Delhi District Court
State vs Suraj @ Cocktail on 30 January, 2024
IN THE COURT OF MS. MANISHA KHURANA KAKKAR,
ADDITIONAL SESSIONS JUDGE (FTC) - 01 (SOUTH DISTRICT),
SAKET COURT, NEW DELHI
SC No. : 6456/2016
FIR No. : 639/2014
PS : Fatehpur Beri
U/s : 302/307 IPC
State Vs. : Suraj @ Cocktail
JUDGMENT
(a) Name of complainant : Sh. Mujeeb
(b) Name, parentage & : Suraj @ Cocktail
address of accused(s) S/o Sh. Roshan Lal Sharma
R/o House no. 88, Near Life Line
Medical Store, Sultanpur, New Delhi.
(c) Offence complained off : 302/307 IPC
(d) Plea of accused : Pleaded not guilty
(e) Final order : Convicted
(f) Date of such order : 30.01.2024
Date of Institution : 05.03.2015
Date of conclusion : 06.01.2024
of final arguments
Date of Judgment : 30.01.2024
FIR No. 639/14, PS Fatehpur Beri
State Vs. Suraj @ Cocktail
Page No.1 of 43
BRIEF FACTS :
1. It is the case of the prosecution that on 06.12.2014 at Khatana Market, Gurudwara wala Gali, T-Point, Sultanpur, accused Suraj @ Cocktail committed murder of deceased Akshay by causing injury on his chest with scissors. It is also alleged that accused also caused injuries on the collar bone of injured Mujid Rehman with scissors and attempted to commit his murder. Consequently, charge-sheet for the offence u/s 302/307 IPC was filed against him.
Charge:-
2. On the basis of material placed on record by the prosecution, charge was framed against the accused Suraj @ cocktail for the offence under Section u/s 302/307 IPC vide order dated 22.05.2015 passed by Ld. Predecessor, to which he pleaded not guilty and claim trial.
Prosecution Evidence :-
3. In order to bring home the guilt of accused, prosecution had examined 32 witnesses in the prosecution evidence i.e. PW1 Kapil, PW2 Satish Kumar, PW4 Dr. Nasir Subhan, PW6 ASI Jai Pal Singh, PW7 Ct. Pooran, PW8 Ct. Deepak, PW9 Mujeeb, PW10 Abhishek @ Bittoo, PW11 Pawan, PW13 Dr. Yogesh Kumar, PW14 Dr. Ram Gopal, PW15 Ct. Amit, PW16 ASI Kaushal, PW17 HC Mukesh, PW20 HC Ranbir, PW22 SI Parvesh Lamba, PW23 Dr. Asit Kumar Sikari, PW24 Insp. Mahesh Kumar, PW25 Dr. Neelagiri Suresh, FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.2 of 43 PW26 Dr. Sureddy Arvind, PW27 Dr. Lankey Nagarjuna, PW29 SI Surender Singh, PW30 Dr. Suraj Ohal, PW32 Insp. Ajay Pratap.
Summary of prosecution evidence :-
4. PW-9 Mujeeb:- Prosecution had also examined the eye witness/injured PW-9 Mujeeb. He deposed that he had been running a shop of Recharge of mobile phone. He further deposed that on 06.12.2014 at about 05-05.30pm, he had gone to get the mobile phone of his father repaired. He further deposed that when he was passing through a street at Sultanpur, he met his friend Akshay, who was standing outside his house. PW9 Mujeeb further deposed that he was on his bike and when he reached near the house of his friend i.e. Akshay, the petrol tank of his motorcycle got empty. He further testified that his friend Akshay(deceased) advised him to take the motorcycle of their another friend namely PW10 Abhishek Swami @ Bittoo, who lived near the house of deceased Akshay. He further testified that he alongwith deceased Akshay and PW10 Abhishek went to the petrol pump to get petrol and purchased petrol for Rs. 50.
He further deposed that he asked PW10 Abhishek that he would drive the motorcycle and sat behind him, while deceased Akshay was the last pillion rider. As per his testimony, while they were returning to the place where PW-9 Mujeeb had parked his motorcycle and they reached near Gurudwara wali Gali, they saw that crowd had gathered there.PW9 Mujeeb, therefore, slowed down the motorcycle. He FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.3 of 43 further testified that in the meanwhile, a boy namely Suraj came out of the crowd and attacked him with a sharp edged object on his right shoulder, due to which he sustained injuries on his shoulder. PW9 Mujeeb further stated that after he received injuries, he drove the motorcycle to a short distance and thereafter, accused Suraj attacked at deceased Akshay with the same sharp edged object on his body. As per the testimony of PW9 Mujeeb, they had covered a distance of about 10 paces, when he started suffering with pain due to shoulder injury and he requested his friend PW10 Abhishek @ Bitto to drive the motorcycle. He further deposed that he stopped the motorcycle and while they were changing their positions on the motorcycle, he saw that deceased Akshay was about to collapse and he also noticed blood spots on his shirt. He further testified that deceased Akshay became unconscious and fell down and he informed the brother of deceased Akshay that they were taking him to Dr. Subhan Clinic. PW9 Mujeeb further testified that with the help of public persons, deceased Akshay was put on his motorcycle and he alongwith PW10 Abhishek took him to the said clinic, from where he was advised to be taken to Safdarjung hospital, as he was serious. PW9 Mujeeb further testified that he went to his house and brought his car and they took deceased Akshay to Safdarjung hospital in his car. As per his testimony, Pawan i.e. brother of Akshay had also reached Subhan Clinic. He further testified that Akshay was declared as 'brought dead' at Safdarjung hospital. Police had also arrived at the said hospital and statement of the said witness was recorded at the spot FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.4 of 43 vide Ex. PW9/A. Site plan was also stated to have been prepared at his instance by the police.
5. PW-9 Mujeeb further deposed that he alongwith police officials had also gone in search of accused Suraj in official vehicle and when they reached at Bis Sutri Road, near Club drive Sultanpur, he noticed that accused Suraj was hiding himself behind the bushes. As per his testimony, on his pointing out, police apprehended accused Suraj. The said accused was correctly identified by the witness in the court. Although, the said witness stated that he was made to sign on some papers at the time of arrest of accused Suraj, however, he was not aware whether the said papers were arrest memo or not. He, however, identified his signatures on the arrest memo placed on record as Ex. PW8/A.
6. PW-9 Mujeeb further deposed that on the next day, he handed over his clothes to the police. The said witness was unable to recollect whether he had signed the seizure memo, however, he identified his signature on the seizure memo placed on record as Ex. PW9/B. He also identified the case property produced in the court i.e. clothes worn by him at the time of the incident, vide Ex. PW9/P1 to P4.
7. In his cross-examination, PW9 Mujeeb deposed that the house of deceased Akshay was at a distance of approx. 50 meters from the place where deceased Akshay was standing when he met him on the FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.5 of 43 date of the incident. He further deposed that he had parked his motorcycle at the place where he had met deceased Akshay, i.e. corner of the street. He further affirmed the suggestion that the place of incident does not fall on the way from the place where he had parked his motorcycle to the petrol pump. He further testified that he had brought the petrol in a plastic bottle, however, he was not aware about the dimensions of the bottle and the manufacturing company of the said bottle. He, however, also stated that he did not have any enmity with accused Suraj. He further stated that he knew the accused by his name and his face before the incident, however, he did not have any friendly terms with the accused. He further testified that there was one clinic which fell on the way from the place of the incident to Subhan Clinic, however, it was closed on that day. He further testified that deceased Akshay did not have any enmity with accused Suraj. PW9 Mujeeb, however, deposed that when deceased Akshay received injuries, he was driving the motorcycle and deceased Akshay was sitting behind while PW10 Abhishek was in the middle.
8. PW9 Mujeeb further testified that after the incident, his clothes were blood stained on the front right side of the collar. He, however, further stated that he did not see blood on the clothes of deceased Akshay. He also conceded that he could not see exactly the weapon with which he and deceased Akshay had received injuries. He, however, voluntarily stated that he could only see that it was a sharp FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.6 of 43 edged object. He further deposed that he came to know that deceased Akshay had also sustained injuries at a distance of 10 paces from the place of incident. As per his testimony, brother of deceased Akshay namely Pawan had dialed 100 number within 10 minutes of leaving to Subhan Clinic. As per his testimony, accused was arrested from Jungle area and there were farm houses around that place.
9. PW9 Mujeeb further denied the suggestion that he had received injuries in a quarrel with some other persons or during the quarrel between him, PW10 Abhishek and deceased Akshay. He denied the suggestion that he had not seen accused Suraj when deceased Akshay had received injuries.
10. PW9 Mujeeb was recalled u/s 311 CrPC on an application moved on behalf of the accused, vide order dated 19.12.2022. In his cross- examination conducted by Ld. Defence counsel (u/s 311 Cr.P.C) on 03.03.2023, PW9 Mujeeb affirmed the suggestion that the seat of Pulsar motorcycle was very slanting. He further affirmed the suggestion that when 3 people are riding on Pulsar motorcycle, the chest of last pillion rider closely touches the backside of the middle rider, due to the said slant. He further affirmed the suggestion that the chest of the person who is sitting in between the two persons and the back side of the driver touches closely. He also affirmed the suggestion that two days prior to the date of incident, he had fallen from his motorcycle and he received injury on his leg. He also FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.7 of 43 affirmed that he had also received injury on his right shoulder, collar bone due to the said fall from the motorcycle. He denied the suggestion that when he alongwith PW10 Abhishek @ Bittoo were going on motorcycle, they found the deceased near the road in an injured condition.
11. PW10 Abhishek @ Bittoo deposed that on 01.12.2014, he had come to Delhi during his vacations and on 06.12.2014 at about 05 PM, his friends i.e. deceased Akshay and PW9 Mujeeb had come to his house. He further deposed that they called him outside his house and when he came out, they told him that the petrol of their bike had exhausted and requested him to take them to petrol filling station on his motorcycle. He further testified that he alongwith deceased Akshay and PW9 Mujeeb went to the shop of PW9 Mujeeb on his motorcycle, from there they took an empty bottle to buy petrol, after which they went to the petrol pump. He further testified that after buying petrol, his friend PW9 Mujeeb drove the motorcycle, while PW10 Abhishek @ Bittoo sat in the middle and deceased Akshay was the last pillon rider. He further deposed that when they were returning to Sultanpur, his friend i.e. deceased Akshay told them that he wanted to buy something from the market and therefore, they went to the market, where crowd was gathered. He further deposed that after seeing the crowd, PW9 Mujeeb slowed down the motorcycle and in the meanwhile, accused Suraj, resident of Sultanpur, attacked on the right shoulder of PW9 Mujeeb, with some FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.8 of 43 sharp object in his hand. He further stated that accused also attacked deceased Akshay, due to which deceased Akshay got down from the motorcycle and he again sat on the same. As per his testimony, after covering a distance of about 10-15 paces, PW9 Mujeeb stopped the motorcycle, as he was suffering with pain due to shoulder injury and requested PW10 Abhishek @ Bittoo to drive the motorcycle. He further stated that when PW9 Mujeeb stopped the motorcycle, they noticed that deceased Akshay was falling from the same and appeared to be unconscious. As per his testimony, they also noticed blood stains on the front portion of his shirt, near the chest. Thereafter, on seeing the condition of deceased Akshay, PW9 Mujeeb called the brother of deceased Akshay and informed him that they were taking deceased Akshay to clinic of Dr. Subhan. He further testified that they immediately lifted deceased Akshay with the help of other public persons and took him to the said clinic on the said motorcycle, from where he was taken to Safdarjung hospital in the Santro car of PW9 Mujeeb. He also testified that the said injured Akshay was declared as 'brought dead' at the hospital. PW10 Abhishek @ Bittoo also correctly identified the said accused in the court.
12. In his cross-examination, PW10 Abhishek @ Bittoo affirmed that Subhan clinic falls on Mandi road from petrol pump and is at about 3-4 minutes walking distance from the petrol pump. He further deposed that Vijay clinic is also located on Mandi road. He, however, FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.9 of 43 stated that it was closed on that day. As per his testimony, the blood drops did not fall on his motorcycle because of the incident. He further testified that blood stains did not come on his shirt, when deceased Akshay was sitting behind him on the motorcycle. He voluntarily stated that deceased Akshay was bleeding from inside and only two blood spots were visible on his shirt. He, however, did not recollect the dimension of the plastic bottle, which they had taken from the shop of PW9 Mujeeb. As per his testimony, brother of deceased Akshay namely Pawan had asked him to take the deceased to Subhan Clinic. The said witness was, however, confronted with his statement recorded u/s 161 CrPC, where it was not specifically mentioned. He also stated that he did not have any enmity with accused Suraj. He further deposed that he was not aware about any enmity between PW9 Mujeeb and accused Suraj. He further stated that he did not know whether on the date of incident, some other public persons had also received injuries. As per his testimony, he had seen the hand of the assailant from the right side and it had some sharp edged article. He further testified that the entire incident took place within 5 seconds and he could not see the face of the assailant during the said 5 seconds. In response to the question as to on what basis he had deposed that the assailant was Suraj, PW10 Abhishek @ Bittoo deposed that the name of Suraj was taken by the crowd which had assembled there. He further deposed that he did not know who had dialed at 100 number. He, however, stated that neither him nor PW9 Mujeeb had informed the police at 100 number.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.10 of 43
13. PW10 Abhishek @ Bittoo denied the suggestion that there was a fight between deceased Akshay and PW9 Mujeeb or that in the said fight, deceased Akshay and PW9 Mujeeb had sustained injuries. He further denied the suggestion that he was under the influence of liquor or that he was deposing falsely.
14. The said witness was, however, re-examined by Ld. Addl. PP for State. During his re-examination conducted by Ld. Addl. PP for State on 03.09.2016, in response to a question put by Ld. Addl. PP for State as to whether he had seen accused Suraj when public persons from the crowd had stated that accused Suraj had attacked the deceased, PW10 Abhishek @ Bitto affirmed that he had seen accused Suraj in the crowd at that time. The said witness was, however, not cross-examined by Ld. Defence counsel on 03.09.2016 despite opportunity being given.
15. However, the said witness was recalled for cross-examination in pursuance to an application u/s 311 Cr.P.C moved on behalf of the accused, vide order dated 19.12.2022. In his cross-examination (conducted u/s 311 Cr.P.C) on 03.03.2023, PW10 Abhishek @ Bittoo affirmed the suggestion that the seat of Pulsar motorcycle was very slanting. He also affirmed the suggestion that when 3 people are riding on Pulsar motorcycle, the chest of the last pillion rider closely touches the backside of the middle rider, due to the said slant. He FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.11 of 43 also affirmed the suggestion that the chest of the person who is sitting in between the two persons and the back side of the driver, touch closely. He also affirmed the suggestion that on the date of the incident, deceased was sitting behind him, closely holding him by his hand on his waist and that his chest was completely touching his backside. He denied the suggestion that when he alongwith PW9 Mujeeb were going on a motorcycle, they found the deceased near the road, in an injured condition.
16. PW11 Pawan, brother of deceased Akshay deposed that on 06.12.2014, at about 06:30 PM, he was present at his house, when he received a call of PW9 Mujeeb (friend of his brother) on his mobile phone. He further deposed that PW9 Mujeeb informed him that his brother Akshay had sustained injuries on his chest and that they were taking him to the clinic of Dr. Subhan at Mandi Road. He further testified that on receiving the said information, he reached there and found his brother lying in an unconscious condition. As per his testimony, PW10 Abhishek @ Bittoo, other friend of his brother, was also present there. He further testified that PW10 Abhishek told him that the Doctor at Subhan clinic had advised him to take deceased Akshay to Safdarjung hospital as he was critical. As per his testimony, he alongwith PW9 Mujeeb and PW10 Abhishek took his brother to Safdarjung hospital, where he was declared dead. He, therefore, informed the police.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.12 of 43
17. In his cross-examination, PW11 Pawan deposed that he did not remember at what time his brother Akshay had left their house. He further stated that he did not hear from anybody that his brother had enmity with any person. He further stated that his brother Akshay never used to consume liquor. He further denied the suggestion that he had not gone to Subhan Clinic. He, however, did not remember the time when he had informed the police from his mobile phone. He further stated that PW9 Mujeeb had told him how his brother had received injury. He further deposed that PW10 Abhishek and PW9 Mujeeb had told him as to who had caused injury to his brother and how the said injury was caused, while they were taking his brother to the hospital in the car. He further deposed that he noticed blood stains on the cloth of PW9 Mujeeb, although he did not remember which portion of his clothes were blood stained. He denied the suggestion that his brother had consumed liquor or that under the influence of liquor, he had a quarreled with PW9 Mujeeb or with some other person at a different place and that in that quarrel, he had sustained injuries.
18. The prosecution had also examined PW14 Dr. Ram Gopal. He deposed that on 06.12.2014 at about 06 Pm, he was present at his clinic and 2-3 other patients were also present there. He further deposed that he was giving treatment to a patient and had applied bandage to the wounds. He further testified that after sometime, he noticed that his scissors were missing. He further stated that he did FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.13 of 43 not know who had lifted the said scissors as 2-3 patients including accused Suraj were present there. He further deposed that accused Suraj had not come for any treatment, however, he used to come to his clinic, being his neighbour. As per his testimony, after 10-15 minutes 2-3 persons came to him and handed over his scissors. He further testified that he did not make any inquiries from those persons as to how his scissors had come to their possession. He further deposed that after 2 days, police from PS Fatehpur beri came to him and made inquiries from him about his scissors and told him that it had been used in an incident of murder and asked him to hand over the same. He handed over the scissors to the police which was seized vide Ex. PW8/C.
19. The said witness was, however, cross-examined by Ld.Addl. PP for state as he was resiling from his previous statement given to the police. In his cross-examination, he denied the suggestion that he had told the police that he was alone in his clinic on 06.12.2014 at about 06:15 PM or that accused had come to his clinic while hurling abuses. He also denied that the accused was shouting that the police had made him BC of the area and he would not spare anyone. The said witness was, therefore, confronted with his previous statement given to the police where it was so recorded. He denied the suggestion that he had told the police that accused Suraj was under
the influence of liquor or that when he tried to pacify him, he did not listen to him or that he had picked up scissors from his clinic and FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.14 of 43 had gone outside. The said witness was again confronted with his previous statement given to the police, where it was so recorded.
20. PW14 Dr. Ram Gopal also denied the suggestion that he had told the police that accused had started hurling abuses to passerby outside his clinic or that in the meanwhile, 3 persons riding on a motorcycle came there and attacked the driver of the motorcycle with scissors or that thereafter, he also attacked on the chest of pillion rider. He also denied the suggestion that he had told the police that the said injured was taken to the hospital by his friends or that the scissors was snatched by the public persons from the hands of the accused, who had fled away from the spot. The said witness was again confronted with his previous statement given to the police where it was so recorded. The said witness also denied the suggestion that he had witnessed the incident or that he was deposing falsely in order to save the accused being the resident of the same locality.
21. In his cross-examination conducted by Ld defence counsel, PW14 Dr. Ram Gopal, affirmed the suggestion that there was no specific identification mark on the scissors. He, however, voluntarily stated that he had identified the scissors on the basis that the blade of the scissors were loose.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.15 of 43 Medical Evidence :
22. PW4 Dr. Nasir Subhan deposed that he had been running a clinic i.e. Subhan Medical center near Rajeev Gandhi farm, Andheria Mod, Mehrauli, New Delhi and on 06.12.2014 at about 06:30 PM, he was present at his clinic. He further testified that at that time, a person namely Mujeed Rehman, who was known to him, brought an injured boy namely Akshay to his clinic. He further deposed that he examined the said injured person and that the said injured had an injury on his chest. As per his testimony, the condition of the said injured was serious and he was referred to Safdarjung hospital. He further stated that on his instructions, one of his staff members informed the police.
23. In his cross-examination, PW4 Dr. Nasir Subhan deposed that he had not told the police that the patient was brought dead to his clinic. He was confronted with his statement Ex. PW4/DA, where it was so recorded. He denied the fact that the patient was brought dead to his clinic.
24. PW13 Dr. Yogesh Kumar who had examined deceased Akshay on 06.12.2014 in casualty of Safdarjung hospital was also examined by the prosecution. He placed on record MLC dated 06.12.2014 of deceased Akshay prepared by Dr. Lankey Nagarjuna vide Ex. PW13/A and as per the same he was declared "brought dead" and his body was sent for postmortem for its examination.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.16 of 43
25. In his cross-examination, PW13 Dr. Yogesh Gautam deposed that he had seen the wound of the patient. He further stated that the lacerated wound may or may not be caused by blunt object. In response to a question put by Ld. Defence counsel as to what would be the nature of injury, if a sharp edged object or weapon was used, the said witness stated that the nature of injury would depend on the force of injury. He voluntarily stated that in the instant case, it was punctured because it was a stab wound. He, however, affirmed the suggestion that as per the said MLC, the nature of injury was neither stated to be "incise" or "punctured" wound. He further affirmed the suggestion that as per the MLC, the nature of wound was described as 'clean lacerated wound'.
26. PW23 Dr. Asit Kumar Sikari was also examined by the prosecution.
He deposed that on 07.12.2014, body of one boy namely Akshay, aged about 17 years was brought for postmortem examination. He further deposed that on external examination, dried blood stains were present over upper part of chest in the midline. He further testified that a punctured lacerated wound of size 0.8 x 0.8 cm with contused margin was present over upper part of the chest near the midline and a brownish abrasion of size 4.5 cm x 0.1 cm was running downward from the aforementioned wound. He further testified that multiple lacerations of size 5x2 cm with exposed bone over medical aspect of the great toe of size 1.5 x 1 cm with exposed bone over medial aspect of 2nd toe and of size 0.8 x 0.5 cm over the medial aspect of 3 rd FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.17 of 43 toe of left foot with flap formation and no vital reaction. He, however, deposed that the cause of death in this case was Myocardial insufficiency as a consequent to Cardiac Temponade, caused by blunt edged pointed weapon. He deposed that 'injury no. 1 was antemortem and sufficient to cause death in ordinary course of nature'. He prepared the detailed Postmortem report no. 1561/14 vide Ex. PW23/A.
27. In his cross-examination conducted by Ld defence counsel, PW23 Dr. Asit Kumar Sikari testified that injury no. 2 as mentioned in the postmortem report could be due to dragging over rough surface. He further testified that in the instant case, the injury mentioned as punctured wound in the postmortem report was not caused by a sharp edged weapon as the margins were contused. He affirmed that lacerated wound could be caused due to fall on a blunt object. He further testified that the weapon had entered downward and backward in relation to the body of deceased. On specific question being put by the court that whether puncture wound injuries as mentioned in the postmortem report could be possibly inflicted on the victim sitting as the last pillion rider on a moving motorcycle ? In response to the said question, he affirmed that the same were possible if the weapon of offence had a pointed end. He further testified that the first injury i.e. the puncture wound was sustained just before the death of deceased while the second injury was sustained after the first injury. He denied the suggestion that the FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.18 of 43 postmortem report prepared by him was not correct or that it was not as per the medico legal register.
28. PW25 Dr. Neelagiri Suresh was also examined by the prosecution.
He deposed that on 06.12.2014 he medically examined the injured Rehman vide MLC No. 255301 i.e. Ex. PW25/A who was brought to the hospital by HC Mukesh Kumar. He further deposed that on examination, it was found that injured had sustained mild abrasion, 0.5 cm over right collar bone.
29. In his cross-examination conducted by Ld defence counsel, PW25 Neelagiri Suresh deposed that he did not ask the injured as to how he had sustained the said injuries. He, voluntarily, stated that the injured was brought by a police official. He affirmed that except a mild abrasion, there was no other injury and that there was no sign of any bleeding or swelling around the injury. He denied the suggestion that injury no. 1 mentioned in the MLC could be possible due to nail scratching. He further affirmed that this kind of injury could be caused due to fall on rough surface.
30. PW26 Dr. Sureddy Aravind was also examined by the prosecution.
He deposed that on 18.02.2015, he had given his opinion regarding nature of injury in MLC no. 255301 of injured Rehman as 'simple' vide his opinion/report i.e. Ex. PW26/A. FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.19 of 43
31. PW27 Dr. Lankey Nagarjuna was examined by the prosecution. He deposed that on 06.12.2014, patient Akshay was brought at Casualty by his friend Rehman. He further deposed that on examination he found that pulse was not recordable, heart sound was not heard, Pupils were bilateral. The MLC prepared by him was Ex. PW13/A.
32. In his cross-examination he affirmed that over the MLC the name and address of the deceased was not in his handwriting and was in the handwriting of someone else. He further affirmed that the previous history of the injured/deceased was not mentioned by him.
33. PW30 Dr. Suraj Ohal was examined by the prosecution. He deposed that on 24.06.2016 an application was submitted by Insp. Ajay Pratap, PS Fatehpur Beri, New Delhi for subsequent opinion regarding the deceased Akshay. However, the postmortem of the body of deceased was conducted by PW23 Dr. Asit Kumar Sikari. He further deposed that PW23 Dr. Asit Kumar Sikari had left the hospital so the same was marked to him on 24.06.2016. He further testified that after perusal of the postmortem report, alleged weapon and inquest papers, he had given his considered opinion that Injury no. 1 mentioned in the postmortem report no. 1561/14 was caused by pointed object/weapon and could be possible by alleged weapon. He further testified that injury no. 2 was caused by rough surface. The subsequent opinion prepared by him was Mark PW30/A. FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.20 of 43 Evidence of Investigating Officers
34. PW-22 SI Parvesh Lamba:- Prosecution had also examined SI Parvesh Lamba as PW-22. He deposed in his testimony that on 06.12.2014, he was posted at PS-Fatehpur Beri and on the said date, he was on emergency duty from 08.00am to 08.00pm. He further stated that one DD no. 33-A was assigned to him and he alongwith HC Mukesh reached at Shubham Hospital near Rajeev Gandhi Farm, Andheria Mod. He further deposed that on reaching there, one Dr. Nasir Subhan met them and informed that one injured Akshay had been brought to the hospital by his friend Muzibar Rehman and Bittu. He further deposed that the condition of injured was serious therefore, he was referred to Safdarjujng Hospital. He further stated that thereafter, he alongwith HC Mukesh reached at Safdarjung Hospital and on reaching there, he collected MLC of deceased Akshay who was declared dead. He further testified that one (PW9) Muzibar Rehman, who was friend of deceased Akshay, met them in the hospital. He further stated that he made inquiry from him who had also sustained injuries on his right collar bone. He was got medically examined. He further stated that on inquiry from Muzibar Rehman, he came to know that the incident had taken place at Khatana Market near Gurudwara Road, Sultanpur. He further deposed that after the medical examination of Muzibar Rehman, he alongwith (PW9) Muzibar Rehman and HC Mukesh reached at the spot. He recorded statement of complainant/PW9 Muzibar Rehman.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.21 of 43 He further stated that on the said statement, he prepared rukka vide Ex. PW22/A and it was handed over to HC Mukesh for registration of FIR. He further stated that a pair of slippers of black and red colour make Nike which were lying at the spot were lifted. Thereafter, he alongwith complainant Muzibar Rehman , HC Mukesh, Ct. Deepak and IO left the spot in search of the accused Suraj @ Cocktail who was named by the complainant in his complaint. He further stated that when they reached at 20 Sutri Colony Road near Club Drive, they apprehended the accused Suraj @ Cocktail at the instance of complainant. He further stated that accused was arrested vide arrest memo already Ex. PW8/A.
35. PW22 SI Parvesh Lamba further stated that he prepared inquest papers for the postmortem and also filled up form no. 25, 35 (1) (b) vide Ex. PW22/D. He further testified that after the postmortem, the doctor handed over the exhibits pertaining to this case to HC Mukesh which were seized by him vide seizure memo already Ex. PW17/A. He further deposed that at the same time, complainant Muzibar Rehman also arrived in the police station and handed over his clothes worn by him at the time of incident, to the IO. Those clothes i.e. one sweater (having design of purple grey and white stripes), one shirt (having red and blue check print), one T-shirt of black colour and one vest of white colour were kept in a parcel and seized vide seizure memo already Ex. PW9/B. FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.22 of 43
36. During his cross examination, PW22 SI Parvesh Lamba admitted the suggestion that Ex. PW22/B slipper does not bear the name of any person or the deceased. He further admitted that accused was not arrested from the spot. He denied the suggestion that accused was lifted from his house or that they had cooked up a story that accused was apprehended from 20 Sutri Road near Club Drive. He further testified that he saw the clothes of injured Mujeeb and he noticed that there were cut marks. He admitted that he noticed injuries on the person of deceased on his chest as mentioned by him in column no. 10 and 11 in Ex. PW22/D. He further stated that he did not remember whether any blood stains were present on the backside of the clothes of PW9 Mujeeb. He denied the suggestion that injured PW9 Mujeeb, deceased Akshay and Abhishek had consumed liquor prior to the incident. He further denied the suggestion that under the influence of liquor, they had quarreled with each other and in the said quarrel PW9 Mujeeb and deceased Akshay had sustained injuries. He further denied the suggestion that PW9 Mujeeb was not present at the spot or that his statement was recorded later on to implicate the accused in the present case. He further denied the suggestion that accused had not caused injuries to injured PW9 Mujeeb and deceased Akshay.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.23 of 43
37. PW-32 Inspector Ajay Pratap (IO):- Prosecution had also examined PW32 Inspector Ajay Pratap. He had deposed in his testimony that on 06.12.2014, further investigation of this case was entrusted to him. He further stated that he was at the spot at Gurudwara Road near Khatana Market, Sultanpur Colony, New Delhi and HC Mukesh had handed over to him, the original rukka and copy of FIR to him. He deposed that he examined public witness Sh. Abhishek Swami @ Bittoo and recorded his statement. Thereafter, he prepared the site plan at the instance of complainant Mujeeb Rehman which is Ex. PW32/A.
38. PW32 Insp. Ajay Pratap further stated that he alongwith complainant searched for accused, and during their search, they reached at India Club Drive, 20 Sutri Road, and on the insistence of the complainant, accused Suraj @ Cocktail was apprehended. He further testified that the clothes worn by the accused were sealed and seized vide memo Ex. PW32/B. His disclosure statement was recorded which was exhibited as Ex. PW8/B. He further stated that in pursuance to the disclosure statement of the accused, they also went to the clinic of Dr. Ram Gopal which was situated near the spot, however, the same was found closed. He further testified that the accused had disclosed that the weapon of offence (i.e. scissor) was taken by him from the clinic of said doctor and it was also disclosed that after the incident, the same was snatched from the possession of the accused by public persons and handed over to Dr. Ram Gopal. He further testified that FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.24 of 43 on the next day i.e. 08.12.2014, the accused was taken out from the lock up and he was taken to the shop of Dr. Ram Gopal at Khatana Market near the spot, with the help of other staff. He further stated that Dr. Ram Gopal produced one scissor which was also identified by the accused which was stated to be used in the incident. He prepared the scaled sketch of the scissor vide Ex. PW8/D and was seized vide seizure memo Ex. PW8/C.
39. During further investigation, PW32 Insp. Ajay Pratap collected the postmortem report and the exhibits were sent to FSL Rohini, Delhi through Ct. Amit and CFSL Lodhi Colony, New Delhi through Ct. Randhir vide road certificate.
40. During cross examination of the said witness, PW32 Insp. Ajay Pratap stated that when he reached at the spot, PW9 Mujeeb was present. However, no independent public witness were present. He further stated that the site plan was prepared at the instance of PW9 Mujeeb. He further stated that he did not lift any exhibits from the place where the dead body was lying as there were no blood stains on the ground. As per his testimony, he did not observe any blood at the spot. He further stated that Shashi Clinic was shown at point C in the site plan Ex. PW32/A. FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.25 of 43
41. He further stated in his cross examination that he did not remember the exact date on which the weapon of offence i.e. scissor were sent to FMT, AIIMS Hospital, New Delhi. He further stated that the said scissor was handed over to him by Dr. Ram Gopal. He, however, did not know whether the scissor was in possession of somebody else before Dr. Ram Gopal. He denied the suggestion that the scissor was already tampered before the same was handed over to Dr. Ram Gopal. He further denied the suggestion that accused had never lifted the scissor from the shop of Dr. Ram Gopal or that he never used it to inflict any injury upon the deceased.
42. During cross examination, he further denied the suggestion that there was no blood stains on the clothes of PW9 Mujib . He further denied that complainant PW9 Mujeeb, PW10 Abhishek and deceased were not on the bike at the time of incident. He further denied that scissor was falsely planted on him or that he was falsely implicated in this case.
43. PW6 ASI Jai Pal Singh, PW7 Ct. Pooran, PW8 Ct. Deepak, PW15 Ct. Amit, PW16 ASI Kaushal, PW17 HC Mukesh, PW20 HC Ranbir, PW24 Insp. Mahesh Kumar, PW29 SI Surender Singh also supported the case of the prosecution and deposed on the same lines as the aforesaid police witnesses.
44. PW2 Kapil and PW2 Satish Kumar did not support the case of the prosecution. However, the testimonies of the said witnesses were not relevant to prove the fact in issue.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.26 of 43
45. FSL report dated 12.10.2015 was placed on record vide Ex. PW28/A and Ex. PW28/B. CFSL report dated 04.05.2016, was placed on record vide Ex. PW31/A. FSL result dated 28.04.2015 i.e. Ex. PW33/A.
46. DD No. 33A, DD No. 42B, DD No. 16C were placed on record vide Ex. PW16/A, PW16/B, PW16/C. FIR was placed on record Ex. PW16/E alongwith endorsement on the rukka vide Ex. PW16/F. PCR form was placed on record vide Ex. PW18/A and PW19/A. RC No. 10/21/15 regarding sending of exhibits to CFSL, Lodhi Colony, was placed on record as Ex.PW20/A.
47. Photographs of the place of incident alongwith negatives were placed on record vide Ex. PW3/A1 to A14 and PW3/B1 to B14. Photocopy of relevant entries made in register no. 19 regarding deposition of exhibits in Maalkhana, CFSL, CBI, Lodhi Colony, FSL Rohini vide entry no. 1113/14 were placed on record as Ex. PW5/A, PW5/B. Relevant entries vide serial no. 1114/14 regarding deposition of case property at CFSL, CBI, Lodhi Colony was placed on record as Ex. PW5/C. Relevant entries in register no. 19 regarding registration of the property at CFSL, CBI, Lodhi Colony vide RC No. 10/21/15 and 15/21/15 were placed on record as Ex. PW5/D and PW5/E respectively.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.27 of 43
48. Scaled site plan of the place of incident was placed on record as Ex.
PW24/A.
49. Thereafter, Prosecution Evidence was closed vide order dated 03.03.2023.
Defence Evidence :
50. Statement of accused was recorded u/s 313 Cr.P.C. vide order dated 06.10.2023 whereby the accused stated that he does not want to lead any evidence in defence. Thereafter, defence evidence was closed vide order dated 06.10.2023.
Appreciation of Evidence and Findings :
51. It is the case of the prosecution that on 06.12.2014, at Khatana Market, Gurudwara wali Gali, T-point, Sultanpur, accused Suraj @ Cocktail committed murder of deceased Akshay by inflicting injuries on his chest with scissors and that he also caused injury on the collar bone of injured Mujeeb with scissors. In order to prove the same, the prosecution had examined the injured i.e. Mujeeb as PW9. During his testimony, PW9 Mujeeb deposed that on the day of incident at about 5-5.30pm, he had gone to Sultanpur to get the mobile phone of his father repaired and he was riding his bike at that time. He testified that when he was passing through a street at Sultanpur, he met his friend Akshay who was standing outside his house and when FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.28 of 43 he reached near the house of deceased Akshay, petrol in his motorcycle got exhausted. Therefore, on the advice of his friend Akshay, they went to the house of their other friend i.e. PW10 Abhisek Swami @ Bitoo. He further testified that he alongwith deceased Akshay reached at the house of PW10 Abhishek and all three of them went to the petrol pump to get the petrol, from where they purchased petrol of Rs. 50/-. He further testified that PW9 Mujeeb drove the motorcycle and PW10 Abhishek sat behind him and deceased Akshay was sitting as the last pillion rider. As per his testimony, when they were returning to the place where he had parked his motorcycle and reached near Gurudwara Wali gali, they saw that crowd had gathered there, therefore, he slowed down the motorcycle. He further testified that accused Suraj came out of the said crowd and attacked him with a sharp edged object on his right shoulder and he received injuries on the said shoulder and when he drove the motorcycle to a short distance, the said accused also attacked Akshay with the same sharp weapon on his body, due to which, he also sustained injuries.
52.Further, the said testimony of PW9 Mujeeb is also corroborated by the testimony of PW10 Abhishek Swami @ Bittoo. He also testified on the same lines as the aforesaid witness. He, however, stated that accused Suraj first attacked on the right shoulder of PW9 Mujeeb with some sharp object and thereafter, he also attacked deceased Akshay, due to which, deceased Akshay got down from the FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.29 of 43 motorcycle and he immediately again sat on the motorcycle. Ld. counsel for the accused persons had tried to assail the case of the prosecution on the ground that nothing had been brought on record to corroborate the fact that deceased Akshay had left his house on the day of the incident or that the said three friends i.e. deceased Akshay, PW9 Mujeeb and PW10 Abhishek Swami @ Bitoo had visited the petrol pump to buy petrol. Ld. counsel for the accused persons had further argued that no witness was joined by the IO to prove the said facts and no CCTV footage was collected by the IO to substantiate the fact that all three of them had visited the petrol pump. Ld. counsel for the accused persons had also argued that motorcycle of PW9 Mujeeb was not checked by the IO to establish that it had run out of fuel.
53. Be that as it may, the fact in issue in the present matter is whether accused Suraj had attacked deceased Akshay and had caused his death and whether he had attacked PW9 Mujeeb on the day of the incident to cause injuries to him which could have resulted in his death. Therefore, the fact whether PW9 Mujeeb and PW10 Abhishek Swami @ Bitto alongwith deceased Akshay had gone to the petrol pump or not is not relevant to the fact and issue. The fact that they were present at the place of occurrence is relevant to the fact and issue and their presence is duly proved and corroborated by their testimonies, which are coherent and consistent with each other.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.30 of 43
54.Perusal of the testimonies of PW9 Mujeeb as well as PW10 Abhishek Swami @ Bittoo shows that both the said witnesses have deposed regarding the fact that all three of them had gone to the petrol pump to buy the petrol and thereafter, when they reached in the market at Sultanpur, they saw that crowd had gathered there and suddenly, accused Suraj attacked PW9 Mujeeb as well as deceased Akshay. Both the said witnesses have deposed identically that PW10 was sitting in the middle while deceased Akshay was the last pillion rider and the motorcycle was being driven by PW9 Mujeeb. PW10 Abhishek Swami @ Bittoo had also similarly deposed as PW9 Mujeeb that first, accused Suraj attacked on the right shoulder of PW9 Mujeeb with some sharp object in his hand and thereafter, he also attacked deceased Akshay.
55. Both the said witnesses had deposed that they saw deceased Akshay had fallen down from the motorcycle and he appeared to be unconscious and they also noticed blood stains on the front portion of his shirt near the chest. Thereafter, as per the testimonies of the said witnesses, they lifted deceased Akshay and took them to clinic of Dr. Subhan Nasir and brother of deceased namely Pawan was also informed that injured Akshay was being taken to the said clinic.
56.The conduct of the witnesses PW9 Mujeeb as well as PW10 Abhishek Swami @ Bittoo in taking the injured Akshay to Dr. Subhan clinic is relevant u/s 8 of the Indian Evidence Act, 1872 FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.31 of 43 and the fact that they immediately informed the brother of the deceased i.e. PW11 Pawan is also relevant as a subsequent conduct of the witnesses just after the alleged incident which gives credence to their respective testimonies. Thus, whether or not, the said witnesses had gone to the petrol pump is irrelevant and infact the fact that deceased was taken to a clinic immediately after the incident takes precedence over the said factum of taking petrol from the petrol pump.
57.The factum of presence of PW9 Mujeeb, PW10 Abhishek and deceased Akshay is, infact, duly corroborated by the testimony of Dr. Nasir Subhan who was also examined as PW4 as well as by the testimony of brother of deceased i.e. PW11 Pawan by the prosecution.
58.PW4 Dr. Nasir Subhan had deposed that on 06.12.2014, at about 06.30pm, when he was present at his clinic, PW9 Mujeeb had produced deceased Akshay in the clinic and he had a chest injury and was in critical condition. PW4 Dr. Nasir Subhan had also corroborated the fact that the said deceased was referred by him to Safdarjung Hospital. He infact, also stated that on his instructions, one of the staff member had informed the police.
59.As afore stated, the testimony of aforesaid witnesses is also corroborated by the testimony of PW11 Pawan i.e. the brother of the FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.32 of 43 deceased, who had also categorically deposed that at about 06.30pm , he received a call from PW9 Mujeeb who informed him that his brother had sustained injuries on his chest and was being taken to the clinic of Dr. Nasir Subhan at Mandi Road. He also testified that when he reached at the said clinic , he found his brother in an unconscious condition.
60. Thus, there is no reason to disbelieve the presence of the aforesaid eye witnesses at the spot of occurrence.
61. Ld. counsel for the accused persons had also tried to assail the case of the prosecution on the ground that PW14 Dr. Ram Gopal had not supported the case of the prosecution and the fact that the alleged weapon of offence, i.e. scissors, were taken from the clinic of the Dr. Ram Gopal had not been corroborated or proved by the prosecution. Be that as it may, perusal of the testimony of PW14 Dr. Ram Gopal shows that on 06.12.2014 at about 06.00pm, he was present at his clinic at Khatana Market, Sultanpur and accused Suraj was already present there being his neighbour. As per his testimony, accused Suraj had not come there for any treatment, however, he used to visit his clinic regularly being his neighbour. He had also deposed that he was applying bandages to some patient and after some time he noticed that his scissor was missing and after 10-15 minutes, it was handed over to him by some person.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.33 of 43
62. However, PW14 Dr. Ram Gopal had not entirely supported the case of the prosecution and had turned hostile. He, infact, denied the suggestion given by Ld. Addl. PP that on the day of incident, accused had come to his clinic while hurling abuses or that he was shouting that police had made him BC of the area and he would not spare anyone. Thus, the said witness had not supported the case of the prosecution in respect of the said fact, however the fact that the witness was already known to accused being his neighbour cannot be lost sight of and it is quite probable that the said witness was won over by the accused and had therefore, not deposed regarding the aforesaid fact during his testimony.
63. Be that as it may, although the fact that accused had picked up the scissors from his clinic was not corroborated by the said witnesses. However, the fact that the scissors had gone missing and his clinic was located at Khatana Market, Sultanpur, where accused was admittedly present at the time of the incident cannot be overlooked. It is well settled that even if a witness has turned hostile, the entire testimony of the said witness cannot be thwarted in toto and the principle 'Falsus in uno falsus in omnibus' is not applicable in Indian Law, therefore the testimony of the said witness to the extent it proves the presence of the accused at the spot of occurrence as well as missing of scissors from his clinic is relevant to prove the fact in issue.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.34 of 43 Medical Evidence:-
64.The testimony of the aforesaid eye witnesses is also corroborated by the medical evidence led by the prosecution. Infact, perusal of the MLC of deceased Akshay dated 06.12.2024 i.e. placed on record as Ex. PW13/A issued by the Safdarjung Hospital shows that he was brought to casuality at 07.45pm by his friend Rehman (PW9) and as per the said MLC, there was injury of 2cm present on his body, however he was declared clinically dead at 07.50pm.
65.Infact, perusal of the postmortem report of deceased Akshay dated 07.12.2014 i.e. Ex. PW23/A shows that one of injuries present on the body of the deceased is mentioned as 'A punctured lacerated wound of size 0.8x0.8cm with contused margin is present over upper part of his chest near the midline and brownish abrasion of size 4.5cmx0.1cm is running longitudinally downwards of aforesaid wounds'.
66.Although, from the said injury, it appears that the external injury on his body i.e. the punctured lacerated wound was less in dimension i.e. measuring only 0.8 x0.8cm, however, there was also abrasion which was running downwards from the said wound and there was internal injury from the said wound which was also mentioned as follows:-
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.35 of 43 'internal path of the wound is directed downward and backward with hematoma into the pectoral muscle plane underlying the wound, an irregular shaped of fracture of cartilage of sterno-manubrial junction over an area of 2.4x0.5cm in the midline, hematoma over the anterior mediastinum, a horizontal wound of size 0.5x0.2cm over the wall of ascending aorta, 2cm above its origin, with a horizontal tear of size 0.9cm over the intima of the aorta, collection of blood between the covering of aorta and aortic wall itself from the origin of the aorta to the descending thoracic aorta and, collection of clotted and fluid blood of about 500ml into the pericardial sac. Depth of the wound is about 4.7cm'.
67.Thus, from the said opinion of the examining doctor, it is apparent that the wound was deep which was about 4.7 cm.
68. Ld. counsel for the accused had argued that even though, as per the said PM report, as a result of the said injuries, aorta received horizontal tear and aorta being the largest artery of the body, carrying blood from the heart to the circulatory system, a tear to the same would result in massive bleeding. Ld defence counsel had, thus, vehementaly argued that lack of excessive bleeding casts a serious doubt on the case of the prosecution. It has been further argued on behalf of the accused that PW3 Ct. Sandeep, who had taken photographs of the spot of occurrence, had deposed that he did not notice any blood lying on the spot and it was thus, argued that the said fact also demolishes the case of the prosecution.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.36 of 43
69. Be that as it may, as aforementioned as per the PM report, there was collection of blood between the covering of aorta and aortic wall itself and thus, it was apparent from the said PM report that there was internal bleeding instead of external bleeding resultant from the said punctured lacerated wound. Infact, the external injury was small and it was only about 0.8x0.8cm and thus, there was minimal external injury. Even otherwise, as per the case of the prosecution the weapon of offence was scissors and consequently, the injury that was caused would cover very large area and infact, the nature of injury is largely dependent upon the force with which the injury was caused. Therefore, there is no merit in the said contention raised by the Ld. Defence counsel. The said argument is infact, misconceived.
70.In fact, as per the subsequent opinion in respect of PM report placed on record vide Ex. PW30/A. injury no. 1 mentioned in the PM Report could have been caused by a pointed object/weapon and same could also be possible by the alleged weapon. Thus, as per the said medical report as well, the injury suffered by the deceased could have been caused by the scissors which was stated to be alleged weapon of offence.
71.Moreover, as per the report dated 12.10.2015 (placed on record Ex. PW28/A), DNA profile generated from the sweater of complainant Mujeeb, was found to be consistent with the DNA profile generated from the clothes of the deceased. Thus, from the said report placed FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.37 of 43 on record it is apparent, there was bleeding from the injuries sustained by the deceased, due to which, the clothes of PW9 Mujeeb were also stained with the blood of deceased. Thus, there is cogent evidence placed on record by the prosecution to prove that there was bleeding from the injuries of the deceased.
72. As per the MLC of PW9 Mujeeb placed on record as Ex. PW25/A, he had suffered a mild abrasion of 0.5cm at his right collar bone and there was no other external injury. The said injury was opined to be 'simple' in nature. Thus, the said MLC of PW9 Mujeeb also corroborates his testimony that he had sustained injury on his right collar bone on the date and time of the incident . The said MLC was prepared at about 08.36pm on 06.12.2014 and therefore , there was no considerable gap between the alleged time of incident and the preparation of the said MLC.
Recovery of Scissors/alleged weapon of offence:-
73. Perusal of the testimony of the investigating officer i.e. PW32 Inspector Ajay Pratap Singh shows that he had specifically deposed that pursuant to the disclosure statement of accused placed on record as Ex. PW8/B, he went to the clinic of PW14 Dr. Ram Gopal which was situated near the spot, however, it was found closed. Thereafter, at the instance of the accused, scissors were recovered from the said clinic of the said doctor and it was also disclosed by the accused that after the incident, the same was snatched from the possession of the accused by a public person and was handed over to Dr. Ram Gopal.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.38 of 43 Infact, PW14 Dr. Ram Gopal had also deposed to the effect that he had found that the said scissors was missing and thereafter, it was returned to him by some public persons. He had infact, also stated that he had sterilized the said scissors. Thus, naturally, no forensic evidence could have been taken from the said scissors. However, dehors the said fact that the said scissors was sterilized, the fact that the accused had taken the police officials to the clinic of Dr. Ram Gopal and had got recovered the weapon of offence i.e. scissors is relevant under section 27 of Indian Evidence Act, 1872 as the fact that he had taken those said scissors from the clinic of the said doctor was in his special knowledge. Therefore, from the said disclosure statement as well as the said recovery of weapon of offence, the fact that the said weapon of offence was used by the accused stand duly proved by the prosecution.
Dr. Nasir Subhan Clinic:-
74. Ld. counsel for accused had also argued that PW9 Mujeeb and PW10 Abhishek @ Bittoo allegedly chose to take deceased Akshay to Dr. Subhan clinic, although there were other clinics in between the place of occurrence and Dr. Subhan's clinic. Although, the said fact had been admitted by the prosecution witnesses i.e. PW9 Mujeeb, in his testimony, that there were other clinics in the vicinity, however, PW9 Mujeeb had categorically deposed that there was one clinic which fell on the way from the place of incident to Dr. Subhan Clinic, FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.39 of 43 however, it was closed on that day. He had, also infact, stated that he was not aware of other clinics such as Chawla Clinic, Vishal clinic, Shashi clinic which might have come on the way while they proceeded to Dr. Subhan clinic from the place of incident. Thus, it is quite obvious that the said witnesses i.e. PW9 Mujeeb and PW10 Abhishek @ Bitoo wanted to take their friend to the nearest possible known clinic, in order to save his life and would not wander about to unknown clinics, when their priority was to get first aid for their friend, who was injured. Therefore, there is no merit in the said arguments raised by the Ld. Defence counsel.
75. It had also been argued on behalf of the accused that since PW9 Mujeeb, deceased Akshay and PW10 Abhishek @ Bittoo were seating very closely on their motorcycle, seat of which was very slanting, therefore, there was no possibility of injured Akshay receiving any injury on the chest as alleged by the prosecution. Be that as it may, although admittedly, all three of them were sitting together on the motorcycle, however, perusal of the testimony of PW23 Dr. Asit Kumar Sikari, who was also present at the time of postmortem of deceased Akshay, shows that he had specially deposed that the injury present on the body of the deceased Akshay was possible even though he was sitting as the pillion rider on a moving motorcycle. The said witness had categorically deposed that the said injury was possible if the weapon of offence had a pointed end. As per the testimony of PW23 Dr. Asit Kumar Sikari, the FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.40 of 43 weapon had entered in downward directions and backward directions in relation to the body of deceased. There is no gain saying that the first portion which could be exposed to any kind of injury even when a person is sitting as a pillion rider closely with the other riders, is the chest. The said arguments would have been relevant had the injuries been sustained on abdomen region of the deceased, which obviously would not have been exposed in case of a pillion rider. The same is not the case in the present matter. Therefore, it can be concluded that the said injuries were possible on the chest region of the deceased.
Whether the act of the accused amounted to murder ?
76. As per the postmortem report dated 07.12.2014 of deceased placed on record Ex. PW23/A, it had been opined that 'injury no. 1 is antemortem and sufficient to cause death in ordinary course of nature'.
77. The relevant provision of IPC is reproduced as under:
Section 300 (2) IPC;- Except in the cases hereinafter excepted, culpable homicide is murder, if an act by which the death is caused is done with the intention of causing death, or- 2ndly 'If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or' 3rdly 'If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or' 4thly Xxxxx FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.41 of 43
78. In Virsa Singh Vs. State of Punjab, AIR 1958 SC 465, Hon'ble Supreme Court of India had elucidated the ingredients of section 300 (3) IPC which the prosecution was required to prove and the same are as under:-
"15. First, it must establish, quite objectively, that a bodily injury is present:
16. Secondly, the nature of the injury must be proved;
These are purely objective investigations.
17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional. or that some other kind of injury was intended...
18. Once these three elements are proved to be present, the enquiry proceeds further and.
19. Fourthly. it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
79. In the present matter, the prosecution had objectively proved the presence and nature of the injury as aforementioned in detail. The prosecution had also proved through the aforesaid eye witnesses that the said injury had been caused by the accused and the same was not accidental by any stretch of imagination.
FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.42 of 43
80. Further, it has been proved beyond reasonable doubt by the prosecution, from the aforesaid testimonies of eye witnesses, medical evidence, forensic evidence that the accused had caused injury on the chest of deceased Akshay i.e. vital part of his body, and as per medical evidence led by the prosecution, the said injury was sufficient in the ordinary course of nature to cause his death. Therefore, it has been proved by the prosecution that the accused committed murder of deceased Akshay within the meaning of section 300 (3) IPC.
81. The prosecution had also proved that the accused had inflicted simple injuries on the body of PW9 Mujeeb. However, no cogent evidence had been brought on record by the prosecution to prove that the accused intended to commit homicide of deceased Akshay. No such motive or circumstances had been brought on record by the prosecution.
82. In view of the aforesaid facts, the accused is hereby convicted for the offence u/s 302/323 IPC.
83. Copy of judgment be given to the convict free of cost.
Digitally signed byMANISHA ANNOUNCED IN OPEN COURT KHURANA MANISHA KAKKAR KHURANA on 30th January 2024 KAKKAR Date: 2024.02.05 15:51:11 +0530 (MANISHA KHURANA KAKKAR) ASJ (FTC)- 01, SOUTH DISTT.
SAKET: NEW DELHI FIR No. 639/14, PS Fatehpur Beri State Vs. Suraj @ Cocktail Page No.43 of 43