nagar. X-ray of Head, Neck and Chest plate No. 7838/09 were done and no radio-opaque foreign body shadow was seen. On general observations, the dead body was found to be of a person having average built, was wearing white shirt, white trouser, waist baniyan (Jockey printed on it) and mustard yellow underwear and it was blood and mud stained. Both black eyes were seen. Eyes and mouth were closed. No FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 27 of 82 abnormality was detected on all other natural orifices. Rigor mortis was present all over the body in developed stage. Postmortem staining present over the back and fixed. No signs of decompositions were seen.
Following external ante-Mortem Injuries were seen:
1. Lacerated wound 2 x 0.4 cm bone deep present on left occipital region, 2 cm medial to left ear and 2 cm above occipital protuberance.
2. Lacerated wound measuring 2 x 0.5 cm x bone deep present on right parietal region 6 cm away from midline and 8 cm above of night ear.
3. Lacerated wound measuring 2 x 5 cm x bone deep present on left parietal region, 10 cm above left ear and 10 cm of occipital protuberance.
4. Lacerated wound measuring 4.2 x 0.5 cm x bone deep present on frontal scalp horizontally placed 6 cm above right eyebrow and right end 11 cm above right ear.
5. Lacerated wound 2 x 0.5 cm present over right ear parallel to helix of right ear pinna.
6. Lacerated wound 4.5 x 0.2 x bone deep cm present on right face, 2 cm medial to tragus 14 cm below injury no. 2 with underlying fracture of light maxilla, right zygomatic-arch with extravasation of blood present in soft tissues and muscles.
7. Lacerated wound measuring 13 x 4 cm x bone deep present on right face extending upto left side just below eyebrows, 10 cm medial to left ear with underlying multiple fractures of nasal bone, orbital walls, right and left maxillae, fracture dislocation of teeth, fracture and dislocation of maxillary and mandibular teeth and other underlying facial bones with multiple bone fragments FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 28 of 82 were seen in the embedded in the soft tissues. Margins of the wound were contused and abraded with extravasation of blood seen in the soft tissues and muscles of the face.
8. Lacerated wound 4 x 0.2 cm into bone deep present on right lower face. 1.5 cm below right angle of mouth. 11 cm of below right eyebrow and 1 cm from midline with underlying fracture of mandible with extravasation of blood seen in the soft tissues and muscles.
9. Tramline like reddish blue contusion 12 x 2 cm with intervening non-contused area of width 0.8 cm present on right anterior axillary fold and upper arm, 23 cm above elbow joint.
10. Tramline like reddish blue contusion 20 x 2.5 cm with intervening non-contused. Area of width 0.8 cm present on right side neck and upper chest obliquely placed with centre of the wound 9 cm below shoulder top.
11. Tramline like reddish blue contusion 15 x 2cm with intervening non contused. Area of width 0.8 cm present over abdomen with centre of wound lying in midline and 26 cm below suprasternal notch.
12. Tramline like reddish blue contusion 13 x 2 cm with intervening non contused. Area of width 0.8 cm present obliquely on the abdomen with centre of wound 29 cm blue suprasternal notch and in midline.
13. Tramline like reddish blue contusion 14 x 2 cm with intervening non contused. Area of width 0.8 cm present horizontally on abdomen with centre lying in the midline and 31 cm below suprasternal notch.
14. Lacerated wound 0.5 x 0.5 cm bone deep present on anterior aspect on right leg. 15 cm below right knee joint surrounded by FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 29 of 82 abrasion in an area of 1 x 1 cm.
15. Lacerated wound 0.5 x 0.5 cm bone deep present on medial aspect of right leg. 4.5 cm below injury No. 14 surrounded by abrasion 1.5 x 1 cm.
16. Lacerated wound 1 x 0.5 cm bone deep present on medial aspect of right leg. 3.5 cm below injury No. 15.
17. Lacerated wound 0.5.x 0.5 cm bone deep present on anterior aspect of left leg. 15 cm below knee joint.
18. Lacerated wound 1 x 0.5 cm bone deep present on infralateral aspect of left leg. 6 cm below injury No. 17 surrounded by abrasion 1 x 1 cm.
19. Lacerated wound 1x0.5 cm bone deep present on inframedial aspect of left leg with underlying fracture of left tibia bone 2.5 cm below injury No. 18 surrounded by abrasion 2 x 1 cm.
20. Lacerated wound 5 x 1cm bone deep present on right side of lower lip and nuco cutaneous surface surrounded by contusion and abrasions with underlying fracture maxillary and mandibular teeth. The wound is involving through and through thickness of the lip.
The Internal Examination report is as under:
Scalp: Extravasation of blood seen under the scalp over right parietal right temporal and occipital region hemorrhage was seen in right temprolas muscle. Linear fissuid fracture of base of skull as shown in figure drawn in the postmortem report. Brain 1250 grams with subdural and subarachnoid hemorrhage seen over bilateral cerebral hemispheres contusions present on base of both right and left frontal lobes. Neck NAD Rib Cage NAD. Right and left lung 450 grams and 400 grams each Heart 220 grams NAD. Stomach empty and intestines contained fluid and gases with FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 30 of 82 walls NAD. Liver 1250 grams, spleen 150 gram, right and left kidney 110 grams each and are NAD. Pelvis, Vertebrae, Urinary Bladder NAD.
Following articles were preserved :
1.Sealed envelope containing blood of gauze of the deceased
2. Sealed pulanda containing clothes of the deceased
3. Sample seal Opinion: Time since death was about 12 hours. Cause of death was shock as a result of ante-mortem injury to head produced by blunt force impact. Injury No. 6 and 7 independently and collectively sufficient to cause death in ordinary course of nature.
Subsequent Opinion:
Received an application regarding subsequent opinion in the present case and three pulandas each containing the weapon of offence from Insp. N.K. Tyagi P.S. Karawal Nagar. On examining the pulanda No. 1 made of white plastic gunny bag with a white cloth tied around the neck sealed with two intact seals of NK said to be containing the weapon of offence three bricks. On opening the bag, three orange colour brick having No. 1 SBF No.2 PRB, NO. 3 MKF engraved on the front side of each brick respectively. Brick with SBF engraving measured 21 x 10 x7 cm with broken right upper, left upper side and corners. Mud and Radios Brown stains at places. Weight was 2.5 kg.
The brick with MKF engraving was 22 x 10.5 x 6.5 cm broken at corners and places. It had reddish brown and mud stains at places weight was 2.5 kg.
The brick having PRB engraving was 22 x 10.5 x 6.5 cm FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 31 of 82 with broken corners and places, having reddish brown and mud stains weight was 2.5 kg.
On opening the pulanda No. 2 said to be containing the weapon of offence danda had two intact seals of NK. On opening a wooden stick measuring 113 x 2.5 cm splintered at 85 cm with a piece of wood peeled off 30 cm till end, had three jointed, reddish brown stains present on frontal back upper and lower segment.
On opening the pulanda No. 3 said to be containing the weapon of offence saria. On opening a metallic saria measuring 134 x 1 cm bent at 90 cm above lower end. Upper and lower end are blunt. RATHI was engraved on it and had curved pattern.
Opinion:
Injury No. 1 to 6 can be possible by all the three weapons i,e brick, danda and saria or by weapons of same type. Injury No. 7 was possible by any of the three bricks or of same type. Injury No. 8, 14 to 20 can be possible by all the three weapons i.e. bricks, danda and saria or by weapons of same type. Injury No. 9 to 13 can be possible by saria or by weapon of same type.
After examining the weapons, they were signed by her and sealed in leveled pulandas and handed over to the IO along with the opinion was handed over to the IO.
She proved her report as Ex. PW-3/A and subsequent opinion dated 14-09-2009 as Ex. PW-3/B. She identified the case property i.e. three bricks having engravings of SBF, MKF, and PRB as Ex/. P-1,P-2 and P-3; one saria as Ex. P-4; and one danda as Ex. P-5 During cross-examination by ld. Defence counsel, she FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 32 of 82 deposed that time since death which were given as 12 hours in the post mortem report is calculated till starting of post mortem. She affirmed that there was no gunshot injury on the body of deceased found and also not mentioned in Ex. PW3/A (PM report). She affirmed that dimension pertaining to bricks having SBF engraved was not matching with the diagram of the said brick mentioned in her opinion report Ex. PW3/B. She volunteered that it was merely a clerical mistake and instead 21 cm. She had written the length of the brick as 10 cm. She affirmed that his mistake was not rectified by her in the report Ex. PW3/B. She had not found any part of brick on the face of the deceased during the postmortem of deceased. She affirmed that Ex. P-5 danda is in dimension which is contrary to the dimension or diagram mentioned in opinion report Ex. PW3/B as in the diagram the danda had curve on its bottom like hockey shape/ golf shape. She affirmed that Ex. P-5 having no curve/splintered end. She volunteered that the danda was having splintered at one end at 85 cm and it might had been broken, however, it was not broken when she sealed it. She denied that the opinion given regarding the danda which she had given was not the P-5 (danda) which was produced in the court. She affirmed that when she sealed P-5 danda, it was not in two pieces as found in the court on that day. It was possible that if a person is hit with brick on his face by anyone, then the blood may come on the fingers of the person who hits with the brick, if the brick is held in hand while causing the injuries. She affirmed that she did not find any peculiar patten of finer prints on the brick while giving the opinion for the same. She volunteered that her job was only to see the presence of blood stains on the brick and it FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 33 of 82 was not in her duty to observe the finger pattern of the same. She affirmed that blood stains can be fabricated on the bricks, danda, and saria, if the same is sprinkled on it. She affirmed that injury no 6 and 7 as mentioned in the postmortem report, can be possible if the person is thrown or falls from a considerable hight on the bricks lying on the ground. She denied that she had prepared the PM report Ex. PW3/A and given the subsequent opinion Ex. PW3/B which is false and fabricated and same were prepared as per the directions of IO of the case.
(ii) PW-17 Pradeep Katmar Sharma, DGM, BSES, Yamuna Power Ltd. Delhi deposed that in the year 2009 he was DGM (Operation and Maintenance) of Karawal Nagar Division. Inspector N. K Tyagi had moved an application before him for seeking certain information regarding supply of electricity in the area of Shiv Vihar vide Ex. PW 17/A. He had marked this application to Mr. B. P Sharma St. Manager (O&M). This application was further marked to Mr. R. K. Sharma, JR. Manager. The above said Sr. Manager and Jr. Manager had given their reports regarding the position of electric supply in the intervening might of 20/21.08.2009 from 10.00 pm to 5.30 am in the area of Shiv Vihar, Phase 10 on the basis of official record overleaf the above said application. On 15.11.2009, he had also given his report in above regard which is Ex. PW 17/B. As per his report there was neither any shut down nor break down in the area of Shiv Vihar Phase 10 on the above stated date and time. Thereafter, he had forwarded his report to Addl. SHO Karawal Nagar. The report of Sr. Manager Mr. Bijender Pal was proved as Ex. PW 17/C and the report of Jr. Manager Mr. R.K. Sharma was proved as Ex. PW 17/D. FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 34 of 82 The witness was cross-examined by the Ld. Defense counsel but nothing material came out therein.
(iii) PW-20 Yogesh Tripathi was the Alternative Nodal Officer of Reliance Communication Ltd. He has proved Customer Application form, subscriber documents and CDR of mobile no. 9313901155 for the period 01-08-2009 to 24-08-2009 and certificate u/s 65B of Indian Evidence Act as Ex. PW20/A to Ex. PW20/D respectively.
The witness was not cross-examined by accused persons despite having given the opportunity.
(iv) PW-21 Rajeev Ranjan was the Nodal Officer of Tata Tele- services Ltd. He has proved Customer Application form, CDR of mobile no. 9213545304 for the period 01-08-2009 to 20-08- 2009, Cell ID chart and certificate u/s 65B of Indian Evidence Act as Ex. PW21/A to Ex. PW21/D. The witness was not cross-examined by accused persons despite having given the opportunity.
(v) PW-22 HC Narender deposed that on 09-11-2009, he took one sealed parcel from MHCM of PS Karawal Nagar and deposited the same at FSL Rohini vide RC no. 80/21/09.He proved that there was no tampering with the case property so long as it remained in his custody.
The witness was not cross-examined by accused persons despite having given the opportunity.
(vi) PW22 Israr Babu was the Alternate Nodal Officer of Vodafone. He has proved Customer Application form, and CDR of mobile no. 9711453695 in the name of Sachin Panwar for the period 01-08-2009 to 21-08-2009 and certificate u/s 65B of Indian Evidence Act as Ex. PW22/A to Ex. PW22/C FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 35 of 82 respectively.
The witness was cross-examined by Ld. Counsel for accused but nothing material came out therein.
(vii) PW-23 ASI Om Prakash was the MHCM at PS Karawal Nagar at the relevant time. He has proved the entries made by him in register no. 19 with regard to deposit and dispatch of case property from Malkhana of PS Karawal Nagar; necessary road certificate issued by him and acknowledgment obtained from FSL. The record proved by him are Ex. PW23/A to Ex. PW23/Q1.
The witness was not cross-examined by accused persons despite having given the opportunity.
(viii) PW-24 Surender Kumar was the Nodal Officer of Bharti Airtel Ltd. Deposed that the record i.e. CDR, CAF, and location chart pertaining to mobile no. 9910478956 and 9871100547 for the period 20-08-2009 to 21-08-2009 could not be retrieved from the system due to 'constant upgradation and various hours of downtime in their system". The letter in this regard of Bharti Airtel Ltd. was exhibited by him as Ex. PW24/A. The witness was not cross-examined by accused persons despite having given the opportunity.
(ix) PW-25 ASI Hari Om was the police official who was assigned the task of collecting FSL result from FSL Rohini on 02-02-2010. He deposed correctly about the role assigned to him.
The witness was not cross-examined by accused persons despite having given the opportunity.
(x) PW-26 Sh. K. C. Varshney, Dy. Director, FSL, Rohini was the ballistic expert who examined the recovered fired empty FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 36 of 82 cartridge and country made pistol. He has proved the report prepared by him as Ex. PW26/A. The witness was not cross-examined by accused persons despite having given the opportunity.
(xi) PW-27 Rajesh Kumar was the DCP concerned who had proved sanction u/s 39 of Arms Act accorded by him for prosecuting against accused Jai Kumar @ Lala on 03-02-2010 as Ex. PW27/A. The witness was not cross-examined by accused persons despite having given the opportunity.
(xii) PW-28 Dr. Rajender Kumar was posted as Asstt. Director (Biology), FSL Rohini in the year 2009. He examined 8 sealed parcels received from PS Karawal Nagar. He proved the report prepared by him as Ex. PW28/A and Ex. PW28/B. The witness was not cross-examined by accused persons despite having given the opportunity.
(xiii) PW-6 ASI Darshan Singh deposed that in the intervening night of 20/21-08-2009, he was working as Duty Officer. He has proved the factum of registration of FIR as Ex. PW6/A; endorsement made on the rukka as Ex. PW6/B; DD no. 40A as Ex. PW6/C regarding Inspector N. K. Tyagi leaving the PS in Govt. vehicle no. DL1CJ-5295 along with Ct. Khem Chand for night checking in the area of Gokalpuri and DD no. 43A regarding information received at PS about firing by firearm of a person at Gali no. 11, phase 10, Shiv Vihar and caller was having apprehension of his death.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xiv) PW5 SI Jagendra Kumar deposed that on 20-08-2009, he FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 37 of 82 was posted as ASI at PS Karawal Nagar and working as Duty Officer. At about 10:55 pm, HC Satish, Ct. Narender, Ct. Malkeet had left for night patrolling in the area of beat no. 1 and 2 of PS including Ambedkar Vihar. Ct. Ishwar, Ct. Gopal, Ct. Dharmender had left for night patrolling in the area of beat no. 3 and 4, near Kali Mandir, near Mayur Public School, Ct. Uday Bhan, Ct. Ramesh and Ct. Sanjay had left for night patrolling in the area of beat no. 5 and 6 including the area of Maha Laxmi Enclave, Babu Nagar, HC Pargesh, HC Jitender, Ct. Nishant had left for night patrolling in the area of beat no. 7 and 8 including Chauhanpur Theka, Ct. Goldy, Ct. Raj Kumar and Ct. Aadesh had left for night patrolling in the area of beat no. 9 and 10 including Pushta Road. They were given arms and ammunition as per entry made in Malkhana register vide DD no. 53B Ex. PW5/A. The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xv) PW-7 SI Mukesh Kumar Jain was the draftsman who proved the scaled site plan as Ex. PW7/A, which was prepared by him on 16-09-2009 at the request of IO.
The witness was cross-examined by ld. Defence counsel but nothing material came out therein.
(xvi) PW-15 Ct. Narender Kumar was the police official who was assigned the task of depositing the exhibits at FSL Rohini on 30-09-2009 and also on 01-10-2009. He has proved the acknowledgment receipt of FSL Rohini as Ex. PW15/A. He claimed that till the time the exhibits remained in his custody, same were not tampered with in any manner.
The witness was cross-examined by the Ld. Defense FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 38 of 82 counsel but nothing material came out therein.
(III Investigating Officials)
(i) PW4 SI U. Balashankaram was the in-charge of crime team. He deposed that on 21-08-2009, he was present in his office of Crime Team, and on receipt of information at his office regarding the incident, he along with team staff including photographer Ct. Sanjay Kumar had gone to the spot i.e. open plot used for keeping building material near crossing of gali no. 9 and 9A, 25 foota road, Phase 10 Shiv Vihar, Delhi. He saw dead body of a young person whose name was revealed as Pramod later on lying there in pool of blood. ASI Vijay Singh Bisht along with other local police officials were also present there. He inspected the spot between 3:30 am to 4 am. Nine photographs were taken by Ct. Sanjay as Mark PX1 to PX9. He prepared SOC visitation report as Ex. PW4/A. During cross-examination by Ld. Defence counsel, he deposed that he had not given anything in writing or intimation to any senior officer prior to leaving for the spot stating that he was leaving for the spot of incident. Besides photographer Ct. Sanjay, one driver and one finger print proficient had accompanied him to the spot. He did not remember if there was any blood mark on the road on which the entry gate of the said plot opened. He had not examined the road outside the plot. He had instructed the IO to collect earth control, blood mixed soil, three blood stained bricks which he had mentioned in his report. Finger prints were not lifted from the spot. It was put to the witness that whatever articles connected with the present case was noticed by him at the time of inspection was mentioned in his report Ex. PW4/A and whatever he had not noticed at that FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 39 of 82 time did not find mentioned in the report Ex. PW4/A to which after taken sufficient time around 2-3 minutes, he replied that everything was not possible to mention in the report.
(ii) PW-13 ASI Vijay Singh was the police official who was performing emergency duty on the intervening night of 20/21-08- 2009. He claimed that at about 12:30 am, he received DD no. 43A (Ex. PW13/A) and he along with Ct. Hem Raj went to the spot i.e. Gali no. 11, Phase-10, Shiv Vihar on the directions of IO Inspector N. K. Tyagi where Inspector N. K. Tyagi, Ct. Kham Chand and one Sanju and Ashwani met him. Thereafter, he deposed on the same lines on which Inspector N. K. Tyagi (PW29) has deposed.
During cross-examination by Ld. Defence counsel, he affirmed that in no photographs any danda or iron rod is visible. He had seen SOC visitation report Ex. PW4/A. There is no mention of danda and iron rod in the said report. By the time HC Satish was sent to the police station, all seizure memos had been prepared on the spot. He affirmed that country made pistol and gun are separate firearms weapons. There were blood stain marks on the shirt as well as pant which were on the dead body. He affirmed that danda and iron rod injuries were not reflected in column no. 10 of the inquest report.
(iii) PW-14 Ct. Sanjay Kumar was the photographer of Mobile Crime Team. He has proved the photographs of the spot clicked by him as Ex. PW14/1 to PW14/9 and negatives thereof as Ex. PW14/10 to PW14/18.
During cross-examination by Ld. Defence counsel, he deposed that he had taken photographs of nearly about entire plot. He affirmed that none of the 9 photographs reflects the FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 40 of 82 presence of any wooden danda or iron rod in the said plot. No photograph shows of mark of dragging of the body on the road outside the opening of the gate of the plot.
(iv) PW-18 Ct. Manoj was the police official, who had collected three parcels from mortuary of GTB hospital and photographs from Crime Team on 24-08-2009. He claimed that he handed over the above-stated sealed parcels, sample seal and photographs to the IO which was seized vide seizure memo Ex. PW18/A and Ex. PW18/B. On 14-09-2009, he took three parcels to the forensic department of GTB hospital vide RC no. 76/09 along with one application for subsequent opinion. On 29-09- 2009, he collected subsequent opinion from the forensic department of GTB hospital.
The witness was cross-examined by the Ld. Defense counsel but nothing material came out therein.
(v) PW-19 Ex. Ct. Hemraj Singh was the police official who was performing emergency duty along with ASI Vijay Singh on the intervening night of 20/21-08-2009. He deposed on the same lines on which ASI Vijay (PW13) has deposed.
The witness was cross-examined by the Ld. Defense counsel but nothing material came out therein.
(vi) PW-23 ASI Satish was the police official who was performing patrolling duty in the intervening night of 20/21-08- 2009 in beat no. 1 and 2 of PS Karawal Nagar. He claimed that on receipt of information regarding firing shot, he reached the spot i.e. Ambedkar Vihar, Gali no. 11, Phase 10, Shiv Vihar, Delhi where he met PCR officials ASI Vijay, Ct. Hem Raj, Inspector N. K. Tyagi, Ct. Ramesh, Ct. Khem Chand. Thereafter, he deposed on the same lines as deposed by PW29 FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 41 of 82 ACP Narender Tyagi.
The witness was not cross-examined by accused persons despite having given the opportunity.
(vii) PW-29 Retired ACP, Narender Tyagi was the investigating officer of the present case. He deposed that on the intervening night of 20/21-08-2009, he was present as ATO in PS Karawal Nagar. At around 11:25 pm, he was performing patrolling duty / night checking duty vide DD NO. 40A dt. 20/21.08.2009 on Govt. vehicle DL-1CJ-5295 along with Ct. Khem Chand. At around 12:30 night, he received telephonic call from DO regarding one call in which caller informed that one person has been shot and he was also under threat. Similar information was received from control room through Wireless Set. On receiving the information, they reached at the spot i.e. Gali no. 11, Phase- 10, Shiv Vihar, Karawal Nagar, Delhi. When, they reached at the spot, he found PCR Van, ASI Vijay Singh along with Ct. Hemraj and night patrolling staff HC Satish, Ct. Ramesh at the spot. No such incident was found at the spot. He called to the caller on the mobile number through which call was made i.e. 9313901155, one Sanjeev answered the call, who told him that Mama Sasur, namely Pramod s/o Sh. Dharampal, R/o Village Sohram Ghola, PS Sahpur, District Muzaffarnagar, Aged about 30 years was killed by Jai Kumar @ Lala, Ajay and Narender. He requested him to identify the place of occurrence and he submitted that he was under threat and nervous therefore, he could not come at the spot at that time as he had apprehension that accused persons might kill him.
PW28 further deposed that at about 02:00 am (night) when he present at Shiv Vihar Tiraha where Sanjeev and Ashwani met FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 42 of 82 him and he inquired them about the incident, Sanjeev led them towards 25 futa road, Gali No. 9 where Sanjeev pointed out at the corner of Gali No. 9 and submitted that accused Jai Kumar @ Lala shot from country made pistol to Pramod and Ajay beaten Pramod from one iron rod (Sariya) and Narender beaten Pramod from wooden stick (Lathi). The dead body of Pramod was not found there. He searched the area and found one vacant plot which was surrounded from three sides by one wall in which the dead body of Pramod was found. The face and head of the dead body was smashed (kuchla hua) and blood was also found on the ground. The building material i.e. fatte, balliya, new and old bricks and sand were also found in the said plot. Some of fatte and ballies (wooden planks) were in lying condition (lying horizontally) and some were standing with the wall (lying vertically). The head of body was towards North and foots were towards South. Three bricks were lying near the head of the dead body having blood stains like. The deceased was wearing white pant and white shirt.
Thereafter, he requested control room to send crime team as well as SHO and Inspector Investigation to the spot. He recorded statement of Sanjeev s/o Sh. R.K. Sharma vide Ex.PW1/A. Thereafter, at around 03:25 am, the Crime Team reached at the spot including I/C Crime Team SI Bala Sankaran, photographer Sanjay Kumar and fingerprint expert ASI Chetram. The spot was inspected by them. SI Bala Sankaran produced scene of crime report (SOC) to me vide Ex.PW4/A. He also recorded statement of SI Bala Sankaran and photographer Sanjay Kumar. No chance print was found at the spot.
He lifted exhibits No. (1) three Bricks on which SBF, FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 43 of 82 MKF, PRB were engraved, the same were kept in white plastic katta and the same was sealed with the seal of N.K and same was seized vide seizure memo Ex.PW1/B. He also lifted blood stains from earth, same was kept in one plastic box and sealed with the seal of N.K. and seized vide seizure memo Ex.PW1/D. He also lifted control earth from the spot and same was kept in plastic box and sealed with the seal of N.K. and seized vide seizure memo Ex.PW1/C. The dead body was sent to GTB mortuary through Ct. Hemraj. He prepared rukka Ex.PW29/A and same was handed over to HC Satish for registration of FIR at around 04:35 am. He searched eyewitness but same were not found as it was night hours and house located near the spot were closed. He prepared the site plan at the instance of Sanjeev vide Ex. PW13/B. Mark A on the site plan was the place where dead body of the deceased was found. Mark B on the site plan was the place where accused Jai Kumar @ Lala shoot the deceased with country made pistol and beaten by accused Ajay with iron rod (Sariya) and beaten by accused Narender by wooden stick (Lathi). Mark C was the place where electric pole was situated. Mark D was the house where accused persons took the deceased as well as the witness Sanjeev and Ashwani to compromise the matter. Mark E was the place where Sanjeev saw the accused persons while they were attacking the deceased.
He further claimed that thereafter, he conducted local inquiry and he met with Vinod Kaushik who informed him that he was not aware the incident as he was sleeping during the incident. Thereafter, he met with Madhu Sharma, she also told him that she was not aware about the incident. He also inquired from other neighbour but they were not the eyewitness of the FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 44 of 82 case and they stated that they did not hear anything. HC Satish came at the spot along with the copy of FIR and rukka and the same was handed over to him for further course of action. He mentioned the FIR details on the documents which were prepared by him. It came to know that the accused persons were residing in nearby area so with the help of ASI Vijay Singh, HC Satish, Ct. Ramesh have prepared a raiding party. They went to the house of accused persons but same were absconding from their residence. At around 06:20 am, he along with raiding party were present in-front of Crematorium Ground, Shiv Vihar. Secret informer came and he informed him that accused persons involved in the present matter, were about to come from Chaman Vihar, Ganda Nala through Ganga Vihar, Ganda Nala Pulia and would go to Loni, U.P. via Gokulpur Village, if raid is conducted they can be apprehended. On the receiving of the information, he requested 2-3 public persons to join the investigation but they refused stating their difficulties. Without wasting further time they proceed towards Ganga Vihar, Ganda Nala Pulia. They took their position on the instance of secret informer at around 06:30 am and requested 3-4 public persons but they did not joined the investigation stating their difficulties. They saw one motorcycle was coming from Chama Vihar, Ganda Nala. The secret informer pointed out towards them and they were stopped. On inquiry from those persons, it was found that name of motorcycle rider was Jai Kumar @ Lala and the pillion rider Ajay and third person was Narender. He conducted formal searched of the accused persons. One country made pistol was recovered from left side dub of pants of accused Jai Kumar @Lala. He checked the said country made pistol and found one FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 45 of 82 used cartridge in the said country made pistol. On the bottom of used cartridge 8 MM KF was written and there was mark of striker pin. He separated the used cartridge from the pistol. He prepared sketch of said country made pistol. On measurement, it was revealed the length of country made pistol was 29.5 cm, the barrel was of 16.3 cm, the body and butt was of 17.5 cm. The details were also mentioned on the sketch memo Ex.PW13/B. The sketch of empty cartridge was also mentioned on the sketch memo. He converted the country made pistol and used cartridge into pullanda and sealed with the seal of N.K. and seized vide seizure memo Ex.PW13/C. HC Satish Kumar also signed at point C. The seal was handed over to Gt. Satish. Accused persons admitted their guilt. After interrogation, they were arrested vide arrest memo Ex.PW13/E, Ex.PW13/F and Ex.PW13/G. Personal search of the accused persons were also prepared vide Ex.PW13/FI, Ex.PW13/GI, Ex.PW13/EI. He recorded the disclosure statement of accused Jai Kumar Ex.PW13/K. Thereafter, he recorded disclosure statement of accused Ajay Ex.PW13/H. Thereafter, he recorded disclosure statement of accused Narender vide Ex.PW13/J. Accused persons disclosed that they can show the place of incident and can get recover weapon of offence. He also seized motorcycle DL-1SQ-6026 Splendor Colour Black and Blue through seizure memo Ex.PW12/A. At around 08:25 am, accused persons led them towards to the spot where accused Jai Kumar @ Lala pointed the place where they fired upon the deceased and pointed out the place where the vacant plot he attacked with the bricks. he prepared pointing out memo at the instance of accused Jai Kumar @ Lala vide Ex. PW39/L. Accused Narender showed the place of FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 46 of 82 incident where he beaten the victim from danda and also shown the place where he smashed the face and head of the deceased with the brick. Accused Narender produced one danda (lathi) which was kept under building material and stated that the danda was used by him while beating the deceased. The said danda was having blood like stains. He measured the said danda and it was found that from one side of the danda it was broken. On measurement of danda it was revealed that the length of danda was 3 feet, 8 and half inch and the same was sealed with the seal of N.K. after obtaining the seal from HC Satish and he seized vide pointing out come seizure memo Ex.PW13/N. PW28 further testified that accused Ajay shown the place where he had beaten the deceased from iron rod and the place where he smashed the face and head of the deceased with the brick. Accused Ajay produced one iron rod which was hidden under the building material and stated that the iron rod was used in beating of deceased. It was found that the iron rod was bend from one side and there was blood like stains on the said rod. On measurement it was revealed the length of 4 feet 7.2 inch and there were lines on the iron rod. The pullanda was created and sealed with the seal of N.K. and seized vide seizure memo Ex.PW13/M bearing my signature at point Y. The seal was handed over to HC Satish. Thereafter, at about 09:30 am we took all the accused persons and case property to the PS. He also seized the blood stained shirt of accused Jai Kumar @ Lala vide seizure memo already Ex.PW13/P. He deposited the case property in the malkhana. He recorded the statement of HC Satish and Ct. Ramesh. ASI Vijay Singh was sent to GTB Mortuary to get conducted the PM of deceased and accused FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 47 of 82 persons were sent to JC.He recorded the statement of ASI Vijay Singh at about 06:30 pm. He also recorded statement of Ct. Hemraj.
PW29 further testified that on 24.08.2009, Ct. Manoj brought one pullanda in sealed condition sealed with the seal of M.K. containing white shirt, white pants, white baniyan and mustard colour underwear. One envelop containing blood on gauge and one sample seal of M.K. The same were seized vide seizure memo Ex.PW18/A and the same were deposited in the malkhana.
PW29 further claimed that on 21.08.2009, he seized the motorcycle bearing No. DL- 1SQ-6026 vide seizure memo already Ex.PW13/D. On 24.08.2009, Ct. Manoj also produced nine photographs of the spot from the office of Crime Team. Same were seized vide seizure memo PW18/B. PW29 correctly identified the those photographs which were clicked at the spot by the Crime Team which were already Ex.PW14/1 to Ex.PW14/9.
PW 29 further deposed that on 25.08.2009, he called Parhlad, S/o Keshav Ram, who was the owner of motorcycle bearing No. DL-1SQ-6026 which was recovered from the possession of accused persons. As per PW Sanjeev, accused Jai Kumar@ Lala made him and deceased Pramod sit on the said motorcycle and brought them to Shiv Vihar. Parhlad produced the RC of the said motorcycle. He seized the said RC vide seizure memo already Ex.PW12/A, Parhlad Singh also signed at point A1. He recorded statement of Parhlad Singh u/s 161 Cr.P.C which is Ex.PW29/B. PW Parhlad stated that accused Jai Kumar @ Lala came on 20.08.2009 in the morning and took his above-
FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 48 of 82 mentioned motorcycle stating that he has to give evidence in the court and therefore, he borrowed the same motorcycle from him. The said fact was informed to him by the father of accused Jaikumar @ Lala through mobile phone and thereafter, accused Jaikumar @ Lala took the motorcycle.
He further testified that on 12.09.2009, PM report of deceased Pramod was received by him from hospital. On examination, it was found that twenty injuries were mentioned in the PM report and injury No.6 and 7 both independently and collectively can cause death. Time since death 12 hours. Cause of death - Shock as a result of ante-moretem injury to head produced by blunt force impact. Injury No.6 and 7 can cause death independently and collectively sufficiently in ordinary course of nature. The said PM report was already Ex.PW3/A. On 14.09.2009, he sent a request letter through Ct. Manoj with three pullandas which were already seized with regard to Bricks, Danda and Sariya and same were sent to forensic department for subsequent opinion, which was already Ex.PW18/B. Road Certificate in this regard was already Mark PW18/Α.On 16.09.2009, SI Mukesh Jain, Draftman, North-East prepared sketch map of the scaled site plan already Ex.PW7/A.On 17.09.2009, witness Sanjeev Kumar, Ashwani and Sachin Panwar called at PS where their statements were recorded. Witness Sanjeev Kumar and Ashwani identified the motorcycle which was seized on 21.08.2009 from the possession of accused persons and statement of Sachin Panwar was recorded. Statement of Sachin Panwar is Ex.PW29/C. Statement of Sanjeev is Ex.PW29/D. Statement of Ashwani is Ex.PW29/E. PW29 further claimed that Sachin produced the documents FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 49 of 82 i.e. marriage documents, photographs, documents of divorce etc. which were took into police possession through seizure memo already Ex.PW8/A. The divorce petition was already Mark B. Affidavit executed between Sachin Panwar and Shivani Sharma was already Mark C. Application u/s 14(1) of Hindu Marriage Act was already Mark D. Affidavit was Mark E. Marriage Certificate and photographs was already Mark F. Order dated 30.09.2008 in case FIR No.424/08 Nand Nagari was already Mark G. Marriage deed was already Mark H. Photographs of marriage was Mark A. Witness correctly identified the same as seized vide above-said seizure memos.
He further claimed that on 21.09.2009, he called Balwant Singh S/o Jaisingh who produced the documents of the house where deceased and witnesses were made to sit by accused persons i.e. Plot No.46, Gali No.09, Phase X, Shiv Vihar. He seized the said documents vide seizure memo already Ex.PW9/A. He also recorded the statement of Balwant Singh which is Ex.PW29/F wherein Balwant Singh mentioned before him that he handed over the key of the said house in the month of June, 2009 to Ajay Kumar and same was remained in the possession of accused Jaikumar till the date of incident. The above-said GPA is already Mark A. PW29 further deposed that on 22.09.2009, Vipin Sharma S/o Pyara Lal was called in PS and he produced the document of the plot in which accused persons smashed the deceased with bricks and dead body of deceased was found i.e. Khasra No.35/11, 25 foota road, Shiva Vihar. The documents were seized vide seizure memo already Ex.PW11/A. He recorded statement u/s 161 Cr.P.C. of PW Vipin which was already FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 50 of 82 Ex.PW11/DA. On 29.09.2009, he got obtained the subsequent opinion on PM report from GTB Hospital. The same was already Ex.PW3/B. On 30.09.2009, he sent all case property to FSL through Ct. Narender. Though, the same was returned due to some objections from the FSL Vide road certificate, which was already Ex.PW23/P1 and Ex.PW23/E. On 01.10.2009, all case property except katta and empty cartridge were sent to FSL through Ct. Narender and same were got deposited FSL. Rohini vide road certificate, which was already Ex.PW23/Q. He further claimed that on 21.10.2009, he obtained scaled site plan from the office of draftsman, SI Mukesh Jain. He also obtained one report from BSES office wherein it has been mentioned that there was no blackout or breakdown of electricity in the said area. Same were already Ex.PW7/A to Ex.PW7/D. His application in that regard was Ex.PW29/G. During the course of investigation, it was found that the SIM which was used by accused Ajay Kumar was found in the name of his relative Surender Kumar. He called surender kumar on 08.10.2009. He produced the property document which were seized seizure memo Ex.PW16/A. The SIM bearing No. 9871100547 was registered on the address which was mentioned on the property documents which were furnished by Surender Kumar. It came to be known that Surender Kumar was the uncle (mama) of accused Ajay Kumar.
He further claimed that on 01.11.2009, he obtained call detail record of accused Ajay's mobile no. 9871100547, accused Narender's mobile no. 9213545304, accused Jaikumar @ Lala's mobile по. 9910478956, Sanjeev Kumar's mobile no. 9313901155 and Sachin Panwar's mobile no. 9711453695. On FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 51 of 82 examination of above-said record, it was found that location of deceased, witnesses and accused persons was nearby area and on same tower area. The said documents were Ex.PW29/H (colly). He also directed the concerned Nodal Officers to preserve the call details and keep them in safe custody for evidence. He issued letters to Nodal Officers for obtaining the relevant record. The applications are now Ex.PW29/H1 (colly).On 30.09.2009, he sent one letter through proper channel to DCP North-East to obtain five cartridges in order to send them to FSL for fulfillment of requirement of FSL for the testing of recovered katta. The said application is Ex.PW29/L. Special permit was issued by DCP licensing for the purchase of said cartridges. The same is now Ex.PW29/J. Original invoice regarding the purchase of the said cartridges are now Ex.PW29/K. During investigation, it was also found that the SIM No. 9213545304, which was issued on the name of one Shakila, but when he examined Shakila, she submitted that she never purchased the SIM. Accordingly, intimation was given to DCP North-West to take appropriate action in this regard. The said letter is now Ex.PW29/L.On 09.11.2009, pullanda, kaata and five live cartridges were deposited in FSL Rohini for examination vide road certificate already Ex.PW23/L through Ct. Narender. On 16.11.2009, Challan was prepared. On 02.02.2010, FSL result was obtained. On 03.02.2010, sanction u/s 39 Arms Act was obtained from Additional DCP, North-East Sh. Rajesh Kumar. Same was already Ex.PW27/A.On 04.02.2010, supplementary charge-sheet was prepared.
PW29 Correctly identified the accused Ajay and Narender. He also correctly identified photographs of motorcycle bearing FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 52 of 82 NO. DL- 1SQ-6026 Splender Plus Black and Blue which were Ex.PX1 (colly); two pullandas sealed with seal of court containing One Sariya which was bent from one side and one danda (lathi) (which was broken from one side) as Ex.PX2 and Ex.PX3; one pullanda having court seal containing three bricks having case particulates engraved with PRB, 2nd one is engraved with MKF and third is engraved with SBF having stains as Ex.PX4 (colly);one pullanda bearing court seal containing one countrymade pistol bearing case particulars and one loose cartridge bearing case particulars as Ex.PX5 and Ex.PX6 respectively; one pullanda bearing court seal containing clothes which were worn by deceased are taken out as Ex.PX7; one pullanda bearing court seal containing blood stained shirt which was worn by accused Jaikumar @ Lala at the time when he committed the murder as Ex.PX8;one pullanda bearing FSL seal containing earth control in one plastic container/ bottle as Ex.PX9; one pullanda bearing FSL seal containing blood stained earth swab in one plastic container/ bottle as Ex.PX10; one pullanda bearing FSL seal containing one blood in gauze as Ex.PX11.
STATEMENT OF ACCUSED
5. After completion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. wherein incriminating facts emerging from testimony of the prosecution witnesses were put to the accused, which were denied by him. he stated that he has been falsely implicated in this case. He has not committed any offence as alleged against him. He was not even present at the spot at the time of alleged incident. He opted to lead defence evidence and examined four witnesses.
FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 53 of 82 DEFENCE EVIDENCE
6. (i) DW1 Ms. Swati Bhardwaj deposed that in the year 2009, she along with her husband Narender Kumar, children and other family members used to reside at A-78, Phase X, Gali No. 10, Shiv Vihar, Karawal Nagar, Delhi-94. Her husband used to do a private job at a Cloth Printing Factory at Roop Nagar, Loni.
On 18.08.2009, her sister-in-law (bhabhi) gave birth to a female child at Geeta Gupta Nursing Home near Radhu Cinema at Shahdra, Delhi-32 and she along with her husband remained in the hospital for the whole day. In the night, her husband used to return home while she used to stay at the Nursing Home with her bhabhi namely Neetu Sharma w/o Ravinder Kumar Sharma.
On 20-08-2009, her bhabhi was discharged from the hospital and nobody in their family was there to take her to home due to which she called her husband, who was present at the factory. Moreover, there was neither any vehicle nor any person who knows driving and therefore, she called her husband. On that day, her husband reached the said nursing home at about 7- 7:30 pm. They got discharged her bhabhi from the said nursing home with the new born female child and took her to her parental home at Maujpur. Some rituals had taken place at their home at Maujpur and thereafter, she along with her husband returned back to her aforesaid house at Shiv Vihar at about 10-10:30 pm. Her devar namely Govender Sharma and devrani namely Urvashi Sharma were present at their Shiv Vihar house and her devrani had prepared the meals for them. They all took dinner together on the ground floor where her devar and devrani reside and after taking the dinner, she along with her husband and children went to sleep at 1st floor.
FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 54 of 82 On the next morning, at about 5-5:30 am, while they were sleeping, suddenly many police officials came at their home and knocked the door of their house. Her devar opened the door. Police officials enquired from her devar regarding her husband. Her devar informed that her husband was there in the house. He came upstairs and knocked the door of their room and informed that police was asking about her husband. Her husband went downstairs and police took him to the PS stating that they have to make some enquiry with respect to some case. Many public persons had also gathered in the street at that time. Thereafter, she came to know that her husband was falsely booked by the police in the present case while the true fact was that her husband had not committed any offence as he was present throughout with her since the evening of 20.08.2009.
During cross-examination by Ld. Addl. PP for State, DW1 deposed that she was not having any documentary proof to show that she and her husband got discharged Ms. Neetu Sharma. She did not know whether any entries were made regarding entry and exit of employees in the factory of her husband. She was not having any documentary proof to show that her husband went for his work in the said factory. She was not having any proof of making call to her husband on 20.08.2009. She was not having any proof to show that the rituals were performed at her parental house at Maujpur. She did not know as to what was the payment made during the discharge of Neetu Sharma. She did not remember as to how much time it took for getting discharge Neetu Sharma. She did not remember as to when they departed from the hospital towards her parental home. They reached at her parental house at about 8:45 - 9 pm. FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 55 of 82
(ii) DW2 Sh. Govender Sharma deposed that in the year 2009, he along with his elder brother Narender Kumar and their respective family members used to reside at A-78, Phase X, Gali No. 10, Shiv Vihar, Karawal Nagar, Delhi-94. He and his elder brother Narender Kumar used to do a private job at a Cloth Printing Factory at Roop Nagar, Loni.
On 20.08.2009 at about 7 pm, his elder brother Narender Kumar took leave from the factory and told him that he was going to a nursing home at Shahdara where his sister-in-law (wife of his sala) was admitted and gave birth to a girl child. He also informed him that his sister-in-law was being discharged from the Nursing Home and he had to take her to the house. Thereafter, he went away from there. Thereafter, at about 9 pm, after his work, he returned back to his home. At that time, his brother and bhabhi were not there in the house. They came back home at about 10:30 pm. Thereafter, they all had dinner together and had some talks. Thereafter, at about 11-11:30 pm, his brother and bhabhi went to sleep their room at 1st floor and he and his wife also went to sleep.
On the next morning, at about 5-5:30 am, while they were sleeping, suddenly many police officials came at their home and knocked the door house. He opened the door as it was locked from inside. Police officials enquired from him regarding his brother Narender Kumar. He informed that his brother was there in the house. He went upstairs and knocked the door of the room of his brother and informed that police was asking about him. His brother came downstairs and as soon as he reached downstairs, police took him to the PS stating that they had to make some enquiry from him with respect to some case. Many public FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 56 of 82 persons had also gathered in the street at that time. Thereafter, he came to know that his brother was falsely booked by the police in the present case while the true fact was that my brother has not committed any offence as he was present at our home throughout the night. He visited the PS many times to state that his brother has nothing to do with this case but he was not heard by the police officials.
During cross-examination by Ld. Addl. PP for State, DW2 deposed that in their factory, a register was maintained regarding our entry and departure. His brother while departing from the factory had made an exit entry through the Security Guard. His brother took the car of their factory owner alongwith him after departing. The said car was of make Santro of dark grey colour. He did not remember the registration no. of the said car. His brother himself drove the said car. He did not remember as to what clothes his brother was wearing on 20.08.2009. He did not make any compliant to any senior police official regarding police officials taking his brother with them without any reason.
(iii) DW3 Sushil Kumar deposed that he runs a shop of refrigerator and AC repairing at the ground floor of his house. In the year 2009, he along with his family used to reside at the same address. The house of accused Narender Sharma was two houses away from his house in the same lane and side. He did not remember the exact date, however, in the month of August 2009, at about 5-5:30 am, he was present in his gali, near his house. At that time, he saw some police officials came at the house of accused Narender Sharma and knocked the door of his house. After some time, the door was opened and police went inside the house and after about 5-10 minutes they took Narender Sharma FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 57 of 82 with them. On seeing this, many persons gathered in the gali. Later on, he came to know that some murder had taken place on main road and police took Narender Sharma for some inquiry in connection with the said case. Since then, police never brought back Narender Sharma to the said area in his presence.
During cross-examination by Ld. Addl. PP for State, DW3 deposed that he did not know as to what was professional occupation of accused Narender Sharma. He did not make any complaint to any police station regarding missing of accused Narender Sharma nor even he made inquiries as to whether those alleged police officials were real or not nor he made search for accused Narender Sharma.
(iv) DW4 Karan deposed that he has been residing at the Shiv Vihar address for the last about 40 years. He runs a sweet shop (Halwai) in gali no. 12, Phase-10, Shiv Vihar, Delhi. The house of accused Narender Sharma was three houses away from his house in the same lane but on opposite side. He did not remember the exact date, however, in the month of August 2009, at about 5/5:15 am, he was present in his gali near his house as he was going to open his shop. At that time, he saw 4-5 police officials who came at the house of accused Narender Sharma. At that time, the door of Narender's house was closed. They knocked the door and after 2-3 minutes when the door was opened, they went inside the house. After some time, those police officials forcibly took Narender Sharma with them. At that time, many other persons also gathered in the gali and when they asked those police officials as to why they were taking Narender Sharma with them, they told that he was being taken for some inquiry in relation to some case. Thereafter, police never brought FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 58 of 82 back Narender Sharma to the said area in his presence.
During cross-examination by Ld. Addl. PP for State, DW4 deposed that he did not remember as to what was the rank or how many stars were there on their uniforms. He did not make any complaint to any police station regarding missing of accused Narender Sharma nor even he made inquiries as to whether those alleged police officials were real or not nor I made search for accused Narender Sharma.
FINAL ARGUMENTS
7. This court has heard the arguments from both sides and perused the record.
It is submitted by Sh. Shikhar Mahajan, Ld. Addl. PP for the State that the testimony of prosecution witnesses is sufficient to prove the case of the prosecution. Sanjeev Kumar (PW1) and Ashwani Arya (PW2) are the eyewitnesses of the present case. They both have explained in detail the manner in which the deceased had been murdered by the accused persons. No major contradiction or discrepancy is there in their testimonies. PW17 Sh. Pradeep Kumar Sharma, DGM, BSES has proved that there was sufficient illumination at the spot and therefore, identification of accused persons by the eyewitness namely Sanjeev Kumar (PW1) and Ashwani Arya (PW2) cannot be doubted.
PW8 Sachin Panwar is a dying declaration witness who proved one phone call made by the deceased to him wherein the deceased had stated that he was going to meet the accused Ajay to discuss about the matrimonial issues between him and Shivani. As far as forensic evidence is concerned, prosecution has proved the Serology report Ex. PW28/A wherein human blood was FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 59 of 82 detected on the weapon of offence i.e. Danda which was recovered from the spot at the instance of accused. Further, as per subsequent opinion Ex. PW3/B, it is proved that the said danda was used in causing injuries upon the deceased.
It is submitted by Sh. Mohd. Irfan, Ld. Counsel for accused persons that the accused persons have been falsely implicated in the present case owing to matrimonial dispute of victims with accused Ajay Sharma. There are material contradictions and discrepancies in the testimony of eyewitnesses i.e. Sanjeev Kumar (PW1) and Ashwani Arya (PW2). Both Sanjeev Kumar (PW1) and Ashwani Arya (PW2) have stated in their cross examination that they were present inside the room when the incident of alleged firing took place. Attention of this court was drawn towards cross-examination dated 16-12-2010 of PW1 Sanjeev Kumar wherein he has stated that, "Ashwani had heard some noises outside the house when we were in the room before the noise of fire". Similarly, PW2 Ashwani in his cross- examination dated 14-03-2012 stated that, "I and Sanjeev were sitting in the room. When we heard the noise of firing, then myself and Sanjeev came out of the room".
It is further submitted that Sanjeev Kumar (PW1) did not testify that the accused Narender was carrying any weapon of offence whereas Ashwani Arya (PW2) states so. As per the testimony of Ashwani Arya (PW2) main role in connection of alleged murder was attributed to accused Lala. The accused Narender had not played any active role in commission of alleged offence. Even as per the postmortem report, there is no mention of any bullet injury. Neither any bullet was recovered from the spot or from the body of the deceased nor any fired FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 60 of 82 cartridge was recovered by the Crime Team. The attention of the Court was drawn towards the cross-examination dated 23.10.2010 of PW3/Dr. Meghali Kelkar wherein she had deposed that Ex.5 (danda) was in a straight dimension which was contrary to the dimension or diagram mentioned in opinion report Ex.PW3/B as in the diagram, Danda had curved on its bottom like hockey shape/ golf shape. She had also admitted that Ex.P5 was having no curve/ splintered end. It is, therefore, prayed that the entire postmortem report and subsequent opinion given by the autopsy surgeon cannot be relied upon. Further, no blood stains on the road where the dead body was allegedly dragged was detected by the crime team while inspecting the scene of crime. No photograph of the place where the alleged offence i.e. Danda is recovered from a vacant plot at the instance of the accused has been placed on record. The crime team which had investigated the spot prior to the recovery of alleged danda did not find the same at the spot and therefore, it is apparent that the danda has been planted upon the accused persons.
No independent public witness was joined by the IO at the time of effecting recovery of incriminating articles which has been done at 8.00 AM in the morning and therefore, presence of passerby could not be ruled out.
It is urged that accused persons are entitled for benefit of doubt in the prosecution case and therefore, it is prayed that accused persons be acquitted.
FINDINGS OF THIS COURT
8. Before analyzing the evidence led by the Prosecution in the present case, this court deems it proper to refer to some provisions of law and citations of Superior courts, which are FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 61 of 82 found to be applicable to the facts of the present case.
300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-- Fourthly--If the person committing the act knows that it is so imminently dangerous that is must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
302. Punishment for murder-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 1[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
506. Punishment for criminal intimidation.--Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
If threat be to cause death or grievous hurt, etc.--and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
25. [(1AAA)] of Arms Act--Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than [three years, but which may extend to seven years] shall also be liable to fine.
27. Punishment for using arms, etc. of Arms Act--(1) Whoever FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 62 of 82 uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
9. The present case of the prosecution is based upon the testimony of eyewitnesses. Since the proceedings qua accused Jai Kumar @ Lala and accused Ajay has already been abated, there is no point in analyzing the evidence led by the prosecution qua the said accused persons. The prosecution has got examined two eye-witnesses namely PW1 Sanjeev Kumar (husband of niece of deceased) and PW2 Ashwani Arya (cousin of PW1). Indisputably, as per the prosecution case, on 20-08-2009, PW1 Sanjeev Kumar, PW2 Ashwani Arya and deceased Pramod went to meet accused Ajay, who is the brother of Shivani, wife of Sachin (PW8) to resolve the ongoing matrimonial dispute between Sachin and Shivani. About 10 to 12 months prior to the date of incident, PW8 Sachin was having love affair with Shivani which culminated in marriage between the two at Arya Samaj Mandir on 11/12-09-2008 against the wishes of family members of bride (i.e. Shivani). Thereafter, matrimonial dispute arose between the couple and on 08-07-2009, Shivani left the house of Sachin and came back at her parental house at Dilshad Garden. Thereafter, PW8 Sachin filed an application for divorce at Tis Hazari Court.
10. Both PW1 and PW2 had correctly identified the accused persons at the time of recording of their respective depositions. They both had explained in detail complete facts which led to the murder of Pramod. They both had deposed with clarity about the weapons used by the accused persons in committing the murder of deceased Pramod. PW-1 Sanjeev Kumar had categorically FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 63 of 82 deposed in his examination in chief dated 26-07-2010 that he along with his brother Ashwani and his mama sasur Pramod went to Gagan Cinema Hall situated in Nand Nagri on 20.08.2009 at about 10.45 p.m. At Gagan Cinema, Narender and one boy, who was introduced to him as one Lala, met them. At Gagan Cinema, Narender told him to accompany him and Lala to the house of Narender in Shiv Vihar to have compromise talks. Thereafter, he, his brother and mama sasur Pramod took an auto and reached check post Jawahar Nagar and Narender and Lala reached there on motorcycle. They got down at Check Post Jawahar Nagar and thereafter, Narender took him and Pramod on the motorcycle to Shiv Vihar, Gali No. 9. and his brother Ashwani along with Lala proceeded for the same place on foot, where Ajay was standing. There was one house which was locked from outside. Ajay opened the lock and they all went inside the house. After about 10-15 minutes, his brother Ashwani along with Lala also reached there. Thereafter, some compromise talks were initiated and Ajay shook hands with Pramod. Thereafter, Ajay asked Pramod that he wanted to talk to him separately and Pramod and Ajay left that place. After some time, Lala also left that place. After 3-4 minutes, Narender also left the said place to see as to what had happened. By that time it was 12.00/12.15 am (night) and he got worried as they had not come back by that time. So, he also went out to see them. At a distance of about 30-40 steps away from the house, at 25 futa road, he found all the above said persons standing there and Pramod was being beaten up by Lala, Ajay and Narender. His brother Ashwani was also with him. He and Ashwani intervened in the matter and tried to rescue Pramod. They ran towards them and in the meantime, Lala took out katta FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 64 of 82 and Ajay said, "mar sale ko, der kyo kar raha hai " and immediately. Thereafter, Lala fired at Pramod. Pramod fell down. Lala turned his face towards him and said, " bhag jayo salo nehi to tumhara bhi yahi haal hoga". He along with his brother Ashwani ran towards nala. He was having mobile phone with him having number 9313901155 and rang up police at number
100. PW1 has also correctly identified three blood-stained bricks which were seized by the IO in his presence as Ex. P-1.
11. Similarly, another eye-witness PW2 Ashwani Arya had also categorically deposed that on 20-08-2009, he along with his cousin brother Sanjeev and Pramod were present in Dilshad Garden. Narender had called Pramod and Sanjeev for some compromise regarding some matrimonial dispute of Sachin and Shivani. Ajay and Narender had some conversation on telephone. Narender had called Sanjeev and Pramod to Gagan Cinema and he also accompanied them to Gagan Cinema. When they reached Gagan Cinema, he also met Narender and Jai Kumar @ Laala at Gagan Cinema. Sanjeev, Pramod, Narender and Jai Kumar had some conversation. Narender told Pramod and Sanjeev to come to his house and they will have conversation regarding compromise there. Narender and Lala told them that they should take an auto and go towards Jawahar Nagar, Check Post. Narender and Laala went on motorcycle and they all three i.e. himself, Sanjeev and Pramod went on auto. They all got down at Jawahar Nagar, Check Post where they met Narender and Laala. From there, Narender, Pramod and Sanjeev had gone on motorcycle and he along with Laala were going on foot towards the place where Narender had called them. He reached Shiv Vihar. They all were sitting and talking about compromise.
FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 65 of 82 Pramod was standing and Ajay had come and told Pramod to accompany him outside to talk about the matter. Pramod was taken out by Ajay and after some time, Narender also went out of the house. He and Sanjeev only remained inside the house. They remained in the house and waited for 2-4 minutes. After some time, he and Sanjeev went out of the house and saw Pramod being beaten up by Ajay, Narender and Laala. He identified all three accused in the court. When they went towards Pramod to intervene in the fight and to save Pramod, Ajay told Laala, " itni der kyu kar rahe ho iska kaam tamam kar do " Ajay was having saria in his hand and Narender was having danda in his hand and Laala fired on Pramod from Katta. The accused also threatened them that they should run away otherwise, they would also be killed. Since they were fearful, they had run away from the spot. They ran towards Naala, Shanti Nagar. Sanjeev called to the police at 100 number.
12. The presence of PW1 and PW2 at the spot is corroborated by investigating officials namely PW13/ ASI Vijay Singh, PW19/ Ex. Ct. Hemraj Singh, PW23/ ASI Satish and PW29/ ACP Narender Tyagi. As per report, Ex.PW17/B of PW17/ Pradeep Kumar Sharma, DGM BSES, Yamuna Power Lmtd., it is true that there was neither any shut down nor any cut down in the area of Shiv Vihar phase - 10 on the intervening night of 20/21.08.2009 from 10.00 PM to 5.30 AM. Thus, it is established that there was sufficient illumination in the area where the incident took place. There is no possibility that PW1 and PW2 are making guesses about the role of witnesses in commission of alleged offence. Further, the PW29/ IO/ ACP Narender Tyagi has also carried out analysis of call details records and cell ID chart FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 66 of 82 vide documents Ex.PW29/H (colly.) of mobile phones of accused persons and eye witnesses and it was found that the location of deceased, witnesses and accused persons was in nearby area and on same tower area at the time of incident. This part of testimony of PW29 remained unimpeached as no suggestions have been put to him in his cross examination to the effect that he has falsely carried out the analysis of CDrs and cell ID chart vide document Ex.PW29/H (colly.).
13. As far as the contention of Ld. Defence counsel to the effect that PW1 Sanjeev Kumar did not depose anything regarding the role of accused Narender is concerned, it is noted that PW1 Sanjeev Kumar has categorically deposed that Pramod was being beaten up by accused Lala, Ajay and Narender. In fourth page of his examination in chief, PW1 had deposed that, "when me and my brother Ashwani came out of the house in Shiv Vihar and I had seen all the three accused persons beating Pramod, they were beating him with iron rod and danda." Thus, the contention that PW1 Sanjeev did not depose anything regarding the role of accused Narender fails to inspire the confidence of this court.
14. It is further contended that there is contradiction in the testimony of both the eyewitnesses and their cross-examination with regard to the incident of firing by accused Jai Kumar @ Lala. It was urged that both PW1 and PW2 had stated in their respective cross-examination that they were present inside the house of Narender when the incident of firing took place. Further, it is submitted that independent witness PW12/ Prahlad Singh had also failed to support the case of the prosecution on the aspect of handing over of his motorcycle by him to accused FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 67 of 82 Jai Kumar. In this regard, it is pertinent to note that both PW1 and PW2 have been cross-examined at length by the Ld. Defence counsel. PW1 Sanjeev Kumar was cross-examined on 07 dates i.e. 26.07.2010, 08.09.2010, 19.10.2010, 26.11.2010, 16.12.2010, 21.01.2011 and 07.04.2011 and PW2 Ashwani Arya was cross- examined on 10 dates i.e. 08.09.2010, 24.10.2011, 17.11.2011, 18.01.2012, 21.02.2012, 14.03.2012, 31.03.2012, 21.04.2012, 13.07.2012 and 07.09.2012. Despite their strenuous cross- examination, they stood firm in their stand that all three accused persons were responsible in causing murder of Pramod. They both have denied the suggestions that they had not witnessed the incident of beatings given to the deceased Pramod. Merely because they have made stray statements that they were inside the house when the incident of firing took place, their entire testimony cannot be discarded.
15. It is settled position in law that testimony of an eyewitness is to be preferred to that of a medical/ forensic witness. Reference may be made to State of U.P. v. Hari Chand (2009) 13 SCC 542, wherein the Hon'ble Apex Court told the position of law thus:
"In any event, unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."
16. At this stage, it is pertinent to refer here the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43, wherein it was observed by the Hon'ble Supreme Court of India that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 68 of 82 such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial." Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :- "It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(133) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (134) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) By and large a witness cannot be expected to possess a FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 69 of 82 photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) 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.
(d) 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.
(e) 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.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious 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 him perhaps it is a sort of psychological defence mechanism activated on the moment.
17. It has been held by the Hon'ble High Court of Delhi in the case of Sonu Arora Vs. State on 21 July, 2010 in Crl. A. No. 241/1997 that:-
"If the discrepancies found in the testimony of a witness are normal and attributable to loss of memory with the passage of time or they are on matters which are peripheral or trivial, not forming the core of the case, his testimony cannot be rejected on account of such minor variations or infirmities. But, where the contradiction relates to the main incident forming core part of his testimony, that could depending upon the nature of the contradiction and other facts and circumstances of the case, seriously affect the credibility and truthfulness of the witness since he is not expected to give contradictory version with FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 70 of 82 respect to the important material parts of the incident which he claims to have witnessed."
18. Further, it is well settled that testimony of hostile witness cannot be discarded in toto. In the case of Khujji @ Surendra Tiwari Vs. State of M.P, AIR 1991 Supreme Court 1853, Hon'ble Apex Court examined the evidentiary value of a hostile witness and held that the evidence of a witness, declared hostile, is not wholly effaced from record and that part of evidence, which is otherwise acceptable can be acted upon. Hon'ble Apex Court relying upon its previous decisions in Bhagwan Singh Vs. State of Haryana, (1976) 2 SCR 921, Rabinder Kumar Dey Vs. State of Orrisa (1976) 4 SCC and Sayed Akbar Vs. State of Karnataka (1980) 1 SCR 95 held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version found to be dependable on a careful scrutiny thereof. In the present case, even though PW12/ Prahlad Singh, whose motorcycle bearing no. DL 1SQ 6026 was allegedly used by the accused persons after the commission of offence, has not supporting the case of the prosecution, yet he has proved the seizure memo Ex.PW12/A vide which the RC of the motorcycle in question was handed over by him to the IO by identifying his signatures thereupon.
19. No material contradiction/ discrepancy has been pointed out by the Ld. Defence counsel in the version of PW1 Sanjeev Kumar and PW2 Ashwani Arya which would have the effect of discarding their testimonies in toto. In view of the law as stated FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 71 of 82 above, the contention regarding contradictions and discrepancies in the version of PW1 and PW2 fails to inspire the confidence of this court. Even though PW12 has disowned the case of prosecution on the aspect of use of his motorcycle by the accused persons yet PW12 did not create any dent in the testimony of eye witnesses i.e. PW1 and PW2.
20. It is further contended on behalf of accused that the weapon used in the commission of offence has not been proved by the Prosecution and therefore, benefit of doubt should be given to the accused persons. The attention of this court was drawn towards cross-examination of PW3 Dr. Meghali Kelkar wherein she had admitted the case property i.e. Ex. P-5 danda was contrary to the diagram prepared by her in her report Ex. PW3/B. In this regard, it is pertinent to note that she had denied the suggestion that the opinion given regarding the danda which she had given, was not the P-4 (danda) which was produced in the court that day. Further, she had correctly identified the danda during her examination in chief, which was exhibited as Ex. P-5. Merely because there is some discrepancy in the diagram prepared by the autopsy surgeon in her report Ex. PW3/B, her entire findings cannot be discarded.
21. It is not out of place to mention here that it is well settled that non-recovery of weapon of offence is not always fatal to the prosecution case, particularly when the mode and manner of inflicting injuries have been duly proved by the testimony of eyewitnesses. The law to this effect has been laid down by the Hon'ble Supreme Court of India in case titled Anwarul Haq Vs. State of UP, (2005) 10 SCC 581 that, the eyewitnesses have described the knife, and merely because the knife has not been FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 72 of 82 recovered during the investigation, same cannot a factor to discard the evidence of PWs. Wounds noticed by the doctor also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. The PM report Ex. PW3/A and subsequent opinion Ex. PW3/B corroborate the version of PW1 Sanjeev Kumar and PW2 Ashwani Arya. In these circumstances, the above-mentioned contention is also liable to be rejected.
22. It is argued vehemently that no independent witness was got examined by the IO and therefore, prosecution case cannot be relied upon. In this regard, it is pertinent to note that in the present case, PW29 Retd. ACP Narender Tyagi, PW23 ASI Satish, PW14 Ct. Sanjay Kumar, and PW13 ASI Vijay Singh have been cross-examined at length. There is nothing in their version to indicate that any other independent witnesses had seen the occurrence i.e. the incident of assault upon the deceased Pramod which resulted in his death.
23. It is pertinent to mention that on the above-mentioned aspect, it has been observed by the Hon'ble Delhi High Court in judgment titled "Jhodha Sahney Vs. State of NCT of Delhi 2011 (1) Crimes 382", as under:-
"7. The next ground taken by the Counsel for the appellant is that no public witness was joined at the time of recovery. The accused had started moving quickly towards the village on the seeing police party and police party therefore stopped the accused/appellant and checked his gunny bag. On checking it was found that gunny bag held by the accused contained charas. Merely because the police party did not associate public persons in this "chance recovery" cannot be a ground to disbelieve the case of prosecution. Moreover, there is normal tendency of public persons not to associate themselves with police investigation as the investigation and the trials in this country are the source of great harassment to the witnesses who are often not taken care of by the Courts or by the police. The witnesses are normally scared to join any investigation or give testimony FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 73 of 82 even of what they have witnessed in broad daylight because of the repeated summoning in the Courts and sending them unexamined in a routine and casual manner by the Courts."
24. Dealing with the aspect of reluctance of the public persons to join the police proceedings, this Court in Jawahar vs. State (2007) ILR 2 Delhi 146 observed as under:-
"As far as non association of public witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are; the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses".
Thus, the contention regarding non-joining of independent public witnesses raised by the Ld. Defence counsel fails to inspire confidence of this court.
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25. The postmortem report Ex. PW3/A and subsequent opinion Ex. PW3/B corroborates the version of eyewitnesses. Apart from examining the eyewitnesses, the prosecution has also proved the oral dying declaration of deceased Pramod when he had informed PW8 Sachin Panwar prior to his departure towards the house of accused Ajay for settlement of matrimonial dispute. PW8 Sachin Panwar had categorically deposed that at Jawahar Nagar, his mama Pramod told him at about 7.00 p.m on 20.08.2009 that he alongwith Sanjeev would go to Shiv Vihar at the house of Ajay for settlement. After saying the above said fact to him, his mama left the house for Dilshad Garden where Sanjeev used to reside. PW8 further deposed that thereafter, at about 10.00 p.m, Pramod made a call to him and told him that he was at Shiv Vihar at the house of Ajay and Ajay, Vijay and Lala were with him there. On the same night at about 1.00 am, he came to know that the above said persons committed murder of his mama Pramod.
26. With regard to evidentiary value of dying declaration u/s 32 (1) of the Indian Evidence Act, it has been held by Hon'ble Supreme Court of India in case of Nanhar Vs. State of Haryana, JT 2010 (6) SC 196 that, "dying declaration should be such, which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. Further, it should not be result of tutoring"
27. Further, in the case of Khushal Rao Vs. State of Bombay, AIR 1958 SC 22 that, "Once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration"
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28. Admittedly, the above-stated dying declaration of the deceased with accused is a material circumstance against the accused and put a burden upon the accused to explain as to what they were doing or where they were present at the relevant time. The failure of any explanation of accused to this circumstance leads to an adverse inference against the accused. In this case, both accused persons have not tendered any explanation as to what they were doing at the relevant time.
29. Further, accused Narender was supposed to put forward some explanation not only during cross examination of the witnesses, who have proved the role of accused in committing the murder of deceased Pramod, but also during his statement u/s 313 Cr.P.C. However, he just replied to all incriminating facts emerging from the evidence as "it is incorrect" or "I do not know". Nowhere he has explained as to what he was doing at the relevant time i.e. on the intervening night of 20/21-08-2009, The accused was supposed to tender a satisfactory explanation to the fact which was within his personal knowledge. No doubt, accused was not supposed to examine any witness to prove this fact, but he was definitely supposed to put forward some explanation u/s 313 Cr.P.C., which is not done by him.
30. The Hon'ble Apex Court has held in case titled Jagroop Singh vs. State of Punjab, (2012) 11 SCC 768 that if accused failed to tender any plausible explanation to incriminating evidence, it would serve the purpose of fulfilling the missing link of the circumstances. The relevant observation is as under:
"36. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation under Section 313 of the Code of Criminal Procedure except choosing the mode of denial."
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31. In State of Maharashtra v. Suresh [(2000) 1 SCC 471 :
2000 SCC (Cri) 263], it has been held that, "when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him under Section 313 of the Code of Criminal Procedure."
32. Testimonies of the defence witnesses got examined by the accused Narender are of no help to him. DW1 Swati Bhardwaj, who is wife of accused, DW2 Govinder Sharma, who is brother of accused, are both interested witnesses. Though they have claimed that the accused Narender went to the Nursing Home for getting his Bhabhi namely Neetu Sharma discharged, who was admitted there for the purpose of delivery of child yet they could not explain in their cross-examination as to why they had not preserved the documents pertaining to treatment and discharge of Neetu Sharma from Nursing home. Nor they could produce any documentary proof to show that the accused Narender had attended his factory on the date of incident. Interestingly, the accused himself has not taken any plea of alibi in his statement u/s 313 of Cr.P.C. DW3 Sushil Kumar and DW4 Karan are neighbors of accused Narender. They both could not give any satisfactory explanation in their respective cross-examination as to why they had not lodged any complaint before any authority regarding false implication of accused Narender.
33. In view of the facts, it stands proved that accused Narender was in the company of the deceased, and he has failed to tender any explanation and shall be presumed that he was involved in FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 77 of 82 the incident in which deceased was killed. Thus, there is no possibility that accused had left the company of deceased Pramod.
34. It is vehemently argued that weapon of offence i.e. danda has been recovered from a place which has already been inspected by the Crime Team. The Crime Team, in its crime report Ex. PW4/A, did not find any weapon of offence in the vacant plot. The attention of the court was also drawn to the cross-examination dated 23-05-2012 of In-charge of Crime Team i.e. PW4 SI U. Balashankaran who could not give any satisfactory explanation as to why he has not mentioned everything which he had noticed at the time of inspection. It is, therefore, submitted that the weapon of offence i.e. danda has been planted subsequently by the IO in order to fabricate evidence. This court totally agree with contention that there are discrepancies in the Crime Team inspection report Ex. PW4/A, which are revealed during the cross-examination of PW4. The photographs Ex.PW14/1 to Ex.PW14/9 clearly shows the blood stains on the recovered bricks as well as on the ground near the place from where the dead body was recovered though these facts were not mentioned in the Crime Team Inspection report Ex.PW4/A. Thus, an inference can be drawn that there are certain lapses in the investigation. Be that as it may, it is well settled that merely because there are certain lapses in the investigation, the entire prosecution case cannot be thrown away. Nevertheless, dehors such lapse, the prosecution has well established its case on the basis of unimpeached testimonies of PW1 and PW2.
35. THE Hon'ble HIGH COURT OF DELHI In Deepak Yadav vs State (Govt Of Nct Of Delhi) in CRL.A. 231/2017 FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 78 of 82 "It is clear that merely because of some defect in the investigation, lapse on the part of the investigating officer, it cannot be a ground for acquittal. Further, even if there had been negligence on the part of the investigating agency or omissions, etc. it is the obligation on the part of the court to scrutinise the prosecution evidence dehors such lapses to find out whether the said evidence is reliable or not and whether such lapses affect the object of finding out the truth. "
36. The Hon'ble Supreme Court in Hema v. State reported as (2013) 10 SCC 192 whilst holding that fair investigation is a part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India and it is the immediate requirement of the rule of law that investigation must be fair, transparent and judicious, observed as follows:
"14. It is also settled law that for certain defects in investigation, the accused cannot be acquitted. This aspect has been considered in various decisions. In C. Muniappan v. State of T.N. [(2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] , the following discussion and conclusions are relevant which are as follows: (SCC p. 589, para 55) "55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
37. Thus, the contention with regard to the lapses in the investigation particularly on the aspect of preparation of scene of crime report, as pointed out by Ld. Defence counsel did inspire the confidence of this court. However, merely because there are certain lapses in the prosecution case, the case of the prosecution FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 79 of 82 stands on strong footing in light of above-mentioned findings.
38. In so far as motive for the commission of the alleged offence is concerned, the prosecution has established the motive from the testimony of PW8 Sachin Panwar. It is manifest from the testimony of PW8 that the family members of Shivani, who was wife of PW8 as well as sister of accused Ajay, were having animosity with the deceased Pramod and his nephew Sachin (PW8) prior to the incident for two reasons:
(1) The deceased Pramod witnessed the marriage between PW8 Sachin and Shivani, which was solemnized at Arya Samaj Mandir against the wishes of family members of Shivani, (2) PW8 Sachin had filed a divorce case against Shivani and thereafter, he started residing with the deceased maternal uncle Pramod at village Soram, Distt. Muzaffarnagar, UP.
39. Apart from the charge from the offence of having committed the murder of Pramod and the accused persons have also been charged for the offence of Criminal conspiracy i.e. under Section 120B of IPC for committing the alleged murder, and also for the offence of criminal intimidation, punishable Under Section 506 of IPC for extending threat of killing to witnesses Sanjeev Kumar and Ashwani. On this aspect, it is noted that PW1/ Sanjeev Kumar had deposed that after beating the deceased Parmod, accused Lal had stated to them (both PW1 and PW2) that, "bhaag jao saloo, nahi toh tumhara bhi yehi haal hoga". Similarly, PW2/ Ashwani Arya had also deposed that the accused Lala also threatened them that they (both PW1 and PW2) should run away otherwise they also would be killed. There is nothing on record to indicate that the accused Narender had also shared common intention with accused Jai Kumar @ FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 80 of 82 Lala (since deceased) in extending threat to PW1 and PW2. Thus, in the opinion of this Court, the prosecution had failed to establish commission of offence punishable under Section 506/120B of IPC against accused Narender. Further, no evidence has been adduced by the prosecution to show that the accused persons had made any planning to commit murder of deceased Pramod prior to the date and time of incident. Thus, the prosecution has also failed to establish commission of offfence punishable under Section 120 of IPC by accused Narender. Investigating police officials namely PW13 ASI Vijay, PW23 ASI Satish and PW29 ACP N. K. Jain have successfully proved the factum of recovery of weapon of offence i.e. danda from the possession of accused Narender Sharma, which was seized vide seizure memo Ex. PW13/N. As per the postmortem report Ex. PW3/A, the deceased Pramod had received about 20 injuries on his body. Further, the cause of death was opined to be shock as a result of antemortem injuries to head produced by blunt force impact. Injury no. 6 and 7 were opined to be independently and collectively sufficient to cause death in ordinary course of nature. As per the subsequent opinion report Ex. PW3/B, it is proved that injury no. 1 to 6, 8, 14 to 20 can be caused by danda which was recovered at the instance of accused Narender. Thus, it is established that accused Narender had beaten the deceased Pramod using 'danda' with the intention of causing his death. DECISION OF THE COURT
40. In the opinion of this court, the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of this court. Nothing material came out in their respective cross-examination. There is no reason to FIR No. 202/2009 State Vs. Jai Kumar @ Lala Etc. Page No. 81 of 82 disbelieve the version of prosecution witnesses. All the ingredients of section 302 IPC are satisfied. The prosecution has successfully proved beyond reasonable doubt its case against the accused Narender for the offence punishable u/s 302 of IPC. Accordingly, accused Narender is hereby convicted for the offence punishable under section 302 IPC. However, he is acquitted for the offences punishable u/s 120B and 506 of IPC. Let the convict be heard on the quantum of sentence and grant of compensation on the next date of hearing.
ANNOUNCED IN THE OPEN COURT
On 08-07-2024 PANKAJ Digitally signed by
PANKAJ ARORA
ARORA Date: 2024.07.08 16:02:54
+0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/ 08-07-2024.
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