Delhi District Court
State vs Shekhar Singh on 31 January, 2024
IN THE COURT OF ANKITA LAL
ADDL. SESSIONS JUDGE, (FTC) NORTH EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CNR No. DLNE01-000300-2015 FIR No. 528/15
SC No. 4450/2015 PS New UsmanPur
U/S: 302/34 IPC
State
Versus
1.Shekher Singh Negi & Ors.
S/o Sh. Gopal Singh,
R/o H.No. 85/9, Gali No. 43, Pusta
Som Bazar, South Garmi Delhi.
2.Bhaskar Rawat @ Golu
S/o Sh.Ramesh Singh
R/o H.No. A-229/7, Gali No. 9/11, South
Gamri.
3.Khem Singh Bisht @ Raju,
S/o Sh. Ram Singh Bisht
R/o H.No. A-226/E, Gali No.10
Sourth Gamri, Delhi.
Date of institution : 10.08.2015
Judgment reserved on : 08.01.2024
Judgment delivered on : 31.01.2024
JUDGMENT
1. Briefly stated the prosecution case is that on 12.05.2015 at about 11.50 p.m., all the accused persons, namely (i) Shekhar Singh Negi, (ii) Bhaskar Rawat @ Golu and (iii) Khem Singh Bisht @ Raju, in furtherance of their common intention, caused the death of one Rajender and thereby they committed murder of said Rajender u/s 302/34 IPC. An FIR No. 528/15 was registered vide D.D. entry no. 3 A dated 13.05.2015 and the matter was entrusted to SI Dharmender for investigation. CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 1 The accused persons were arrested in the present FIR on dt. 14.05.2015.
2. The FIR was lodged upon a call received from one caller namely Md. Ali @ Munna, who informed about a quarrel and an injured at 4th Pusta, Nale ki pulia, Kartar Nagar, Delhi. When the police reached at the spot, the injured had already been shifted to the JPC hospital. The police fould stains of blood at the spot. When IO SI Dharmender went to the hospital, he was informed about an unknown person, aged about 35 years being brought dead to the hospital. IO SI Dharmender collected the MLC, which mentioned the history of abrasion on right side of forehead, lacerated wound on occipital and lacerated wound on left side of eye. A mobile phone and certain money was also recovered from the dead body, which was seized by the IO. The Crime Team was called at the spot by IO, which conducted its investigation and found a stone/rock stained with blood at the spot and one bathroom slipper. The IO seized the said stone by breaking it into two parts ie. one part having blood stain, and the other part without blood stain, and prepared separate pullandas. The IO also lifted the blood stains from the spot on a blood gauze.
3. During the investigation, the dead body was identified as that of Rajender S/o Lt. Sh. Pratap Singh. The brothers of the deceased, namely Raju and Narender, were called to identify the dead body and after the post-mortem, the dead body was handed over to the brother of deceased, namely Raju. During the invesigation, with the help of a secret informer accused CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 2 Bhaskar Rawat @ Bholu and accused Khem Singh @ Raju and accused Shekhar Singh Negi were arrested and they admitted their crime of causing the death of deceased Rajender in their disclosure statements. IO also took the accused persons to the spot and prepared the pointing out memo of scene of crime and also made recovery of a piece of stone/rock used by them while committing the offence, at their instance. During the invesigation, two motorcycles were also seized, which were used by accused persons on the day of crime. IO also collected relevant documents and recorded the statement of the witnesses.
4. On completion of investigation, the charge-sheet was filed against the accused persons for the offences punishable under sections 302/34 IPC and the case was sent for trial.
5. Vide order dated 12.10.2015 the charges were framed upon accused by the Predecessor of this Court for the offences punishable under section 302/34 IPC, to which all the three accused persons pleaded not guilty and claimed trial.
6. To establish its case, the prosecution had tendered a list of 28 prosecution witnesses in the main chargesheet.
7. To prove the guilt of the accused, the prosecution has examined 33 witnesses.
a) The complainant/public witness:
8. PW-2 was the cousin of deceased. He identified the dead CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 3 body of his cousin brother Rajender in mortuary of GTB hospital. He deposed that they received the dead body of Rajender after post mortem vide receipt Ex. PW2/B.
9. PW-12 is the mother of deceased Rajender. She deposed that on 12.05.2015 at 10.00 PM, the accused persons Shekhar Singh Negi and Raju came to their house. She deposed that she knew the accused persons as they were residing in the next street. She further deposed that the accused Raju and Shekhar Singh Negi called her son outside the house and they stated that they would come after sometime, but her son did not return in the night. She deposed that they had some "paise ka len den" with her son Rajender. She further deposed that on the next day at about 04.00 AM, her son Raju started searching for his brother Rajender, and they reached at Kartar Nagar pulia, where they found a police official, who asked them to reach the hospital. She deposed that she found the dead body of his son Rajender in hospital and identified the said dead body of his son.
10. During the cross-examination, PW12 deposed that her deceased son Rajender had no other friends apart from the accused persons. She deposed that her house is on the main road of 'som bazar', and there is many traffic movement on the said road and there are also other shops in front of her house. She deposed that she had heard the voice of accused persons when they called out for her deceased son Rajender, and she had come out of her house on hearing the voice and her son Rajender also came out on his own. She stated that CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 4 accused Raju and Shekhar Singh Negi had come to her house on that day on one motorcycle and, soon thereafter, accused Golu also came on his motorcycle, and thereafter, all the three accused left the spot with her deceased son Rajender. She further deposed that her deceased son was carrying a mobile phone. She also deposed that she did not visit the house of the accused persons when her deceased son did not return and she did not search her son in her relations as well. She also deposed that she had not asked her daughter Sunita to make call to her son Rajender on his mobile. She further deposed that her deceased son Rajender was wearing a shirt with black and white stripes and a black pant when he left the house and was also wearing slippers.
11. She further deposed that when her son left the house, the grocery shop opposite to her house was open, and Brahm Singh was sitting in the said shop. She further deposed that she and her other son Raju left their house at about 04.00 AM to search for her son Rajender, and they reached at Kartar Nagar Pulia at 05.00 AM. She has also stated that they had not lodged any police complaint till then regarding her son having not returned home. She deposed that she knew that her deceased son Rajender had some money transactions with the accused persons as he used to give money to them in her presence. She further deposed that she does not know the exact amount of transactions between her deceased son and accused persons. She also stated that she knows accused Shekhar Singh Negi for last about 10 years, but she has never met him. She denied all other formal suggestions.
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12. PW-13 Brahm Singh deposed that deceased Rajender was his nephew. He further deposed that on 12.05.2015 at about 10.00 p.m, when he was present at his shop, he saw that accused persons Shekhar Singh and Raju came on his motorcycle to the house of deceased Rajender, who used to live opposite to the grocery shop of PW-13. He further deposed that his nephew Rajender sat on the motorcycle, which was driven by accused Raju and accused Shekhar Singh was sitting behind Rajender. He further deposed that he asked them where they were going, but the accused persons stated that they would return after some time. He further deposed that on the next day, at about 03.00-4.00 AM, police called him outside his house and told him that Rajender had died. He deposed that he we went to the GTB hospital and identified the dead body of Rajender. He further deposed that after seeing the dead body of his nephew Rajender, he firmly believed that Rajender had been killed by the accused persons.
13. During his cross-examination, he deposed that he used to open his shop at 07.00 a.m, but there was no specific time of closing the shop, but generally he used to close by 11.00 p.m. He further deposed that he was present on the thiya of his shop, when the accused persons came to the house of deceased Rajender on the day of incident. He deposed that mother of deceased Rajender, namely Ramwati, was also standing there. He further deposed that he knew the name of accused Khem Singh @ Raju, as he had opened the shop in the house of deceased Rajender, and he knew accused Shekhar Singh who CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 6 used to remain with Khem Singh @ Raju and accused Bhaskar used to visit the said shop. He denied all other formal suggestions put to him. No other material contradictions are found in his testimony during cross-examination.
14. PW-14 is an eye witness. He deposed that he was running a parking near Lal Mandir at 4th Pushta, Kartar Nagar, Usmanpur. He deposed that on 12.05.2015 at about 11.30 p.m, when he was going to his house from parking, he saw four boys were eating and drinking. He further deposed that he reached his house and after sometime he heard the voice of crying "bachao bachao" and saw the said boys were pushing another boy and when he reached at the spot, the boys ran away from there. He further deposed that public persons had assembled there and a boy was lying there in an injured condition. Thereafter, he made a call at 100 number from his mobile phone and after sometime a police gypsy reached at the spot and had taken the injured to the hospital.
15. During cross-examination, PW-14 deposed that he had seen the said boys from a distance of 15-20 feet, while they were standing there. He deposed that the said boys were about 5 ½ - 6 ft. tall. He further deposed that they were pushing a boy with their hands. He also deposed that 10-15 public persons had gathered there. He further deposed that he cannot tell the type of clothes which the said boys were wearing. He also deposed that nobody tried to stop the said boys out of fear. He also deposed that two boys ran away from the spot in his presence towards Nala, Kartar Nagar. He further deposed that CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 7 two male members of the family of the deceased reached at the spot at about 06.00-06.30 a.m. He also deposed that there are residencial houses on both sides of parking and there is a nala on one side. He also deposed that there is no street light at the spot. He also deposed that the parking is an open parking and has no gate. He further deposed that the PCR van reached at the spot within 05-10 minutes of his call.
16. PW-14 was again re-examined by Ld. APP for the State, during which he deposed that he saw two boys running on a scooty and he denied the suggestion that he made a false statement regarding the number of boys and the number and type of vehicle used by the said three boys while running from the spot. He also deposed that the site plan of recovery of the dead body was prepared at his instance and he pointed Mark A on the site plan as the place where the dead body was found. The site plan is Ex. PW14/B.
b) Police Witnesses:
17. PW-1 HC Hans Kumar deposed that he was on duty at channel no. 145, Control Room, PHQ, New Delhi. He deposed that he received a call regarding quarrel and injured near Lal Mandir, Nale Ki Pulia, Kartar Nagar. He produced form no.1, which is Ex. PW1/A and also brought certificate u/s 65 B Indian Evidence Act, which is Ex. PW1/B. He was not cross- examined despite opportunity given to the defence.
18. PW-3 Insp. Mahesh Kumar was the Draugtsman. He CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 8 deposed that on 29.07.2015, he visited the place of incident at the instance of IO Insp. Rajiv Ranjan, ie. at Lal Mandir, Nale Ki Pulia, Kartar Nagar and had taken rough notes and measurements of the place. He prepared scaled site plan on 31.07.2015 and handed over the same to the IO, which is Ex. PW3/A. He further deposed that on 05.05.2016 he again visited the spot with IO Insp. Rajiv Ranjan and took measurements of the distance between the house of the deceased and the place of incident, which was about 500 meters. He further deposed that he prepared revised site plan to scale Ex. PW3/B of the place of incident, where the spot of incident is shown at point A and the house of the deceased is shown at point E.
19. He was cross examined by Ld. Counsels for the accused persons. During cross-examination, he stated that he had not measured the distance between point A and point E with any measurement scale. He further stated that he measured the said distance with the speedometer of his motorcycle No. DL 4SZ3494. There are no other material contradictions in his cross-examination.
20. PW-4 Retd. SI Amar Singh was the Duty Officer at PS New Usman Pur. He deposed that on 13.05.2015, he received an information about quarrel and injured at Lal Mandir, Nale Ki Pulia, Kartar Nagar and he recorded roznamcha register vide DD No. 3A which is Ex. PW4/A. On the same day, at 03.30 a.m., Ct. Chhatar Narayan produced a rukka before him and he made an endoresment Ex. PW4/B on the rukka. Copy CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 9 of FIR is Ex. PW4/C and copy of DD No. 5 A is Ex. PW4/D and certificate under section 65 B Indian Evidence Act is Ex. PW4/E. He was cross-examined by Ld. Counsels for the accused persons. During cross-examination, PW-4 admitted that he had not taken the thumb impressions or signatures of the complainant or the informant in column no. 14 in the FIR. He further admitted that he did not mention time of departure of Ct. Chhatar Narayan in DD No.5A.
21. PW-5 SI Suman Kumar was the Incharge Crime Team, who deposed that on 13.05.2015, he alongwith SI Rajender Singh (finger print expert) and HC Zile Singh (photographer) reached near nala, 4th Pusta, Kartar Nagar. He further deposed that SI Dharmender and Insp. Rajeev Ranjan met him there. He collected blood, one slipper and one small stone piece from the spot, and thereafter, he reached JPC hospital and HC Zile Singh had taken the photographs of the dead body. He further deposed that he went to the same spot of incident and prepared the Scene of Crime Report, which is Ex. PW5/A. He was cross-examined by Ld. Counsels for the accused persons. During cross-examination, PW-5 admitted that he prepared the report on the spot and further stated that blood was lying near the pulia and was at a distance of about 6 feet. from pulia. He further deposed that blood, stone and slipper were not seized in his presence. He further deposed that he could not tell the distance between places where blood and stone were lying, but stated that stone was lying at corner of nala. He could not tell the size of stone. He further deposed that the site plan was not prepared in his presence.
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22. PW-6 HC Zile Singh was the photographer of the Crime Team. He deposed that on 13.05.2015, he alongwith SI Rajender Singh, SI Suman Singh reached near Lal Mandir, Nale Ki Pulia, Kartar Nagar. He stated that SI Suman Kumar inspected the scene of crime, and he had taken 17 photographs of the scene of crime which are Ex. PW6/A-1 to Ex. PW6/A-6. Thereafter, he reached at JPC hospital and took photographs of dead body, which are Ex. PW6/A-7 to Ex. PW6/A-17. He brought negatives of the photographs which are Ex. PW16/B-1 to Ex. PW6/B-17. He was cross-examined by Ld. Counsels for the accused persons. During cross-examination of PW-6, he stated that he did not notice whether any street light was functioning at the spot or not, and stated that he had taken the photographs with his search light. He also could not tell the distance of blood etc. from pulia. He further stated that he could not tell the size of stone, but it was a small stone. He further stated that there was only only one stone at the spot.
23. PW-7 Ct. Manoj was a Duty Officer and formal witness, who had only delivered the copies of FIR at the residence of concerned concerned ACMM, ACP, DCP, Addl. DCP-I and II and Joint CP at about 04.00 a.m on 13.05.2015. He was cross- examined by Ld. Counsels of accused persons, but there are no material contradictions.
24. PW-8 ASI Sompal Singh was the PCR Incharge and a formal witness. He deposed that in the intervening night of 12/13.05.2015, he was on duty from 08.00 p.m to 08.00 a.m. CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 11 He received a PCR call at about 12.05 a.m. on his wireless set regarding quarrel and injured and he went at the spot i.e. near nale ki pulia, Lal Mandir, 4th Pusta, Kartar Nagar. Upon reaching the spot, he found an unknown injured person in unconcious condition. He further deposed that he kept injured in his PCR van with help of his staff and took him to JPC hospital, Shahstri Park. He further deposed that the injured was examined by the doctor vide MLC No. A-245 and declared 'brought dead'.
25. PW-8 was cross-examined by Ld. Counsels for accused persons. During cross-examination, he stated that he reached the spot at about 12.10 a.m and no public persons were present there. He further stated that when he lifted the injured in his van, he had given the information to Control Room. He further stated that one mobile phone and Rs. 125/- were recovered from the injured. He further stated that one blood stained stone was also lying on the spot near injured. He further stated that he did not notice any other article at the spot.
26. PW-9 SI Inderveer Singh had conducted the inquest proceedings of the deceased. He deposed that on 13.05.2015 at about 12.00 noon, he alongwith Ct. Shrikant reached mortuary, GTB hospital. He met Insp. Rajiv Ranjan and on his directions, he prepared inquest papers of deceased Ex. PW9/A. The dead body of deceased Rajender was identified by his brother, namely Raju and Narender, and he recorded their statements Ex. PW9/B and Ex. PW2/A. He further stated that postmortem of the body of the deceased Rajender was CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 12 conducted on his request. He handed over the dead body to Raju and Narender.
27. PW-9 was cross-examined by Ld. Counsels for accused persons. During cross-examination, he stated that the deceased Rajender was wearing grey trousers and multicolour shirt and clothes of the deceased were having blood stains.
28. PW-10 Ct. Shrikant is a formal witness who had accompanied PW-9, and he deposed on the same lines as PW-
9. He further deposed that on 18.05.2015, he collected a pullanda sealed with seal of 'JSV' from Mortuary of GTB hospital. He handed over the said exhibits to Insp. Rajiv Ranjan and IO seized the said exhibits Ex. PW10/A. PW-10 was cross-examined by counsels for accused persons, but there are no material contradictions.
29. PW11 HC Kishan Singh deposed that he was working as MHC (M) in PS New Usmanpur. On 13.05.2015, Insp. Rajiv Ranjan deposited 6 parcels sealed with seal of 'DK' and he made entry at Sno. 2434 in Register no. 19, which Ex. PW11/A. He further stated that on 14.05.2015, Insp. Rajiv Ranjan deposited two motrocycles in malkhana and made entry in register no. 19 at Sno. 2435, which is Ex. PW11/B. On 18.05.2015, Insp. Rajiv Ranjan deposited 2 pullandas sealed with seal of 'JSV' in malkhana and he made entry at Sno. 2449 in register no. 19, Ex. PW11/C. On 06.08.2015, he sent 8 parcels sealed with seal of 'JSV' to FSL through Ct. Rahul after returning from FSL. He made entry at Point X, Y and Z CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 13 in register no. 19. Copy of RC is Ex. PW11/D and copy of receipt/acknowledgmentis Ex. PW11/E. PW-11 was cross- examined by Ld. Counsel for accused person and he admitted that no time is mentioned in the entries list so proved by him.
30. PW-15 was Ct. Rajesh, who was a formal witness and he was on duty in JPC hospital on 13.05.2015, and he proved the factum of injured being brought in emergency to the hospital, and was declared 'brought dead' by the concerned doctors. There are no material contradictions in his cross-examination by the defence.
31. PW-16 Ct. Gajender is also a formal witness, who had collected the postmortem report of deceased Rajender from GTB Hospital on 13.06.2015, at the instance of Insp. Rajiv Ranjan. He handed over the report to the IO and deposed that it was not tampered during his custody. PW-17 was cross- examined only by Ld. counsel for accused Bhaskar Rawat, but there are no material contradictions.
32. PW-20 ASI Rajbir Singh had accompanied IO SI Dharmender, Ct. Chhattar Narayan and Ct. Manoj on receipt of DD No. 3A at about 12.07 A.M in the intervening night of 12/13.05.2015, to the spot i.e. near nala, Lal Mandir, 4th Pusta, New Usmanpur. He deposed that he met a caller namely Ali Mohammad, who informed them that the injured had been shifted to JPC hospital by PCR van. He deposed that the blood stains were found at the spot. Thereafter, PW-20 accompanied SI Dharmender and Ct. Manoj to JPC hospital, after leaving CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 14 Ct. Chattar Narayan at the spot. He deposed that IO SI Dharmender collected the MLC of the injured, who was reported 'brought dead' by the concerned doctors. PW-20 proved the seizure memo Ex. PW20/A of one mobile phone make Sansui and Rs. 125, which were recovered from the body of the deceased. He also proved the copy of the request letter of SI Dharmender regarding preservation of the dead body in the mortuary of GTB hospital, which is Ex. PW20/B. He identified the mobile phone of the deceased as Ex. P-1 and Rs. 125 as Ex. P-2 (colly). He deposed that the IO tried searching for the accused persons, but they could not be found. PW-20 was cross-examined by Ld. Counsels for accused persons. During cross-examination, he stated that blood stains were found on nala, near Lal Mandir. He also admitted that the road of the spot was cemented, and light was also coming from the bulbs fixed under the balcony of the roofs of nearby houses. He also stated that one slipper was also lying on the ground. He also stated that the blood at the spot was fresh and it could be lifted with cotton. He also stated that there was one stone at the spot.
33. PW-21 Ct. Manoj had also accompanied IO SI Dharmender, ASI Rajbir Singh and Ct. Chattar Narayan at the spot on receipt of DD No. 3A dt. 13.05.2015 at 12.07 AM. He deposed on the same lines as PW-20. He was cross-examined by Ld. Counsels for accused persons, but there are no material contradictions in the said cross-examination.
34. PW-22 HC Nathu Ram had joined the investigation of the CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 15 case on 14.05.2015, with IO Insp. Rajiv Ranjan, Ct. Ankit and Ct. Sachin. He proved the arrest of accused Khem Singh Bisht vide arrest memo Ex. PW22/A, the arrest of accused Bhaskar Rawat vide arrest memo Ex. PW22/B, and the arrest of accused Shekhar Singh Negi vide arrest memos Ex. PW22/C. He also proved their respective personal search memo as Ex. PW22/D, PW22/E and PW22/F. He also proved their respective disclosure statements as Ex. PW22/G, Ex. PW22/H, and PW22/I. He further deposed that accused persons led them to the scene of crime through pointing out memo Ex. PW22/J. He also proved the seizure memo of a motorcycle bearing no. DL 5SAL6677, owned by Shekhar Singh Negi and recovered from his residence vide seizure memo Ex. PW22/K. He also proved the seizure memo of another motorcycle bearing no. DL 13SG7331, recovered from the residence of accused Khem Singh from his instance, vide seizure memo Ex. PW22/L. He also proved the seizure memo of the piece of blood stained stone recovered from the road side by the IO, which was kept in a cloth and a pullanda was prepared, vide seizure memo Ex. PW22/M. He correctly identified all the accused persons in the court. He also correctly identified the motorcycles bearing no. DL 5SAL6677 and bearing no. DL 13SG7331 as Ex. P-3 and P-4 respectively. He also correctly identified the piece of stone produced in a sealed envelope from FSL as Ex. P-5.
35. PW-22 was cross-examined by Ld. Counsels for the accused persons, wherein he denied all the formal suggestions put to him. There are no material contradictions in the said CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 16 cross-examination of PW-22.
36. PW-24 Ct. Sachin was a formal witness who had joined the investigation with IO SI Rajiv Ranjan, HC Nathu Ram and Ct. Ankit on 14.05.2015. He deposed on the same lines as PW-22. PW-24 was cross-examined by Ld. Counsel for the accused persons, wherein he denied all the formal suggestions put to him. There are no material contradictions in the said cross- examination of PW-24.
37. PW-27 Ct. Mukesh Kumar was a formal witness who had joined the investigation with IO SI Rajiv Ranjan on 22.11.2015. He proved the site plan of place of recovery of motorcycle no. DL-13SG-7331 and DL-5SAL-6677, as Ex. PW27/A and Ex. PW27/B respectively. He was cross- examined by defence, but there are no material contradictions in the said cross-examination of PW-27.
38. PW-30 is the first IO SI Dharmender Kumar. He deposed that on 13.05.2015, on receipt of copy of DD No. 3A, he alongwith ASI Rajbir, Ct. Manoj and Ct. Chattar Narayan, reached at the spot i.e. 4th Pusta, Lal Mandir, Kartar Nagar. He then deposed on the same lines as PW-20 (ASI Rajbir) and PW-21(Ct. Manoj) and corrobrated the invesigation conducted by him. He also proved endorsement Ex. PW30/A on DD No. 3A. He further deposed that after the registration of the FIR, further invesigation was assigned to IO Insp. Rajiv Ranjan. PW-30 further proved the seizure memo of blood stained piece of stone which was seized by IO Insp. Rajiv Ranjan from the CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 17 spot, vide seizure memo Ex. PW30/B. He further proved the seizure memo of a slipper recovered from the spot and seized by IO Insp. Rajiv Ranjan vide seizure memo Ex. PW30/C. He also proved the seizure memo of the blood recovered from the spot and kept in a plastic container, alongwith certain pieces of concrete on which the said blood was found, which was seized by IO Insp. Rajiv Ranjan vide seizure memo Ex. PW30/D. He also correctly identified the mobile phone and Rs. 125 recovered from the body of deceased as Ex. P-1 and Ex. P-2. He also correctly identified the piece of stone as Ex. P-6, and another piece of stone as Ex. P-7. He also correctly identified the slipper as Ex. P-8.
39. PW-30 was cross-examiend on behalf of Ld. Counsels for the accused persons. During his cross-examination, he deposed that DD No. 3 A was received at 12:05 AM and he had reached at the spot at about 12:30 AM. He deposed that IO Insp. Rajiv Ranjan alongwith other senior police officers reached at the spot at about 01:00 AM, and the exhibits were duly sealed by the IO Insp. Rajiv Ranjan at about 04:15/04:30 AM. He also deposed that he had noticed injuries on the head and other parts of the body of the deceased. He denied all other formal suggestions put to him.
40. PW-31 was Ct. Chattar Narayan, who had accompanied IO SI Dharmender Kumar during the invesigation. He deposed on the same lines as PW-30(SI Dharmender Kumar). He was cross-examined by the defence, but there are no material contradictions in the said cross-examination of PW-31.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 18
41. PW-33 is the second and main IO/Insp. Rajiv Ranjan. He deposed that on 13.05.2015, upon the directions of SHO concerned, he reached the spot i.e. nale ki pulia, 4th pusta, Lal Mandir, Kartar Nagar, when we met IO SI Dharmender, who briefed him about the initial invesigations carrried out by him. He further deposed that he also made inquiries from Incharge Crime Team SI Suman Kumar, who was also present there. He deposed that he searched for the caller/eye witness Md. Ali and when he came at the spot, he made inquiries from him and prepared a rough site plan of the place of occurrence at his instance. He deposed that he had lifted the exhibits from the spot at the instance of SI Dharmender and seized them. He further deposed that one lady, namely Ramwati, alongwith her son, namely Raju, came at the spot and told that her son, namely Rajender, had been missing since last night. He further deposed that he took them to the mortuary of the GTB hospital, where the dead body of the deceased was preserved and on seeing the dead body, Ramwati had identified the same as that of her son Rajender and even the other son of Ramwati, i.e. Raju, had also identified the dead body. He further deposed that SI Inderveer had handed over the authority letter to him from SHO concerned for getting the post-mortem of the body conducted, accordingly, SI Inderveer had prepared the inquest papers.
42. PW-33 further deposed that one Brahm Singh also reached at the spot, who identified himself as the maternal uncle of deceased Rajender, and he told PW-33 that he had seen CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 19 deceased Rajender with his friends, namely accused Shekhar Singh Negi, Bhaskar Rawat @ Golu and Khem Singh Bisht @ Raju, going together on two motorcycles near Pulia, which was near his house. He further deposed that the said Brahm Singh suspected these persons for committing the murder of deceased Rajender. He further deposed that he went to the houses of these three persons, but none was found present at their houses.
43. PW-33 further deposed that on 14.05.2015, he organised a raiding party for the arrest of the said accused persons, which included HC Nathu Ram (PW-22), Ct. Ankit and Ct. Sachin (PW-24). PW-33 deposed regarding the mode and manner of arrest of three accused persons, on the same lines as PW-22. He corroborated the arrest memos, personal search memos and disclosure statements of all the three accused persons. He also corroborated the seizure memos of the pieces of stones and the two motorcycles. He further deposed that on 18.05.2015, he collected the exhibits pertaining to the post-mortem of the deceased from Ct. Shrikant(PW-10), and seized the same and corroborated the same. He deposed that during the invesigation, he also collected the photographs from the photographer of the Crime Team, and the rough notes and the scaled site plan from the Draugtsman Insp. Mahesh Kumar. He further deposed that he had sent the exhibits to FSL. He also deposed that he collected the CDR of mobile phone of deceased Rajender i.e. 7838471045, and CDR of mobile number of caller Md. Ali i.e. 9582992936. He also prepared the site plan of the place of recovery of the two motorcycles.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 20 PW-33 correctly identified the case property i.e. slipper as Ex. P-8, piece of stones as Ex. P-6 and Ex. P-7, one slab of stone as Ex. P-5, some concret pieces as Ex. P-15, some blood stained concrete pieces as Ex. P-16, a cotton gauze having blood as Ex. P-17, and photographs of two motorcycles as Ex. P-3 and P-4.
44. He was cross-examined by Ld. Counsels for the accused persons at length. During his cross-examination, he deposed that after the arrest of the accused persons, he had not called the caller Md. Ali at the spot, for the identification of the accused persons for the purpose of identifying the vehicles. He also stated that the place of accused persons was around 1-1.5 km away from the spot of incident. He also deposed that during the investigation, he did not find any evidence of any previous quarrel in between the deceased and accused Shekhar prior to the incident. He also stated that he did not find any written document of any monetary transactions between the deceased and accused Shekhar. He denied all other formal suggestions put to him regarding the incriminating facts and mode and manner of the investigation.
c) Doctors/Experts as witnesses:
45. PW-18 is the concerned doctor from Department of Forensic Medicine Science, GTB Hospital, who deposed that on 13.05.2015, he had conducted a postmortem of deceased Rajender. He proved the condition in which the dead body was produced before him for postmortem and further proved the CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 21 external ante-mortam injuries and internal injuries on the dead body, vide his report Ex. PW18/A. He also desposed that the cause of death was 'shock as a result of ante-mortem head injury produced by blunt force impact' and the injury no. 1 and 2 in his report, were sufficient to cause death in ordinary course of nature individually and collectively. He also desposed that the injury number 1 to 7 were produced by blunt force impact. He also deposed that the time since death was about half a day. PW-18 also proved the exhibits which were collected and sealed by him and handed over to the police. The same are Ex. P-10 (blood gauze of the deceased, P-11 (dirty colour pant with belt having brown stains), P-12 (multicoloured lining shirt having blood stains), P-13 (baniyan having brown stains) and P-14 (bluish underwear with brown stains).
46. PW-18 was cross-examined by Ld. Counsels for the accused persons. During cross-examination, he deposed that injury number 1 and 7 in totality are not possible by fall from standing height. He also deposed that the possibility of the said injuries no. 1-7 are unlikely to be caused by road traffic accident. He also deposed that no videography and no photography of postmortem proceedings were prepared. He also admitted that no liquor or any intoxicating substance was found in the body at the time of postmortem. He also deposed that the injuries in totality from no. 1-7 are also not possible by fall from the running vehicle.
47. PW-19 was the concerned doctor/CMO of JPC hospital, CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 22 who had examined the deceased in emergency when he was brought to emergency ward of the hospital. He deposed that on examination, he found bleeding from the head and no response to painful stimuli, no blood pressure and no pulse and the pupils were dilated and fixed. He also deposed that he found abrasion on right side of forehead, lacerated wounds on occipital measuring 1x0.5x0.5 cm, and a lacerated wound on left eyebrow. He also deposed that the patient was brought dead. He also deposed that a mobile phone make of Sansui company and Rs. 125 were recovered from the dead body. He proved the MLC prepared by him Ex. PW19/A. He was recalled for examination to clarify the time of examination mentioned in the MLC, and he clarified that the patient was brought dead in casualty at 00.18 hrs.
48. PW-19 was cross-examined by Ld. counsels for accused persons, wherein he deposed that no blood was flowing from the injuries as the blood had clotted. He also deposed that from the clotting, he could say that the injuries were sustained about 1-2 hours back. He denied the suggestions that such injuries can be sustained by fall on any surface.
d) Independent public/formal witnesses:
49. PW-23 was the Nodal Officer of Vodafone Mobile Services Ltd. He produced the original Customer Application Form (CAF) in respect of Vodafone mobile number 9582992936, which is Ex. PW23/A. He deposed that the said number was subscribed in the name of Sh. Md. Ali. He proved CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 23 the copy of ration card of said applicant Md. Ali, submitted as identity proof, as Ex. PW23/B. PW-23 also produced Call Details Record (CDR) in respect of abovesaid mobile number for the period 13.05.2015 at 00:00:00 hours to 13.05.2015 had 23:59:59 hours, which is Ex. PW23/C. He also proved certificate u/s 65 B IEA in support of CDR of the said mobile number, as Ex. PW23/D, and the Cell I-Chart/Tower location chart as Ex. PW23/E. He deposed that a call was made from the said number on 13.05.2015 at 00:00:04 hours on 100 number and call duration was 106 seconds, and further deposed that as per the tower location chart, the location of caller was within the reach of tower/cell at J-422, 4 th Pusta Road, Kartar Nagar, Delhi. PW-23 also produced CAF of Vodafone number 7838471045, which was issued to Raju S/o Sh. Pratap. He proved the CAF as Ex. PW23/F, copy of election I-Card of applicant Raju as Ex. PW23/G. He also produced CDR of the said mobile number from the period 11.05.2015 at 00:00:00 hours to 13.05.2015 at 23:59:59 hours as Ex. PW23/H. He proved the certificate u/s 65 B of IEA in support of said CDR as Ex. PW23/I.
50. PW-23 was cross-examined on behalf of Ld. Counsel for the accused persons. During his cross-examination by Ld. Counsel for accused Khem Singh Bisht, he admitted certain outgoing calls made from mobile number 7838471045 to other numbers and certain incoming calls received on the said number.
51. PW-25 was a formal witness of Transport Authority, who CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 24 came to depose about the ownership of motorcycle no. DL5SAL6677, which was found to be registered in the name of accused Shekhar Singh Negi vide vehicle particulars Ex. PW25/A. He was not cross-examined by the defence despite opportunity.
52. PW-26 was a formal witness of Transport Authority, who came to depose about the ownership of motorcycle no. DL13SG7331 which was registered in the name of Kishan Singh, S/o Sh. Ram Singh vide vehicle particular Ex. PW25/A. He was not cross-examined by the defence despite opportunity.
53. PW-28 is the owner of motorcycle no. DL 13-SG-7331 of Hero Honda. He deposed that he had taken the said motorcycle on superdari vide superdiginama Ex. PW28/A. He identified the photographs of motorcycle Ex. PW28/B to Ex. PW28/B-6 and also deposed that he had brought registration certificate of the said motorcycle, and he proved the copy of the same as Ex. PW28/C. He was cross-examined by defence, but there are no material contradictions in the said cross-examination of PW-
28.
54. PW-29 is the superdar of motorcycle bearing registeration no. DL-5SAL-6677, which was registered in the name of his younger brother i.e. accused Shekhar Singh Negi. He proved the Power of Attorney executed by Shekhar Singh Negi as Ex. PW29/A and the superdaginama as Ex. PW29/B. He also identified the photographs of said motorcycle Ex. PW29/C-1 to Ex. PW28/C-6. He was cross-examined by the defence, but CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 25 there are no material contradictions in the said cross- examination of PW-29.
Statement of accused u/s 313 Cr.P.C
55. After concluding the prosecution evidence, all the incriminating circumstances were put to all the three accused persons under Section 313 Cr.PC., wherein they refused all the allegations leveled against them and pleaded innocence.
56. Accused Shekhar Singh Negi stated that 10-15 days prior to the date of incident, his motorcycle was hit by bullock cart of brother of deceased, namely Raju, on which some quarrel had taken place and accused Shekhar Singh was threatened of dire consequences. He also stated that in the night of 12.05.2015, he alongwith his wife Deepa had gone to attend a pooja at the house of one Amit Srivastava at FF-51 B, Mangal Bazar, Laxmi Nagar, Shakarpur, Delhi, where he stayed in the night with his wife. He further stated that on 13.05.2015, he went to his duties from the house of said Amit Srivastava and he returned in the evening and after picking his wife from the said house of Amit, he returend home.
57. Accused Bhaskar Rawat @ Golu stated that he was doing a job in Sargam India Electronics at Indirapuram, Ghaziabad, UP. He deposed that on 12.05.2015, after completing his duty, he left from his office at 08:42 PM and reached his home at 10:45 PM. He deposed that he remained at his house till 12:30 AM and in the intervenning night of 13/14.05.2015, the police CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 26 officials apprehended him from his house and falsely implicated in the present case.
58. The accused persons stated that they wish to lead Defence Evidence. In his defence, accused Shekhar Singh Negi examined three witnesses, accused Bhaskar Rawat examined three witnesses and accused Khem Singh examined one witness.
Defence Evidence:
Accused Shekhar Singh Negi examined following witnesses
59. D1W1 Amit Srivastava, deposed that he was working under the employment of Techmek Traders, office at F-234 B, Laxmi Nagar, Delhi-92 as a Sales Manager. He deposed that accused Shekhar Singh Negi was also employed in his office in the year 2015. He further deposed that in the night of 12.05.2015, there was a pooja at his residence at FF-41B, Mangal Bazar, Laxmi Nagar, Delhi and he had invited accused Shekhar Singh Negi with his wife Deepa to attend said pooja at his house and both attended the said pooja. He further deposed that they both stayed whole night of 12.05.2015 at his residence. He further deposed that on 13.05.2015, accused Shekhar Singh Negi took his wife Deepa and left his residence. He further deposed that on 14.05.2015, accused Shekhar Singh Negi also reported his duty at Laxmi Nagar office at about 10.00 a.m. CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 27
60. D1W1 was cross-examined by Ld. APP for the State. During cross-examination, he deposed that accused Shekhar Singh Negi is not related to him. He further deposed that they were having office timings from 10:00 am to 07:00 pm during the relevant period. He further deposed that he did not know the residential address of accused Shekhar Singh Negi. He further stated that he had invited 15-20 persons and he had also taken photographs at the time of pooja ceremony. He deposed that he had not brought those photographs with him and he was also not sure whether those photographs were available with him or not. He also stated that he was not sure if any of the said photograph showed the presence of accused Shekhar Singh Negi at his residence at the said ceremony on the relevant day or not. He deposed that he had never contacted Insp. Rajiv Ranjan or told him that on the night of 12.05.2015 accused Shekhar singh Negi was with him in his house. He deposed that he had never made any written complaint to this effect.
61. D1W2 Sh. Ramesh Jajoo, is a proprietor of Techmek Traders. He deposed that that he was running his office at H.No. F-234/B, Laxmi Nagar on ground floor, and in 2015 accused Shekhar Singh Negi was also working in his above said company. He deposed that on 12.05.2015, 13.05.2015 and 14.05.2015, accused Shekhar Singh Negi had reported his duty at his office at 10:00 am.
62. D1W2 was cross-examined by Ld. APP for the State. During cross-examination, he deposed that accused Shekhar CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 28 Singh Negi was employed with him since July 2013 as a field officer. He deposed that he did not maintain any attendance register in his office and used to pay salary in cash to accused Shekhar Singh Negi. He denied the suggestion that the accused had never attended his office and that is why he had not produced the attendance register and also did not know the address of accused Shekhar Singh Negi. He denied the suggestion that accused Shekhar Singh Negi or Amit were never his employees at any point of time.
63. D1W3 Sh. Sachin deposed that he knew Raju S/o Sh. Pratap Singh since his childhood as he was residing in same locality. He deposed that about 10-15 days prior to 13/14/15.05.2015 at about 09:30/10:00 am, he alongwith his friend, namely Raj Kumar, were going to purchase milk from Mother Dairy, when he saw some crowd of persons and when he went there, some quarrel was going on between Raju and accused Shekhar Singh Negi. He deposed that the quarrel occurred because of an accident, which had taken place between the vehicle/buggi of Raju and motorcycle of accused Shekhar Singh Negi. He deposed that when he reached there, the matter was settled.
64. D1W3 was cross-examined by Ld. APP for the State. During cross-examination, he deposed that the accident had taken place at 5th pusta, near Mother Dairy, Gamri Road. He deposed that he did not file any written application with regard to the accident at any PS or before any court.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 29 Accused Bhaskar Rawat examined following witnesses-
65. D2W1 Sh. Lokesh Sharma deposed that he knew accused Bhaskar Rawat since 2012 as he was his friend and his house was about 2 houses away from the rented accommodation of the witness. He deposed that on 12.05.2015 at 10:00 pm at Shastri Park, he met with accused Bhaskar Rawat when he was returning from his shop at Chandni Chowk and he shared TSR towards 4th Pusta and reached there at about 10:20 pm. He further stated that they both enjoyed a juice of glass and then returned to their houses. He further stated that after having his dinner, he again met with accused Bhaskar Rawat and went for an evening walk with him till 11:20 pm, and thereafter, they retured to their respective houses. He deposed that he had never met accused Bhaskar Rawat since then.
66. D2W1 was cross-examined by Ld. APP for the State. During cross-examination, he deposed that he cannot tell the house number of accused Bhaskar Rawat. He deposed that accused Bhaskar Rawat was doing a job in Sargam Electronics at Vaishali, Ghaziabad. He further stated that on 12.05.2015, accused Bhaskar Rawat had gone to attend his duty. He deposed that he knew the date as he came to know on 13.05.2015, that accsued Bhaskar was arrested in a criminal case. He deposed that after two months he came to know that accused Bhaskar has been arrested in a murder case. He further stated that he did not try to meet any police officials between 13.05.2015 till the date when he visited the PS with the parents of the accused after becoming aware about the CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 30 involvement of the accused in a criminal case. He deposed that he had never given in writing any such facts which he has deposed before the Court, to any police officials. He denied all the formal suggestions put to him.
67. D2W2 Smt. Basanti Devi is the mother of accused Bhaskar Rawat. She stated that her son accused Bhaskar Rawat was 22 years old in 2015 and had studied from Usman Pur Government School and she produced the copies of his educational documents Mark D2W2/A (colly 4 pages). She further stated that accused Bhaskar Rawat used to leave house for his duty at about 09:00 am in the morning and used to return back from his duty after 10:30 pm during the relevant period. She further deposed that lastly he had gone for attending his duty on 12.05.2015. She further stated that her son accused Bhaskar Rawat was taken by 8-10 police officials from his house after 12:00 midnight during intervening night of 12/13.05.2015 on the pretext of making some inquiries from him and he was taken to PS New Usmanpur.
68. D2W2 was cross-examined by Ld. APP for the State. During cross-examination, she deposed that on 12.05.2015, her son accused Bhaskar Rawat left home at about 09:30/09:40 am and returned home at about 10:00/10:30 pm. She denied the suggestion that no police officials came to her house or that on 12.05.2015 her son accused Bhaskar Rawat was not present in the house in the evening hours. She also denied all other formal suggestions put to her.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 31
69. D2W3 Nitin Sikka deposed that he was working as Store Manager in Sargam Electronics, Indirapuram, near Aditya Mall, Ghaziabad, UP. He deposed that as told by his old staff, accused Bhaskar Rawat was Airtel Brand Promoter and in that capacity he used to visit their office. He deposed that timings for the promoters in his office were fixed from 11:00 am to 09:00 pm, but he could not tell any specific timings when accused Bhaskar Rawat used to visit his office. He deposed that he has never met accused Bhaskar Rawat in his office.
70. D2W3 was cross-examined by Ld. APP for the State. During cross-examination, he deposed that he could not produce any documentary proof to show that accused Bhaskar Rawat was a brand promoter, or that he ever visited their office at any point of time during the relevant period. He deposed that he had never seen any appointment letter or any documentary proof regarding the employment of accused Bhaskar Rawat. He also deposed that his company never made any kind of payment to accused Bhaskar Rawat at any point of time.
Accused Khem Singh examined following witness -
71. D3W1 Praveen deposed that on 12.05.2015 at about 02:00- 03:00 PM, he was present near Assal Temple, Church Colony, Sangam Vihar, where the house of his in-laws was situated. He deposed that he had gone to attend a small get together organised by his in-laws, and he met wife of accused Khem Singh in the said function. He further deposed that he inquired CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 32 from the wife of accused Khem Singh, namely Anjali, regarding accused Khem Singh, upon which she told him that the accused Khem Singh is on his duty and will reach after completing his duties. He deposed that on the next day, ie. 13.05.2015 between 10:00-11:00 am, 2-3 police officials visited the house of his in-laws and made inquiries from him regarding accused Khem Singh.
72. D3W1 was cross-examined by Ld. APP for the State. During cross-examination, he deposed that he was deposing before the Court in this case on the request of Anjali, wife of accused Khem Singh, and that accused Khem Singh is his co- brother(saadu). He deposed that on 12.05.2015, it was the birthday of his son, but he could not produce any document to prove the same. He further deposed that 10-12 persons had attended the said function, but no photographs were taken in the said function.He denied all other formal suggestions put to him.
Final arguments :
73. I have heard the arguments advanced before me by Ld. Addl. PP for the Sate and respective Ld. Defence Counsels.
74. Ld. Addl. PP for the State has submitted that the prosecution has been able to prove the commission of crime by all the accused persons, beyond all reasonable doubts. It is argued that the accused persons were friends of the deceased Rajender, and on the fateful night, the accused persons had CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 33 taken the deceased Rajender with them on their motorcycles, and after reaching at the spot of the incident i.e. at 4th Pusta, Nale ki pulia, Kartar Nagar, Delhi, the accused persons had a scuffle with the deceased Rajender, and during the said scuffle, with a common intention, they had hit the deceased with a stone found at the spot. It is argued that due to the said impact of the stone on the head of the deceased, he suffered fatal injuries and succumbed to death.
75. It is argued that PW-12 is the mother of the deceased, who had specially deposed that she had last seen her deceased son Rajender with the accused persons, as the accused persons had come to their house at about 10:00 PM on the night of the incident and they called out for deceased Rajender. She had specifically deposed that the accused persons came on two motorcycles and her son i.e. deceased Rajender, sat in between accused Raju and accused Shekhar Singh Negi on one of the motorcycles, and the other accused was on another motorcycle. It is argued that when deceased Rajender did not return home in the night, PW-12 had started searching for him alongwith her son, namely Raju, and when they reached at the spot, they met a police official, who told them to look for their son in the hospital. It is argued that PW-12 had identified the dead body of her son in the mortuary of the hospital. It is argued that PW-12 is the "last seen" witness, and her testimony is consistent and unrebutted.
76. It is further argued that PW-13, is a relative of the deceased, who had his shop opposite to the house of the CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 34 deceased. It is argued that PW-13 is also a "last seen" witness, and he had corroborated the testimony of PW-12. It is argued that the testimony of PW-13 is also consistent and unrebutted.
77. It is further argued that PW-14 is an eye-witness, and though there are ambiguity and inconsistencies reflected from his testimony, his testimony to the extent that he deposed that he had seen four boys in the night of the incident near the spot, who were drinking and eating and he heard cries of "bachao bachao" and then he saw the said boys were pushing another boy. It is argued that when he reached at the spot, the said boys had ran away from the spot and PW-14 saw one boy lying in an injured condition. It is argued that the said part of the testimony of PW-14 has corroborated the prosecution case, and should be relied upon.
78. It is further argued that the other witnesses examined during trial are police witnesses and medical and forensic experts. It is argued that the police witnesses have duly corroborated about the invesigation. It is argued that as per the medical evidence furnished on the record, the cause of death of the deceased was "shock as a result of ante-mortem head injury produced by blunt force impact". It is argued that the said injuries were sufficient to cause death in ordinary course of nature. It is argued that there is no rebuttal of the said medical and forensic evidence. It is argued that the death of the deceased was caused by hitting on his head with a stone. It is argued that blood stained stone was also recovered from the spot.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 35
79. It is argued that accused persons were last seen in the company of deceased and the time gap from the time when the witnesses had last seen the deceased in the company of accused person and the time of the death of the deceased is very small and there is a strong presumption u/s 106 Indian Evidence Act that the accused persons had committed the murder of the deceased. It is argued that the onus was upon the accused persons to explain the special circumstances within their knowledge regarding the cause of death of the deceased, which onus has not been discharged by the accused persons.
80. It is further argued that witnesses which the defence had examined in their support to lead a 'plea of alibi', are merely interested witnesses, and even otherwise, they have not been able to furnish any documentary proof or any photographs in support of the said plea. It is argued that the defence has not been able to bring any doubt in the prosecution case, and minor inconsistencies and ambiguities can be overlooked.
81. Thus, the prosecution has successfully proved the case through the complete chain of events qua the offences for which the accused persons have been charged, based upon the testimonies of public witnesses and the circumstancial evidence, there appears no reason to disbelieve the prosecution case. Hence, the prosecution has argued that the accused persons be convicted for the offence u/s 302/34 IPC.
82. On the other hand, it is submitted on behalf of defence that CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 36 the accused persons have been falsely implicated in the present case. It is submitted that the accused persons were friends of the deceased, and the prosecution has failed to show any motive for which the accused persons would murder their friend i.e. deceased Rajender. It is submitted that the mother of deceased (PW-12) had mentioned that there was some money transaction between her son and accused persons, but the said fact has not been substantiated on the record and no other personal enmity between the accused persons and the deceased had been shown by the prosecution.
83. It is further argued that the 'last seen theory' of the prosecution has also not been substantiated and there is a time gap of about 2-3 hours between the time when the accused persons have been allegedly seen with the deceased, and the actual time of death of the deceased as prove from the post- mortem report of the deceased. It is argued that, in-fact, the accused persons had never accompanied the deceased on the night of the incident and they have taken their separate plea of alibi, which has been proved through the testimony of the defence witnesses examined by each accused. It is argued that the said defence witnesses are independent witnesses, and their testimonies could not be rebutted by the prosecution.
84. It is further argued that the prosecution had examined three public witnesses i.e. mother of the deceased (PW-12), uncle / neighbour of the deceased (PW-13), and one independent eye witness (PW-14). It is argued that there are several ambiguities and contradictions in their testimonies. It is argued that PW-12 CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 37 and PW-13 have not been able to specify the exact time when they had last seen the deceased with the accused persons, and their testimonies have been rebutted on the said point. It is further argued that the independent eye witness i.e. PW-14 has also deposed contradictory facts on the record and also he could not identify the accused persons in the Court. It is argued that the said witness had also not seen the accused persons at the spot and no TIP of the accused persons was conducted for their identification, and even the accused persons have not been arrested at the instance of said independent eye witness. It is argued that the testimony of PW- 14 is not a reliable piece of evidence.
85. It is further argued that no recovery was effected from the accused persons to link the same to the alleged crime. It is argued that the recovery of two motorcycles at the instance of the accused persons, which motorcycles belonged to the accused themselves, does not categorically establish that the said motorcycles have been used by the accused persons for the commission of the alleged crime. It is argued that no other weapon of offence has been recovered at the instance of accused persons.
86. It is further argued that, in fact, the accused persons were not present at the spot of crime or anywhere near to that spot on the day of alleged incident. It is argued that accused Khem Singh Bisht @ Raju was away on his duty on the day of incident and after completing his duty, he had visited the house of his relative (D3W1) at about 07:00-7:30 PM for a function CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 38 and a get together. It is argued that accused Shekhar Singh Negi was also attending a pooja/function at the house of his colleague in the night of 12.05.2015, and he stayed there over night with his wife. It is argued that accused Bhaskar Rawat @ Golu was in the company of his friend (D2W1) in the night of 12.05.2015 and they were together till 11:30 PM on that night. It is submitted that the accused persons had not committed the murder of deceased Rajender and the family of the deceased have falsely implicated them in the present case as the brother of the deceased, namely Raju, was having certain personal rivalry with accused Shekhar Singh Negi, and thus, they implicated all the accused in the present case, as all the accused were friends of the deceased.
87. It is further argued that there is no other material witness to corroborate the allegations of the alleged offences against the accused persons, and in view of the testimony of the material witnesses, who have been sufficiently rebutted by the defence, the prosecution case has not been proved beyond reasonable doubts. Hence, it is argued that benefit of doubt be given to the accused persons. Accordingly, on the basis of these submissions, Ld. Counsel for the accused persons have prayed for the acquittal of the accused persons as the prosecution has failed to prove the allegations against the accused persons beyond all reasonable doubts.
88. Written submissions on behalf of each accused were also filed by their respective counsels alongwith certain authorities.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 39 Settled propositions of law
89. The case of the prosecution in the given facts and circumstances is based upon the circumstantial evidence.
90. It has been consistently laid down by several Superior Courts, time and again, that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (Reliance placed on Hukam Singh v. State of Rajasthan (AIR 1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316);
Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
91. In Bhagat Ram v. State of Punjab1 , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
1 AIR 1954 SC 621 CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 40
92. Reference is also made to a decision passed by Hon'ble Supreme Court in C. Chenga Reddy and Ors. v. State of A.P.2 , wherein it has been observed thus:
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
93. In Padala Veera Reddy v. State of A.P. and Ors.3 , it was laid down by Apex Court that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
94. In State of U.P. v. Ashok Kumar Srivastava, 4, it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the 2 1996 10 SCC 193 3 AIR 1990 SC 79 4 1992 Crl.LJ 1104 CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 41 circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
95. That, the rules specifically pertaining to the circumstantial evidence have been mentioned in a book "Wills' Circumstantial Evidence" (Chapter VI) written by Sir Alfred Wills. It has been mentioned in the said book that :
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".
96. It is the universal principle laid down by the Hon'ble Apex Court of India that there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by Hon'ble Supreme Court in various judgments as far back as in 1952.
97. It has been held by the Hon'ble Apex Court of India in case 'Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh',5 , wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully 5 AIR 1952 SC 343 CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 42 established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
98. It has also been held by the Hon'ble Apex Court of India in case 'Sharad Birdhichand Sarda v. State of Maharashtra'6. Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
99. These aspects were also highlighted in State of Rajasthan v. Rajaram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and in State of U.P. v.
6 AIR 1984 SC 1622.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 43 Ram Balak & Anr. [2008 (13) SCALE 541.]
100. Further, it is also imperative to discuss the law regarding the 'last seen' theory as enunciated by various authorities. In the case titled as 'Shyamal Ghosh v. State Of West Bengal'7, it was held by Hon'ble Supreme Court of India:
"50. Then, it is also contended and of course with some vehemence that where the prosecution is relying upon the last seen theory, it must essentially establish the time when the accused and deceased were last seen together as well as the time of the death of the deceased. If these two aspects are not established, the very application of the 'last seen theory' would be impermissible and would create a major dent in the case of the prosecution. In support of this contention, reliance is placed upon the judgment of this Court in the case of S.K. Yusuf v. State of West Bengal [(2011) 11 SCC 754].
51. Application of the 'last seen theory' requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. This Court in para 21 of Yusuf's case (supra) while referring to the case of Mohd. Azad @ Samin v. State of West Bengal [(2008) 15 SCC 449] and State through Central Bureau of Investigation v. Mahender Singh Dahiya [(2011) 3 SCC 109], held as under:-
"21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. (Vide Mohd. Azad v. State of W.B and State v. Mahender Singh Dahiya)"
52. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the Court to examine that where the last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of 7 AIR 2012 SC 3539 CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 44 the crime and the onus was on him to explain how the death occurred."
101. In yet another case titled as 'Nizam & Anr v. State Of Rajasthan'8, it was held by Hon'ble Supreme Court of India:
"14. ....Undoubtedly, "last seen theory" is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
15. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:-
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any 8 AIR 2015 SC 3430.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 45 explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218)" The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale
319."
102. In the back drop of the settled propositions of law as cited above, let us examine the facts and circumstances of the present case.
Findings and Observations of Court
103. In the present case, prosecution has charged the accused persons for committing the murder of deceased Rajender, in furtherance of a common intention of the accused persons. The accused persons have been indicted for commission of offence u/s 302/34 IPC.
104. The case of the prosecution is that on the fateful night of 12.05.2015, the accused persons called out the deceased from his home. The mother of the deceased was also present at their home, and the deceased came out and joined the accused persons. The accused persons were riding two motorcycles and on one motorcycle, accused Shekhar Singh Negi and Khem Singh Bisht @ Raju were traveling and the deceased had sat in between the said two accused persons on their motorcycle. Accused Bhaskar Rawat @ Golu was riding on a separate motorcycle. The mother of the deceased asked them as to where they were going, upon which they told them that they would return after a short ride. When the deceased did not return till 04:00 AM, the mother of the deceased went looking CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 46 for her son and she found a police official near Kartar Nagar Pulia, who informed her that she should go and search for her son in the hospital. The mother of the deceased found the dead body of her son in the hospital and identified him.
105. It is also the case of the prosecution that at around 12:01 AM (midnight), a call was received in the PS regarding quarrel and an injured near Lal Mandir, Nale ki Pulia, Kartar Nagar. When the police reached at the spot, they found the caller at the spot and one person was lying in an injured condition. The said injured was sent to the hospital, who was declared as "brought dead". The post-mortem of the dead body was conducted and the cause of death was 'shock as a result of ante-mortem head injury due to blunt force impact'. The police also found blood stained stone at the spot. One mobile phone and a sum of Rs. 125/- were recovered from the dead body.
106. After recording the statement of mother of the deceased and the caller, the police searched for the accused persons and they were arrested at the instance of secret informer. The accused persons gave their disclosure statements, wherein they stated that they had gone with the deceased to the spot of the incident, and while they were drinking and eating, the deceased started abusing them in filthy language, upon which a scuffle had taken place and in the said scuffle, they had hit the deceased with a stone in order to kill him, and in this manner, they had murdered the deceased. The police recovered the two motorcycles at the instance of accused Khem Singh Bisht @ Raju and Shekhar Singh Negi, and a piece of blood CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 47 stained stone at the instance of accused Khem Singh Bisht @ Raju. The police also prepared the identification memo of the spot of the incident at the instance of the accused persons.
107. The site plan was also prepared, and as per the site plan Ex. PW-14/B and the revised scaled site plan Ex. PW3/B, the spot of the incident was about 500 meters from the house of the deceased. The incident had taken place at a public spot on a pulia over a nala, and there are other houses adjacent to the spot. One piece of cement silli was recovered near the dead body and one piece of stone recovered at the instance of accused Khem Singh Bisht @ Raju, about 500 meters from the place where the dead body was found.
108. The prosecution examined three public witnesses, whose evidence recorded before this Court is as under:
109. PW-12 is the mother of the deceased, who is also a "last seen" witness. She had specifically deposed before the Court that on 12.05.2015, at about 10:00 PM, accused Shekhar Singh Negi and Khem Singh Bisht @ Raju came to her house on their motorcycle, and called out for her son i.e. deceased Rajender, and then, her son deceased Rajender went alongwith the said two accused persons on their motorcycle by informing PW-2 that he is going for a short ride with them. PW-12 also specifically deposed that accused Bhaskar Rawat @ Golu had also reached on his two wheeler immediately after the said two accused persons and they all had gone together on their motorcycles with the deceased son of PW-12. PW-12 correctly CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 48 identified all the three accused persons in the Court and specifically deposed that the said three persons had committed the murder of her son.
110. During the cross-examination of PW-12, specific questions were asked to her regarding any money transactions between her deceased son and accused persons, to which, PW-12 had vaguely replied that there was some money dispute between her deceased son and the accused persons, but she admitted that she had never seen any money transactions between them. She also admitted that her son had never taken any loan from any Bank or any person. Thus, the defence has argued before the Court that no motive could be assigned by the prosecution for the murder of her deceased son of PW12 namely Rajender.
111. PW-12 was also questioned regarding the time when she had last seen the accused persons and her deceased son together, to which she again replied that it was sleeping time. She could not specifically mention as to on what basis, she had mentioned the time of 10:00 PM. PW-12 had not seen her deceased son with the accused persons after the said time, and later when she started searching for her son at around 04:00 AM, she reached near Kartar Nagar, Pulia, where the police officials informed her that the body of her son had been taken to the hospital. It is clear that the testimony of PW-12 is only relevant to the extent of having seen the accused persons with the deceased few hours before the body of the deceased was found near Kartar Nagar, Pulia. She is not an eye witness to any injury being inflicted by the accused persons to her CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 49 deceased son, or to any killing of her son by the accused persons. She also could not assign any specific motive for which the accused persons would murder her son.
112. PW-13 is another "last seen" witness, who used to have a shop opposite to the house of deceased Rajender and the deceased was his nephew. He also deposed that he had last seen the accused persons taking the deceased on their motorcycle at about 10:00 PM on 12.05.2015. He also deposed that when he asked the accused persons, as to where they were going, they replied to him that they would return after roaming around. PW-13 deposed that the next morning at about 03:00- 04:00 AM when the police called him out from his house and took him to GTB hospital, he saw the dead body of his deceased nephew Rajender. He also specifically deposed that he believed that his nephew Rajender had ben killed by the accused persons. Evidently, PW-13 had also not seen the accused persons with the deceased after 10:00 PM, and he is also not an eye witness to the alleged murder of deceased Rajender. PW-13 also could not assign any specific motive for which the accused persons would murder the deceased Rajender.
113. It is clear for the testimony of both the above witnesses that they had only seen the accused persons taking deceased Rajender from his house, few hours before the dead body of deceased Rajender was found near Kartar Nagar, Pulia. As such, the testimony of PW-12 and PW13 need to be corroborated by other circumstancial evidence.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 50
114. PW-14 was an eye witness, who used to run parking near the spot i.e. Lal mandir, 4th Pusta, Kartar Nagar, Usmanpur, Delhi. He deposed that on 12.05.2015 at about 11:30 PM, when he was going to his house from the parking area, and he reached near nale ki pulia, Lal mandir, Kartar Nagar, he saw four boys were eating and drinking something while standing there. He further deposed that he reached his house, and while he was taking his meals, he suddenly heard the cries of "bachao bachao" from nale ki pulia side and when he saw from his house, he found that the said boys were pushing another boy and when he started going towards the spot, he saw that the boys had ran away from there on their scooty. He also deposed that when he reached there, public persons had also gathered at the spot and he found a boy in an injured condition. PW-14 was also the person who had called the police at the spot. PW-14 could not identify the accused persons and deposed before the Court that he had not seen the faces of the said boys when they were standing at the spot, due to night time.
115. Prosecution had proved a revised scaled site plan Ex. PW3/B, which shows that house no. J-141 belonging to one Yag Dutt is immediately in front of the spot of crime. Adjacent to the said house, there are two other houses i.e. H.NO. J- 1/120 E, belonging to one Maheswari Devi and H.NO. J-140, belonging to one Gopal Tayal. The site plan nowhere reflects the house of PW-14. The address stated by PW-14 on the record is H.NO. J-4/10, Gali NO.6, 41/2 Pusta, Kartar Nagar, CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 51 Delhi. It has nowhere been established on the record that the said house of PW-14 was at a distance from the spot from where the spot could be clearly visible. As per the deposition of PW-14, he had seen 4 boys at the spot and later from his house he saw those boys pushing another boy, who fell down in an injured condition. There is an apparent contradictions in the testimony of PW-14, as he could not specify as to how and from where he saw the said boys pushing and fighting with the boy who fell down injured.
116. During cross-examination, PW-14 mentioned that he had seen the boys from the distance of 15-20 ft. But, as per the site plan, it could not be established as to how PW-14 could have seen the spot or those boys from the said distance, as neither the parking area nor the house of PW-14 has been specified in the site plan. Moreover, there are other contradictions in the testimony of PW-14, as he deposed before the Court that the said boys had ran away on a scooty, while the prosecution had recovered two motorcycles at the instance of accused persons, on which they had taken the deceased on the night of the incident. Even, PW-12 and PW-13 had mentioned about two motorcycles on which the accused persons came and took deceased Rajender on the night of incident. Ld. APP for the State had also re-examined PW-14 on the said point, but PW- 14 remained firm on his deposition that he had seen two boys running on a scooty. Ld. APP for the State even questioned PW-14 as regards the number of the said boys, but PW-14 again specifically mentioned that he had never seen three boys running from the spot on two motorcycles, and he had never CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 52 made any such statement to the police during the invesigation. From the said contradictions pointed out in the testimony of PW-14, who is the sole eye witness of the incident, his deposition does not appear to be reliable and does not inspire the confidence of this Court.
117. It is also apparent from the record that the police has not recorded the statement of any other public witness or eye- witness at the spot, despite public persons being present at the spot. It is clear from the record that the spot of incident is a public place surrounded by residential houses and there is also continuous vehicular movement at the spot. The spot is also stated to be a parking area, even though the site plan Ex. PW3/B does not clearly specify any parking area at the spot. In these circumstances, there is a serious lapse on the part of IO in not recording any statement of public witnesses at the spot.
118. It is clear from the record that the accused persons were apprehended merely on the basis of suspicion, as PW-12 and PW-13 had last seen the accused persons with the deceased. The accused persons were arrested with the help of a secret informer, but they have all been apprehended from the area near the spot. As such, there had been no attempt by the accused persons to abscond if they had allegedly committed the crime in question.
119. Further, another glaring defect found in the invesigation is that the IO had not seized the mobile phone of any of the accused persons and had also not obtained any CDR/CAF of CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 53 their mobile phones. The said CDR/CAF, if had been obtained from the service provider, would have assisted in the invesigation to establish the exact location of the accused persons at the time of incident. The accused persons have taken plea of alibi before the Court, and they had examined the witnesses in support of that plea. Though, the said witnesses have only given an ocular record of the accused persons being present in their company on the night of the alleged incident, however, they could not bring any documentary proof in the nature of any photographs, etc. in support of the said fact. The employer of accused Shekhar Singh Negi, examined as D1W2, could not bring any attendance register or any documentary proof to show that accused Shekhar Singh Negi had attended his duties on 12.05.2015, 13.05.2015 and 14.05.2015. In fact, accused Shekhar Singh Negi had been arrested on 14.05.2015, and, thus, he could not have attended his duty on that day.
120. Also, D2W3 was working as Store Manager in a shop, where accused Bhaskar Rawat used to work as Airtel Grand Promoter. However, D2W3 also could not produce any record to show that accused Bhaskar Rawat had attended his duty on that day. The other defence witnesses examined by the accused persons are their near and dear ones, and their testimonies also does not inspire the confidence of this Court regarding the plea of alibi taken by the accused persons.
121. Thus, as the onus was upon the prosecution to establish the presence of the accused persons at the spot at the time of commission of murder of deceased Rajender, the said burden CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 54 has not been duly discharged. The mobile phone of accused persons was an essential piece of evidence, which when linked with the chain of other circumstancial evidence and with the fact that the accused persons were last seen with deceased Rajender prior to his murder on the day of incident, would have strengthened the prosecution case. However, the said chain has remained incomplete. Though, the defence led by the accused persons is not satisfactory, but they have introduced sufficient doubts in the prosecution case.
122. It is also apparent from the record that one piece of stone had been recovered at the instance of one of the accused person i.e. accused Khem Singh Bisht. The IO had also picked certain other concrete stones having blood stains on them, from the spot. The said pieces of stones were sent for FSL examination, and the FSL report Ex. PW29/A, only mentions human blood on a stone piece, pieces of stone and the concrete piece, but the said report mentions that the said exhibits were non reactive to the blood group of the blood found on them. Thus, the FSL report has also remained inconclusive as regards the blood of the victim/deceased found on the stone piece and other pieces of stone recovered from the spot.
123. The medical examination and post-mortem report of the deceased mentioned the cause of death as "shock as a result of ante-mortem head injury due to blunt force impact". The post- mortem report mentioned that the injury found on the deceased were sufficient in the ordinary course of nature to cause his CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 55 death. Specific questions were put to the concerned doctor from department of Forensic Medicine, who proved the post- mortem report Ex.PW18/A, regarding any possibility of the said injuries being caused due to fall from height, or by road traffic accident, but the said questions were replied in negative by said doctor. Even though, the injuries found on the person of the deceased could have been caused due to a hit by stone, but there is no categoric evidence that the deceased had been hit by the stone recovered from the spot or by any another blunt object. Moreover, there is also no link to establish that the accused persons had hit the deceased with any such blunt object on the day of alleged incident. Hence, the said link has also remained incomplete.
124. Further, as per the disclosure statements of the accused persons, the prosecution had developed a story that on the night of fateful incident, the accused persons and the deceased were drinking and eating near the spot i.e. Nale Ki pulia Kartar Nagar, Delhi. It is also stated in the disclosure that suddenly a quarrel had taken place between the accused persons and the deceased, upon which deceased started abusing the accused persons in filthy language. It is also stated by accused persons in their disclosure that a heated quarrel had taken place and the accused perons threatened the deceased that they would teach him a lesson. It is further stated in their disclosure that, thereafter, accused Bhaskar @ Gollu and Shekhar Singh Negi asked accused Khem Singh to pick a stone and hit the accused and, thereafter, the said accused had hit a heavy stone on the head of deceased Rajender, due to CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 56 which he fell down unconcious. The accused persons fled away from the spot and while fleeing away from the spot, they had thrown away the bottles of liquor in the adjacent nala.
125. On the basis of said disclosure, the IO had recovered one piece of stone at the instance of accused Khem Singh Bisht @ Raju. However, as observed previously, the said stone recovered at the instance of said accused could not be linked with the alleged crime of being used for hitting on the head of the deceased on the night of the incident, as the FSL result could not link the blood stains on the said stone with the blood of the deceased. Moreover, the said disclosure also does not inspire confidence as neither any alcohol bottles were recovered by the police during the invesigation, nor any alcohol content was found in the stomach of the deceased upon his post-mortem.
126. It is cleary evident from the entire material available on the record that apart from the testimony of last seen witnesses, there is no other circumstancial or direct evidence on the record to link the accused persons with the commission of alleged crime. There are also several loopholes and lacunaes in the prosecution case, which have remained unexplained. Neither the presence of accused presons at the spot at the time of commission of the offence could be proved on the record, nor any motive of the offence could be assigned by the prosecution or any of the material witnesses examined before the Court. The testimony of sole eye witness i.e. PW-14 is also of no relevance, as he has been rebutted at several points.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 57 He has also not identified the accused persons and has specifically stated before the Court that he had not seen the faces of the boys who were fighting at the spot on the night of the incident. There is also no other public witness joined by the IO during the invesigation.
127. The other witnesses examined by the prosecution are formal witnesses of the police and certain other independent witnesses such as Nodal Officer of the service provider of the mobile phones of the deceased and of PW-14. However, their testimony does not lend any support to the prosecution case in proving the guilt of the accused persons beyond all reasonable doubts.
128. As per settled propositions of law, a case based upon circumstancial evidence need to be carefully scrutinised and all the evidence brought forth by the prosecution should be so convincing and persuasive that it should lead to only one inference, that is, towards the guilt of the accused persons. Further, the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
129. It is also settled law that if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It is also well established in the judgment of 'Sharad Birdhichand Sarda v. State of CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur State v. Shekhar Singh & Ors. Page No. 58 Maharashtra'9, that while dealing with circumstantial evidence, onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea.
130. In the light of the said settled propositions of law, when examined in the given facts and circumstances, it is observed that in the present case, the prosecution has not been able to discharge the onus of proving the guilt of the accused persons beyond all reasonable doubts in committing murder of deceased Rajender on the night of 12.05.2015. Even if the defence could not lead any satisfactory evidence to substantiate the plea of alibi of the accused persons, the prosecution case itself has not been proved on its own legs.
131. In view of the aforesaid discussion and on the basis of entire material available on the record, I am of the considered opinion that the prosecution has not been able to prove that the accused persons have committed the murder of deceased Rajender. Accordingly, accused persons namely Shekhar Singh Negi, Bhaskar Rawat and Khem Singh Bisht are hereby acquitted for the offence punishable u/s 302/34 IPC.
132. File be consigned to record room after due compliance.
Announced in the (Ankita Lal)
open Court on this Addl. Sessions Judge
31st day of January 2024 (FTC),North-East District
Karkardooma Courts, Delhi
9. Supra.
CNR No. DLNE01-000300-2015 FIR No. 528/15 PS Usman Pur
State v. Shekhar Singh & Ors. Page No. 59