Delhi District Court
State vs Virender Yadav Etc on 22 October, 2011
IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT,
(New Delhi & South East District)
PATIALA HOUSE COURTS, NEW DELHI
S.C.NO.37/10
FIR No.379/2008
U/s 302/394/411/34 IPC
PS Connaught Place
State
Vs.
1. Virender Yadav s/o Sh.Ram Dhani Yadav
2. Naseem @ Sanjay Bildar s/o Saleem
.......... Accused
Challan filed on :19.11.08
Received by Fast Track Court on: 11.10.2010
Reserved for order on: 10.10.2011
Judgment delivered on:22.10.2011
JUDGMENT
Brief facts of the prosecution's case are that on 21.08.2008, on receipt of DD no.49A SI Birender Singh alongwith Ct. Gulab reached at bus stop plaza outer circle, New Delhi where HC Harbans Lal with Ct. Chhote Lal with one person named Virender Yadav, name came to know later on, were present. The injured was reported to have been removed to hospital by TSR driver. One two wheeler scooter bearing no. DL 2SL State Vs.Virender Yadav etc FIR No.379/08 Page No. 1 of 48 8390 was found parked. SI Birender and Ct. Gulab went to the hospital where they collected the MLC of injured Manmohan s/o Roshan Lal who was unfit for statement. The blood stained clothes of injured were seized by the IO. Thereafter they again came back at the spot where HC Harbans Lal produced one blood stained chhura allegedly recovered from accused Virender Yadav. It was measured and sketch was prepared. IO recorded the statement of HC Harbans Lal in which he has stated that he and Ct. Chhote Lal were on patrolling duty from 8 p.m to 8 a.m. At about 11 p.m they reached outer circle, Plaza Bus Stop where they saw that one person was being stabbed by two boys who were having big knives in their hands. The injured ran towards Chemsford Road to save himself. Those boys were chased by HC Harbans Lal on motorcycle and on seeing motorcycle they started running towards State Entry Road where while taking right turn one of the boy fell down. He stopped the motorcycle and tried to apprehend him but he immediately got up and started running. After chasing him for some distance, near railway track he hit him with his helmet and apprehended him. He was having knife in his right hand and with this knife he has attacked one person near Plaza Bus Stop. Another boy was chased by Ct. Chhote Lal but he succeeded to run away from there after crossing the railway track. They brought the said boy to the spot where they came to know that injured has been removed to hospital. He informed the Police Station about the incident. The name of the boy who ran away came to know as Nasir. On this statement IO prepared his endorsement Ex.PW23/B and sent rukka for State Vs.Virender Yadav etc FIR No.379/08 Page No. 2 of 48 registration of the case. The present case FIR no. 379/08 was registered. During investigation site plan was prepared, blood stained clothes of accused Virender Yadav were seized, blood stained personal search of injured was also seized and disclosure statement of Virender Yadav was recorded. It is the case of the prosecution that injured remained unfit for statement and expired due to injuries on 14.09.2008 and section 302 IPC was added. Thereafter accused Naseem was arrested and his disclosure statement was recorded, one wrist watch belonging to deceased was recovered. The TIP was conducted wherein the accused refused to join TIP. After completion of the investigation challan was filed in the court.
2. This case being triable by the court of session and after committal proceedings, it was committed by the Ld.MM and received by the court of sessions on 05.12.08 and thereafter by Fast Track Court on 11.10.2010.
3. Both the accused persons were charged u/s 394/302/34 IPC on 12.05.09 and accused Virender Yadav was separately charged u/s 25/27 Arms Act and accused Naseem was separately charged u/s 411 IPC by my Ld. Predecessor Sh P.S. Teji, Ld. ASJ to which accused persons pleaded not guilty and claimed trial.
4. The prosecution in support of its case in all has examined as many State Vs.Virender Yadav etc FIR No.379/08 Page No. 3 of 48 as 26 witnesses. Thereafter the prosecution evidence was closed.
5. The evidence against the accused persons were put to them in their statements of accused recorded u/s 313 Cr.P.C in which they have pleaded their innocence and stated that they have been falsely implicated in this case. Accused Virender Yadav has stated that he was illegally lifted from the road when he was sleeping on footpath. Accused Naseem has stated that he was brought by the IO after lifting from his house to PS Connaught Place where IO had asked him about the whereabouts of Nasir. He told that he does not know any Nasir. IO insisted for the same and asked him to pay Rs.2.00 lac to him failing which he threatened him that he will implicate him in this case. He did not pay the amount and told him that he is unable to pay any amount. Therefore IO has implicated him in this case. His name is Nasim while the name of the culprit is mentioned as Nasir in the FIR.
6. I have heard Ld. APP for the State as well as Ld. Defence counsel for the accused persons and perused the testimonies of the Pws and exhibited documents carefully.
7. In view of the submissions made by the Ld.counsel for the accused persons as well as Ld.APP for the State I have also perused the State Vs.Virender Yadav etc FIR No.379/08 Page No. 4 of 48 testimonies of Pws. PW1 Mahesh is the brother of deceased and he has stated that he reached in RML Hospital after receiving information about admission of his brother in the hospital. He has stated that his brother had told him that some bad elements had hit him with knives in the area of Connaught Place and had also taken away his wrist watch make Titan and Steel Chain. On 24.10.2008 he received a telephone from police officials telling him about recovery of a wrist watch asking him whether he would be able to identify the watch of his late brother. He came to Patiala House Court on 25.10.08 and identified the watch of his brother. He also saw scooter no. DL 2SL 8390 in the PS. He identified the watch Ex.P1.
8. PW2 Rajender Singh @ Raju is the colleague of deceased and he alongwith deceased and one Manjeet came to Connaught Place on 21.08.08 where they purchased whisky bottled and consumed the same. They stopped near Plaza to take eggs. While they were taking eggs after having parked their vehicles at a little distance, they heard a noise and saw helmet of Manmohan had fallen down form his scooter. Manmohan went to the police where his scooter was parked and had some exchange of words with the man and returned at the place where they were taking eggs. Thereafter he and Manjeet left to their houses and Manmohan went to the place where his scooter was parked. Next day they came to know that Manmohan had been attacked with knife. No incident had happened in his presence. He was declared hostile by the prosecution and cross State Vs.Virender Yadav etc FIR No.379/08 Page No. 5 of 48 examined by the Ld. APP for the State but in vain.
9. Pw3 Dr. Devender Kumar Atal has deposed that he was in the team headed by Astt. Professor Dr.SK Nayak who conducted the post mortem of Manmohan on 16.9.08. The post mortem report is Ex.PW3/A.
10. PW4 Ajit Kumar had deposed that Manmohan was his elder brother in law. He identified the dead body of his brother in law vide statement Ex.PW4/A and received the same vide receipt Ex.PW4/B.
11. PW5 HC Harbans Lal has deposed that on the intervening night of 21/22.8.08 he alongwith Ct. Chhote Lal were on patrolling duty and they saw two boys stabbing a person repeatedly. On seeing them those boys ran towards State Entry Road. While running one of them fell down and he was apprehended after hitting him with helmet. The other boy escaped. The boy who was apprehended his name came to know as Virender Yadav. One knife was held by him in his right hand which was recovered. The knife was blood stained. Accused Virender is present in the court and correctly identified. SI Birender reached at the spot. Injured was taken to hospital. His statement was recorded which is Ex.PW5/A and got the case registered. The sketch of knife is Ex.PW5/B and it was seized vide memo Ex.PW5/C. On casual search of accused four large paper pudia were recovered which were found to have contained 20 small pudia containing smack. One mobile phone was also recovered State Vs.Virender Yadav etc FIR No.379/08 Page No. 6 of 48 which was seized vide memo Ex.Pw5/D. The Bajaj Chetak Scooter was seized vide memo Ex.PW5/E. He has further stated that accused Virender was arrested vide memo Ex.PW5/F and his personal search was conducted vide memo Ex.PW5/G. His disclosure statement was recorded which is Ex.PW5/H. He has further stated that on 26.9.08 he identified co accused Naseem @ Sanjay who was arrested by SI Birender Singh on 26.9.08. He identified the chhura Ex.P2, Sigmatel Mobile Ex.P3, Shirt of accused Virender as Ex.P4.
12. PW6 Manjeet Singh has deposed that he alongwith Manmohan and Rajender, on 21.8.08 came to Regal Cinema where they consumed liquor and thereafter went to Plaza to eat omelette and bread. When they were eating omlette, the helmet of Manmohan was on his scooter and it was touched by somebody and fallen down and altercation took place. Thereafter they proceeded to their respective places. No quarrel took place in his presence. On Monday, he came to know that somebody has stabbed Manmohan with knife. He has been declared hostile by the prosecution and cross examined by the Ld. APP for the State.
13. PW7 Rakesh Kumar has deposed that he identified the dead body of deceased Manmohan and his statement in this respect is Ex.PW7/A.
14. PW8 HC Inder Singh has deposed that on 21.8.08 he was on duty from 12 night to 8 a.m. DD no.49 A copy of which is Ex.PW8/A was State Vs.Virender Yadav etc FIR No.379/08 Page No. 7 of 48 recorded. He has further stated that he received rukka through Ct. Gulab Singh on the basis of which he registered FIR no. 379/34. The copy of FIR is Ex.PW8/B.
15. PW9 HC Sunil Kumar has deposed that on 16.9.08 IO had gone to RML Hospital from where dead body was taken to Lady Harding Hospital for post mortem. After post mortem the dead body was given to the relatives of the deceased.
16. PW10 SI Mahesh Kumar has deposed that on 20.10.08 he went to the spot to take measurement and thereafter he prepared the scaled site plan which is Ex.PW10/A.
17. PW11 Dr. Ashwani has deposed that he had prepared the death report of Manmohan which is Ex.PW11/A.
18. PW12 Sh RK Singh, Nodal officer has on the request of IO he supplied the call details of mobile no. 9971676810 belonging to Zahir Ahmed. The copy of request is Ex.PW12/A and copies of call details are Ex.PW12/B1 to B12.
19. PW13 Nazakat Hussain has deposed that in the year 2008 he was driving his TSR no. DL 1RK 8339 and on 21.8.08 he was coming from gole market and at about 11.50 p.m when reached at the outer circle State Vs.Virender Yadav etc FIR No.379/08 Page No. 8 of 48 plaza bus stop,he saw gathering. He went there and saw one person in pool of blood and crying with pain. He removed him to RML Hospital and got him admitted there. He disclosed his name as Manmohan.
20. PW14 Ct. Sajjan Ali has deposed that on 23.9.08 on the basis of secret informer accused Nasim @ Sanjay Builder was apprehended at about 2.15 p.m from near pillar in front of Jain Book Depot, near Plaza Cinema. He was wearing yellow Tshirt and blue jeans. He wrongly identified the accused Naseem. He has further deposed that on personal search of accused smack was recovered from him and separate proceedings qua recovery of smack was conducted. Accused Naseem was arrested vide memo Ex.PW14/A and his personal search was conducted vide memo Ex.PW14/B.
21. PW15 HC Rajkumar has deposed that SI Virender received secret information that the person Nasim who was involved in stabbing case one month back has come at Plaza Cinema in front of Jain Book Depot. On the pointing out of secret informer he was apprehended and 5 gram smack was recovered from him. He was arrested in case FIR no. 426/08 He was interrogated and his disclosure statement was recorded which is Ex.PW15/A. He has further deposed that he took five sealed parcels to FSL Rohini.
22. PW16 Ct. Gulab has deposed that on 21.8.2008 he was on State Vs.Virender Yadav etc FIR No.379/08 Page No. 9 of 48 emergency duty. At about 11.55 p.m DD no.49A was received regarding apprehension of one boy with knife. He alongwith SI Virender reached at the spot where they met HC Harbans and Ct. Chotey Lal alongwith accused Virender and HC Harbans produced a chura to IO and informed that injured has been taken to RML Hospital in a TSR. He went to hospital with IO. Again they came back at the spot where statement of HC Harbans Lal was recorded. IO prepared rukka and handed over the same to him for registration of the FIR. He further deposed that accused Virender was arrested vide memo Ex.Pw5/F and his personal search was conducted vide memo Ex.PW5/G. One mobile was recovered by the IO vide seizure memo Ex.PW5/D. The scooter and Chura were seized vide memo Ex.PW5/E and Ex.PW5/C. The personal search of accused was seized vide memo Ex.PW16/A. The shirt of Virender Yadav was seized vide memo Ex.PW16/B and clothes were seized by the IO in the hospital of injured vide memo Ex.PW16/C. He identified the chhura, shirt and mobile of accused as Ex.P2,3 & 4.
23. PW17 Ct.Chotey Lal has deposed that on the night of 21 and 22 Aug, 2008 he alongwith HC Harbans Lal were on motorcycle duty from 8 p.m to 8 a.m. At about 11.40 p.m when they were present at outer circle, plaza bus stand, they saw two persons stabbing a person again and again said persons was shouting for help bachao bachao. They reached there and on seeing them, both of them started running towards Chemsford Road. They chased them and thereafter they entered in State State Vs.Virender Yadav etc FIR No.379/08 Page No. 10 of 48 Entry Road. They left the motorcycle and chased them on foot. One of the accused fell down at the railway track and he was apprehended and other who was being chased by him managed to escape. The boy who was apprehended by them gave his name as Virender Yadav, he was having a chura in his right hand which was recovered by them. The chura was blood stained. Accused is present in the court and correctly identified. He was brought to plaza bus stand. The injured was taken to hospital in a TSR. HC Harbans Lal informed DO from his mobile on which SI Virender alongwith Ct. Gulab came to the spot. He prepared sketch of the chura whcih is Ex.PW5/B and it was seized vide memo Ex.PW5/C. He also seized the blood stained shirt vide seizure memo Ex.PW16/B. He further deposed that IO recorded the statement of HC Harbans Lal and got the case registered. On 26.09.2008 he saw accused Naseem in the PS and identified the same who had escaped. He identified the case property.
24. PW18 Ct.Arun Kumar Singh has deposed that on 24.8.08 he alongwith SI Birender and one Constable went to the place where accused Nasir was residing near Mandawali. Accused Nasir pointed out that place. Accused Nasir produced a suitcase and took out a wrist watch from a suitcase make Titan,whose glass was broken and told that it was the same watch which was removed from the body of person killed by them. The watch was seized vide seizure memo Ex.Pw18/A. He was declared hostile by the prosecution and cross examined by the Ld. APP State Vs.Virender Yadav etc FIR No.379/08 Page No. 11 of 48 for the State.
25. PW19 Sandesh Kumar Gupta has appeared fro Dr. Poras from RML Hospital. He has deposed that Dr. Poras has prepared the death summary report of deceased Manmohan which is Ex.PW19/A.
26. PW20 Ct.Rajender Singh was the duty constable posted in RML Hospital when injured Manmohan was admitted . He handed over the jamatalashi of injured to IO which was seized by IO vide memo Ex.PW16/A. The articles were PAN CARD, Samsung mobile, brown colour purse and one D/L and Rs.700/ in cash.
27. PW21 Sh Satish Kumar, Ld. MM has deposed that on 25.9.08 he conducted the TIP of accused Naseem. He has stated that accused Naseem refused to join the TIP. TIP proceedings are Ex.PW21/B.
28. PW22 Parveen Kumar, Judge, Small Cause Courts, has deposed that he has conducted the TIP of case property on 22.10.08. He has stated that brother of deceased has correctly identified the watch of his brother. The TIP proceedings are Ex.PW22/C.
29. PW23 SI Birender Singh is the IO of this case and he has deposed that he reached at the spot on receipt of DD no.49A Ex.PW8/A where HC Harbans and Ct. Chotey Lal produced one person Virender Yadav State Vs.Virender Yadav etc FIR No.379/08 Page No. 12 of 48 alongwith one blood stained chhura recovered from Virender Yadav. He went to hospital where he found injured Manmohan unfit for statement as endorsed in MLC. He seized the parcels in the hospital vide memo Ex.PW16/C. He recorded the statement of TSR driver in the hospital. He came back to the spot and recorded the statement Ex.Pw5/A of HC Harbans, prepared rukka and got the case registered. He prepared the sketch of chhura Ex.PW5/B and seized the same vide seizure memo Ex.PW5/C. He made search of accused and found 20 puria of smack for which separate proceedings were initiated. He prepared the site plan Ex.PW23/B. He arrested accused Virender vide memo Ex.PW5/F and conducted his personal search vide memo Ex.PW5/G. He seized the blood stained shirt of accused Virender vide memo Ex.PW16/B. He recorded disclosure statement Ex.PW5/H. The scooter was seized vide memo Ex.PW5/E. He seized the belongings of injured vide seizure memo Ex.PW16/A. He has further deposed that on 26.8.08 accused was identified by the coemployees of deceased in the PS. The injured remained unconscious till his death. He conducted the inquest proceedings on 16.9.08. Form no.25.35 is Ex.PW23/D. He has further deposed that on 23.9.08 he received secret information regarding co accused Naseem @ Sanjay Builder that he will come opposite Plaza Cinema CP Near Jain Book Depot. He alongwith his staff went there and on the identification of secret informer, accused Naseem was apprehended and arrested vide memo ex.PW14/A. He was interrogated and his disclosure statement Ex.PW15/A was recorded. One mobile State Vs.Virender Yadav etc FIR No.379/08 Page No. 13 of 48 make Nokia 2310 bearing no. 9971676810 was recovered from his possession which was seized vide memo Ex.Pw23/E. 5 gms smack was also recovered from his possession and a separate case was filed under NDPS Act. He has further deposed that on 24.9.08 accused Naseem took them to Anjali Vihar in his house in Loni area and got recovered Titan watch with broken glass of dial nd chain of silver colour. It was seized vide memo Ex.PW18/A. He got conducted the TIP of accused as well as of case property. He sent the exhibits to FSL. He got prepared the scaled site plan Ex.PW10/A. He obtained the call details of mobile recovered from Naseem which are Ex.PW12/B1 to B12. He obtained the PM report He identified the case property.
30. PW24 Dr. Rajender Kumar is the witness from FSL and he has deposed that he examined the exhibits and prepared the biological analysis report which is Ex.PW24/A. The serological report is Ex.PW24/B.
31. PW25 Parshuram Singh is also the witness from FSL and he also examined the case property and given his report which is Ex.PW25/A.
32. PW26 Ct. Chottely Lal Meena is the eye witness and he has also been examined as PW17.
State Vs.Virender Yadav etc FIR No.379/08 Page No. 14 of 48
33. In the overall analysis of the testimonies of all the witnesses it is revealed that in this case PW2 Rajender Singh @ Raju and PW6 Manjeet are the colleagues of deceased Manmohan and they had consumed liquor on the day of incident together and thereafter as per the version of prosecution the incident of stabbing has also taken place in their presence. PW5 HC Harbans Lal and PW26 Ct. Chhotey Lal (PW26 also examined as PW17) are the police officials who were on patrolling at that time in the area and they had also seen the present case incident with their eyes. So, this case depends on direct evidence. Considering this case to be on direct evidence, firstly I have perused the testimonies of PW2,6,5 and 26 since these PWS are the main star witnesses of the prosecution case. From the deposition of PW2 Rajender Singh @ Raju and PW6 Manjeet Singh it is revealed that they are the colleagues of deceased Manmohan being working in Rail Bhawan. All the three left office together at about 8 p.m on 21.08.2008 and reached Connaught Place and at the back of Regal Cinema they purchased half bottle of whisky. They have further stated that after parking their vehicles they started taking eggs(omellete). While they were taking eggs, they heard a noise and saw helmet of Manmohan had fallen down from his scooter. Manmohan went to the place where his scooter was parked and had some exchange of words with the man and returned at the place where they were taking eggs. Thereafter they left to their houses and Manmohan went to the place where his scooter was parked. Both the witnesses have deposed that no incident had taken place in their presence. PW2 State Vs.Virender Yadav etc FIR No.379/08 Page No. 15 of 48 Rajender Singh has stated that after 34 days he was called to the PS Connaught Place and inquiries were made regarding the incident. Both the witnesses PW2 and PW6 who are the colleagues of deceased have been declared hostile by the prosecution and cross examined by the Ld. APP for the State. PW5 has denied the suggestion that after purchasing whisky they had gone to the place near Plaza bus stop at about 10.30 p.m. He admitted that he had told the IO that their motorcycle/scooter were parked near patri. He admitted that he has stated in his statement to IO that helmet of Manmohan had fallen from his scooter after being touched by a boy passing by the road. He denied that he had given the time to IO as 11.30 p.m VOL. They had left the place by 10/10.15 p.m. He denied the suggestion of Ld. APP that he had told that after the helmet of Manmohan fell down on the road from his scooter, Manmohan and the boy who had touched his helmet exchanged hot words and Manmohan hit that boy on his head with his helmet. He denied the suggestion that after the boy was hit by Manmohan with his helmet, a companion of that boy attacked Manmohan with a knife. He denied the suggestion that the boy who was hit by Manmohan with his helmet also stabbed Manmohan with a knife and Manmohan after being stabbed ran towards Chemsford Road and was chased by both of them. He denied the suggestion that he had also told the IO that at the T Point of Chemsford Road both of them caught hold of Manmohan and after pulling him down stabbed repeatedly with their knife. He denied the suggestion that he had told the IO that he will be able to identify the boy because of State Vs.Virender Yadav etc FIR No.379/08 Page No. 16 of 48 whom the helmet of Manmohan had fallen on the road after being touched. He denied the suggestion that he had told the IO in his statement that he had identified that boy who had attacked Manmohan with the knife in the police custody whose name and address was found to be Virender Yadav s/o Ram Dhani. He denied the suggestion that his statement recorded by the IO was read over to him. PW6 in cross examination conducted by the Ld. APP for the State has stated that police made enquiries from him and recorded his statement. He denied the suggestion that he told police that after altercation with Manmohan, Manmohan hit helmet on the head of that boy and the accomplice of that boy stabbed Manmohan with knife.. He denied that Manmohan ran away towards Chemsford Road and both the assailants followed him with knife. He denied the suggestion that both the assailants made Manmohan to fall down and attacked with knife and they because of fear, run away from there. He denied that he told the police that he can identify those assailants if shown to him. He denied the suggestion that on 26.8.08, he identified Virender Yadav in the PS and told that he was one of the assailants.
34. From the cross examination conducted by the Ld. APP for the State of PW2 & 6 it is revealed that they have not supported the case of the prosecution while both PW2 & 6 are the colleagues of deceased Manmohan. Both the witnesses have even not identified any of the accused Virender Yadav or Naseem as the boy(s) who touched the State Vs.Virender Yadav etc FIR No.379/08 Page No. 17 of 48 helmet of Manmohan on that day due to which helmet fell down. They have also not identified any of the accused that hot exchange of words had taken place between deceased Manmohan and them on that day. Both the witnesses were the best witnesses in this case to establish the presence of both the accused at the spot and that quarrel of deceased Manmohan had taken place with them. But both the witnesses PW2 & 6 are silent on these aspects. They have not identified any of the accused present in the court as the same boy who stabbed deceased Manmohan or with whom the hot exchange of words had taken place. Nothing could be extracted against the accused persons by the Ld. APP for the State after cross examination of PW2 & 6. Both PW2 & 6 are the colleagues of deceased Manmohan being working in same office. There is no reason for them not to depose their version recorded by the Police since deceased was their official colleague.
35. PW5 HC Harbans Lal and PW26 (PW17) Ct. Chotey Lal are also the eye witnesses in this case. It is the case of the prosecution that both were on patrolling duty at that time. PW5 HC Harbans Lal has stated that at about 11.40 p.m, when they reached at outer circle, Plaza bus stop they saw that two boys were stabbing a person repeatedly. The said person was shouting for help and came towards Chemsford Road and two boys chased him. On noticing them, those boys came towards State Entry Road and took a turn towards right side. While running, one of them fell down. He tried to apprehend him but he again started running State Vs.Virender Yadav etc FIR No.379/08 Page No. 18 of 48 and he was able to apprehend him after a distance when he hit him with his helmet. The other boy chased by Ct. Chote Lal escaped. The said boy was brought to Plaza bus stop and one blood stained knife held by him in his right hand was recovered. From the testimony of PW5 HC Harbans it is revealed that he had seen two boys stabbing one and thereafter he caught hold accused Virender with blood stained knife after hitting him with his helmet at some distance. PW17 Ct. Chotey Lal when examined on 17.07.2010 has stated that he saw two persons stabbing a person again said the said person was shouting for help bachao bachao. The version of PW17 regarding bachao bachao has not been corroborated by PW5 HC Harbans Lal. He has further stated that one of the accused fell own at the railway track and he was apprehended. PW5 who apprehended accused has not stated that he apprehended him near railway track. When PW17 Ct.Chotey Lal was examined on 11.8.2011 he has changed his version and stated that he saw four boys brutally beating one person with arms near Plaza Bus Stand. The complainant PW5 in this case has specifically stated that two persons were stabbing another person. Pw26 has stated that they chased the accused on the State entry Road and he also threated them with chura so, they left the motorcycle and chased in running condition and due to railway track he fell down and apprehended by them. PW5 HC Harbans Lal has not corroborated the version of PW27 that accused Virender has threatened them with chhura and that he fell down due to railway track. PW17 when examined as PW26 has not corroborated the version of PW5 that State Vs.Virender Yadav etc FIR No.379/08 Page No. 19 of 48 accused Virender was apprehended when he fell down after hitting with helmet by PW5 HC Harbans Lal. PW5 HC Harbans Lal has stated that SI Birender Singh reached at the spot. The inured was taken to hospital by public man in a TSR. PW13 Nazakat Hussain has removed the injured to RML Hospital in this case. On perusal of his testimony he has not stated that he was asked by some police officials to remove the injured to hospital. Further PW5 as well as PW26 have stated that HC Harbans Lal informed the PS and thereafter SI Birender and Ct. Gulab came there. PW8 HC Inder Singh has recorded DD no.49A on the information given by HC Harbans Lal which is reproduced hereunder: DD No.49A dated 21.8.08 PS Connaught Place, New Delhi DO Information received through telephone and departure Time 11.55 p.m (night) - HC Harbans Lal No.1332/ND given information through telephone that from Plaza Bus Stand,Outer Circle, Connaught Place one boy has been apprehended who is in possession of knife. Some IO be sent. Recorded in DD roaster. Copy of report handed over to SI Birender Singh who went to the spot with Ct. Gulab' This DD was the first DD after apprehension of accused Virender Yadav in the present case. On perusal of the contents of this DD got recorded by HC Harbans Lal, it is revealed that complainant PW5 has given information only with respect to apprehension of accused Virender with knife and he has not mentioned about stabbing of one man by the accused with knife which is blood stained or that the injured has been State Vs.Virender Yadav etc FIR No.379/08 Page No. 20 of 48 removed to the hospital. None mentioning of stabbing by accused and recovery of blood stained knife in DD no.49A create doubt in the case against accused Virender Yadav. Allegedly blood stained knife was recovered in this case from accused Virender as per deposition of PW5 HC Harbans Lal & PW26 Ct. Chotey Lal when he was apprehended. On perusal of FSL result Ex.PW24/A, it is revealed that on Ex.1 i.e. one weapon of offence having rusty metallic blade described as blood stained knife (chura), blood could not be detected. Further PW2 has denied the suggestion of Ld.APP for the State that he had given the time to IO as 11.30 P.M. He has volunteered that they had left the place by 10/10.15 P.M. As per statement of PW2 Rajender & PW6 Manjeet they consumed liquor around 9.15/9.30 p.m and thereafter they had taken the eggs. The incident of hot exchange would therefore might have taken place around 9.45/10 p.m and after taking eggs they had left. From the circumstance and testimony of PW2&6 it seems that they might have left the spot around 10.15/10.30 p.m. As per the case of the prosecution both PW2 & PW6 had seen the incident as Ld. APP for the State has put the suggestion to Pw2&6 in this respect. But on the other hand PW5 HC Harbans Lal and PW26 Ct. Chottey Lal have deposed that they had seen the incident at about 11.40 p.m while on patrolling. Even if it is presumed that PW2 & 6 had not seen the present case incident and it is believed that they had left the spot at 10/10.15 p.m, it is difficult to believe that incident of stabbing deceased Manmohan would have continued from 10.15 p.m to 11.40 p.m. If PW2&6 would have left at State Vs.Virender Yadav etc FIR No.379/08 Page No. 21 of 48 10/10.15 p.m, deceased might have also been trying to leave around the same time. The testimony of PW5 HC Harbans and PW26 Ct.Chotey Lal is therefore doubtful that they had seen deceased Manmohan and accused quarreling at about 11.40 p.m.
36. It is further the case of the prosecution that after apprehension of accused Virender, on his casual search four large paper pudias were recovered from right side pocket of his pant and each pudia was found containing 20 small paper pudia containing smack. Both Pw5 & 26 have corroborated in this respect. In his statement u/s 313 Cr.PC, the accused has taken the defence that he is innocent. He has not committed any offence. He has been falsely implicated in this case by the police. He was illegally lifted from the road when he was sleeping on footpath. In arrest memo Ex.Pw5/F, it has been clearly mentioned in column no.3 that accused Virender is vegabond, near Delhi Railway Station, New Delhi. The plea of accused Virender therefore seems to be true that he used to sleep on footpath.
37. I have considered the cross examination of PW5 & 26. Pw5 has stated that the distance between Chemsford road and State entry Road is about 100 to 200 meters. He did not state in his first statement that except these two accused present in the court today, no other two more boys chased the inujred when he was running towards Chemsford road in injured condition. Injured was being beaten by four persons and he has State Vs.Virender Yadav etc FIR No.379/08 Page No. 22 of 48 stated about the four persons in his first statement. So, in his first statement he has given the story of beating the injured by four persons but before the court he has deposed only about two persons. He has further stated that the helmet of the deceased was not taken into police custody in his presence. In the present case, the quarrel ensued because the helmet of deceased had fallen due to touch of one boy and but IO has not seized the said helmet. PW5 has further stated that in his presence no statement was recorded by the IO of the person from the crowd of peoples. It has also come in the testimony of Nazakat who removed the injured to hospital that many public persons were available at the spot. When police officials PW5 & Pw26 had seen the incident of stabbing, someone from the public must have also seen the same. But IO has not made any effort to join any public witness from the crowd to establish that accused is the same person who caused injury on the person of deceased. PW5 HC Harbans Lal who is the complainant in this case has further stated that he had been posted in PS Connaught Place w.e.f 21.09.2008 till 27.09.2008. PW26 has stated in cross examination that he did not disclose the description of the boy who was succeeded to run away from the spot after incident. Accused Virender Yadav was apprehended by HC Harbans lal at the distance of at about 200 meters away from the spot and he was also with him at that time and they were chasing him from the spot. He does not know whether IO had obtained finger prints from the recovered chura/knife. He does not know whether IO lifted blood stained from the spot or not because he was with the State Vs.Virender Yadav etc FIR No.379/08 Page No. 23 of 48 accused. In PS Connaught Place he usually posted in night duties from 8 p.m to 8 a.m and in day time he used to remain present in barrack. He does not recollect whether he was on leave during the period 21.08.2008 till 30.09.2008. However,no such record has been produced either by the prosecution or defence regarding leave of HC Harbans. He has further stated that the lock up is visible from the duty officer room. In this case PW5 HC Harbans Lal and PW 26 Ct. Chote Lal are the police officials on duty and they allegedly apprehended the accused alongwith blood stained knife. The prosecution could not prove the departure entry of PW5 and PW26 on record to establish that they were really on patrolling duty in the area of Connaught Place at the relevant date and time. The IO has not taken any step to call crime team to lift the finger prints from the alleged chhura to establish that it was the chhura which was in the hand of accused Virender Yadav. It is the case of the prosecution that blood stained chhura was recovered from accused Virender Yadav. It is mentioned in challan u/s 173 Cr.PC that the said chhura was kept on white paper and its sketch was prepared. On perusal of sketch Ex.PW5/B it is revealed that no marks of blood had come on the white paper sheet. Had it been blood stained, the blood marks would have come on the white sheet also. Further the FIR number written on Ex.PW5/B has been cut by the IO. First it was written as FIR no.387 and after cutting it was made FIR no.379. Considering the testimony of eye witnesses PW26 Ct Chote Lal has himself made contradictory statements when he was examined as PW17 because first when examined as PW17 he has given State Vs.Virender Yadav etc FIR No.379/08 Page No. 24 of 48 the story of seeing two persons causing injuries to one person and thereafter when he was examined as PW26 after one year he has stated that four persons were stabbing one person. PW5 HC Harbans Lal who was with Pw26 has stated in examination in chief that he saw two boys stabbing a persons but in cross examination he has stated that injured was being beaten by four persons and he has stated about the four persons in his first statement. PW5 has stated that accused Virender was apprehended when he fell down after hitting with helmet by him. But this version has not been supported and corroborated by PW26 Ct.Chotey Lal who was with him as he has simply stated that accused has fallen down due to railway track. The testimony of PW5 HC Harbans Lal and PW26 Ct.Chote Lal who is contradictory. The time of incident alleged by PW2&6 and PW5 & 26 are contradictory. IO has not tried to record the statement of omlette vendor at Plaza Bus Stand as well as whisky shop owner from where the bottle was purchased by deceased and his associates PW2 & 6. PW2 & 6 have even not stated that the boy with whom hot exchange of words took place remained present at the spot thereafter because as per the testimony of PW2 after exchange of words, deceased again came to his colleagues and took eggs. The above circumstances do not inspire confidence in the testimonies of PW5 HC Harbans Lal and PW26 Ct.Chote Lal. On perusal of the disclosure statement of accused Virender Yadav Ex.PW5/H, it has not been disclosed by him that the helmet of injured fell down because of touch of Nasir due to which quarrel took place between them. He has simply State Vs.Virender Yadav etc FIR No.379/08 Page No. 25 of 48 stated that quarrel had taken place of Nasir with one person and that person gave helmet blow on the head of Nasir. He attacked with chhura on that person and Nasir also given blow with knife. He has disclosed that he can get arrest Naseem, Nasir and Munto. Accused Naseem has been arrested by the police on the basis of secret information in this case. Remaining accused are not arrested till date. So, none of the accused has been arrested at the instance of accused Virender. Though accused Virender was arrested, as per version of PW5 & 26, from the spot but the deposition of PWS do not inspire confident that accused Virender is the same boy who had given blow with knife on the person of deceased Manmohan. DD with regard to departure of PW5 and 26 for patrolling remained unproved. It is held in case titled State of U.P Vs. Madan Mohan & Ors, AIR 1989 Supreme court 1519 that : 'Penal Code (45 of 1860), S.300 - Murder - Appreciation of evidence - Presence of eye witnesses at place of occurrence found doubtful - No independent witness from locality whose presence would be natural, examined - Prosecution suppressing genesis of crime - No explanation by prosecution regarding injury on person of one of accused - Prosecution version about occurrence differing from version in dying declaration - Names of eye witnesses and some of accused not mentioned in dying declaration - Acquittal upheld'. In case Law titled The State of Assam Vs. Bhelu Sheikh and Ors., 1989 CRI.L.J.879 it is stated in head note that : 'Penal Code (1860), Ss.300, 149 - Murder - Appreciation of evidence - No clear and cogent evidence to show that accused had caused injuries to victims - Statement of one of deceased not recorded by Magistrate even through he was alive fro nine days after occurrence - Injuries on persons of accused not explained - Acquittal of accused - Held proper.' State Vs.Virender Yadav etc FIR No.379/08 Page No. 26 of 48 In case law titled Govind Narain and Anr Vs. State of Rajasthan, 1993 CRI.L.J. 2598 it is stated in head note that : 'Evidence Act (1872), S. 134 - Penal Code (1860), S.300 - Sole eye witness - Credibility - Murder Case Accused alleged to have assaulted and pushed deceased into dry well FIR vague - Eyewitness omitting vital details in FIR relating to manner of assault on deceased - His version not worthy of credence - It can be said that he was falsely introduced as eye - witness'.
An important point has been observed in case Law 1998(8) Supreme Court 435 that in absence of independent evidence merely on basis of police officer's evidence about seizure of pistol and cartridge conviction could not be upheld. It is well settled law in the Darshan Singh vs. State of Haryana, 1997(2) CC Cases HC 189 that : "When genuine attempts has not been made to join public witnesses
- One is constrained to observe that in case of suppression and mis statement of fact, it is difficult to believe the official witnesses". It is stated in case Law 2004(2) JCC 1022 titled Sahdeo & ors. Vs. State of UP that : 'Criminal Trial - Co accused - Acquittal of by Sessions Judge - Offnce u/s 302 IPC - On appeal conviction and sentence by High Court - Legality of - Recovery of incriminating articles on the basis of disclosure statement not proved by independent evidence - Conviction set aside'.
State Vs.Virender Yadav etc FIR No.379/08 Page No. 27 of 48
38. In the instant case, departure entry of PW5 HC Harbans & PW26 Ct. Chote Lal could not be proved by the prosecution on record by examining the duty officer concerned. Therefore, their presence at the spot is doubtful. PW5 HC Harbans lal who is the complainant, has not assigned any particular role to accused persons as he has only stated that they saw two boys stabbing a person repeatedly. PW26 has made contradictory statement from his own statement recorded as PW17. No independent witness has been associated. The deceased alongwith his associates were taking eggs at the place of incident. Therefore, the egg vendor would have seen the incident. He would have been the best witness in this case. But IO has not made effort to interrogate him and cite him as witness in this case. As per testimonies of PW5&26, there were many persons gathered at the spot. PW13 Nazakat Hussain who removed the injured to hospital has also stated about availability of gathering there. PW13 has not stated about availability of any police official at the spot and IO has not joined any independent witness in this case. The version of PW2,6 who are public witnesses and colleagues of deceased is differing from the version of PW5 HC Harbans and PW26 Ct. Chote Lal. Challan u/s 173 Cr.PC does not show as to what action has been taken by IO to arrest the co accused Montu and Nasir disclosed by accused Virender Yadav in his disclosure statement. Be that may the fact remains that the genesis of the crime is suppressed and no witness from the locality whose presence would be natural is examined which creates a doubt regarding the truth of the prosecution version. The MLC State Vs.Virender Yadav etc FIR No.379/08 Page No. 28 of 48 of deceased show that initially on systemic examination five injuries have been found on the chest and abdomen of deceased. Thereafter two more injuries have been mentioned in Local examination column. But these injuries have been mentioned with different pen which clearly suggest that these were mentioned after preparation of MLC. On comparison of these injuries with the injuries found by the doctor who conducted the post mortem, it is revealed that while post mortem was carried out, the doctor had found total 13 injuries. The MLC shows that patient was unfit for statement. But PW1 Mahesh who is his brother has stated that his brother became unconscious after talking to him 23 minutes and he died in the hospital on 15.09.08. All the injuries except injury no. 1,6,11 were either healed wounds or partly healed wound. Pw3 Dr. Devender Kumar Atal has given opinion that cause of death is septicemic shock as a complication of multiple sharp force injuries, all injuries are antemortem in nature. Regarding the nature of injuries, opinion may be obtained from primary treating surgeons. It is strange to note that the doctor who conducted the post mortem of deceased Manmohan had not given the exact nature of injury in the post mortem report. PW19 Dr. Sandesh Kumar Gupta has stated that patient developed multiple organ failure and expired on 15.9.08 at 3 p.m. Cause of death was Cardio Pulmonary failure in a case of Multiple thoracic and abdominal stab injuries with septicemia with multiple organ failure. So, the prosecution could not explained the injuries on the persons of deceased Manmohan. PW5 & PW26 have not given their State Vs.Virender Yadav etc FIR No.379/08 Page No. 29 of 48 consistent and corroborative statements pointing to the guilt of accused persons. It seems that they are falsely introduced witnesses just to bolster up a prosecution case. However, I have also considered the testimonies of other witnesses.
39. PW23 SI Birender Singh has conducted the investigation in this case. He reached at the spot on receipt of DD no.49A copy of which is Ex.PW8/A where HC Harbans and Ct. Chote Lal produced one accused Virender Yadav alongwith one blood stained chhura. PW16 Ct. Gulab accompanied him to the spot. In cross examination he has stated that he had gone through DD no.49A and it is regarding stabbing and apprehension of one assailant. VOL. The duty officer disclosed him at the time of handing over of DD no.49A that some stabbing incident has already taken place and one boy with knife was apprehended. He has further admitted that in the said DD regarding stabbing is not mentioned. He has not recorded the statement of DD writer. I have considered the said DD no.49A. But nowhere it is mentioned that someone has been stabbed and the accused has been apprehended with blood stained knife. So, the case of prosecution is doubtful against present accused persons.
40. PW23 SI Birender Singh and PW16 Ct. Gulab have further stated that they went to the hospital where they found the injured admitted and thereafter he came at the spot and prepared the sketch of chhura recovered from accused Virender. The sketch is Ex.PW5/B and it was State Vs.Virender Yadav etc FIR No.379/08 Page No. 30 of 48 taken into possession vide memo Ex.PW5/C. I have perused the said sketch Ex.PW5/B wherein the total length is mentioned as 32.5 cm, length of handle is 12 cm, length of blade is 20.5 cm and maximum width with blade 4.4 cm. PW25 Sh Parshuram Singh, Sr. Scientific Officer (Physics), FSL Rohini has examined the and compared the cut marks on shirt, pant and baniyan. His report is Ex.PW25/A. On perusal of the report it is revealed that he has received the knife measuring 32.5 cm in length, blade length 20.5 cm and 4.7 cm maximum width with one edge sharp. There is difference between the measurement of width of blade of the knife sent by PW23 and examined by PW25. This create doubt about sending the recovered knife to FSL for examination with cut marks available on the pant, shirt and baniyan of deceased.
41. PW23 SI Birender has further stated that 20 puria of of smack were recovered from accused Virender Yadav. Admittedly, accused Virender Yadav is a vagabond and used to live on patri. Challan u/s 173 Cr.PC as well as arrest memo of accused are self explanatory in this respect. Considering the disclosure statement of accused, he has disclosed about smack business and that he used to live with Mantu and Naseem in Jaitpur on a rented house. When he was living on rented house as per disclosure statement, it is not understandable as to how he has been shown as vegabond.
42. PW23 has further stated that he recorded the statement of HC State Vs.Virender Yadav etc FIR No.379/08 Page No. 31 of 48 Harbans Lal prepared rukka Ex.PW23/B and got the case registered through Ct. Gulab Singh. Ct. Gulab Singh has also deposed in this respect. Pw8 HC Inder Singh has recorded the FIR of this present case. PW23 has further stated that he arrested accused Virender Yadav vide memo Ex.Pw5/F and conducted his personal search vide memo Ex.PW5/G. He seized the blood stained shirt of accused Virender Yadav vide memo Ex.PW16/B. PW20 Ct Rajender Singh has handed over pullanda in the hospital containing the blood stained cloths of injured which was seized vide memo ex.PW16/A. It has come in evidence that these articles were sent to FSL for examination. Pw24 Dr. Rajender Kumar has examined the same and given report which is Ex.PW24/A&B. I have also perused the said reports. AS per report Ex.PW24/A blood was detected on Ex.2a i.e. shirt, Ex.2b i.e. banian, Ex. 3a i.e. pant, Ex.3b i.e. underwear, Ex.4a mobile phone, Ex.4b i.e. purse, Ex.4c i.e. pieces of paper, Ex.4d i.e. handkerchief and Ex.5 i.e. shirt.Blood could not be detected on Ex.1 i.e. blood stained knife. On perusal of report Ex.PW24/B it is revealed that no reaction for species of origin as well as no blood group was detected on Ex.2a, 2b, 3a, 3b, 4a, 4b and on pieces of papers human blood was found but blood Group could not be detected. Further on Ex.4d i.e. handkerchief and Ex.5 shirt human blood of 'AB' Group was found. The shirt Ex.5 and handkerchief Ex.4d were found in parcel no.4 by Dr. Rajender Kumar sealed with the seal of 'BS'. It is crystal clear that handkerchief was not seized in the hospital by the doctor and it was seized only by the IO with personal State Vs.Virender Yadav etc FIR No.379/08 Page No. 32 of 48 search of injured vide memo Ex.Pw16/A. Non presence of the blood/blood group on the blood stained cloth of deceased seized by the doctor and only presence of blood of AB group on the handkerchief and shirt seized by the IO create suspicion.
43. PW23 has further stated that on 26.8.08 the accused was identified by the coemployees of the deceased in PS and he recorded the statement of Manjeet and Rajinder in this respect. Both the PW6 Manjeet and PW2 Rajinder have denied this fact about identification of accused Virender in the PS. These two PWS, PW2&6 are the colleagues and coemployees of deceased Manmohan. Had they identified the accused, they would have deposed about the same. Accused Virender is a vegabond. Therefore collusion of PW2&6 with accused cannot be ruled out.
44. PW14 Ct.Sajjan Ali, PW15 HC Raj Kumar and PW23 SI Birender Singh are the witnesses of arrest of accused Naseem @ Sanjay Bildar. As per their deposition, accused Naseem was arrested on the basis of secret information while he was standing in front of Jain Book Depot near Plaza Cinema and allegedly 5 gms smack was recovered from him. PW15 got the case registered regarding recovery of smack vide FIR no. 426/08. PW14 Ct. Sajjan Ali could not identify accused Naseem present in the court at first instance. In cross examination PW14 has denied the suggestion that accused Naseem was arrested from Anjali Vihar, Loni from the house of his sister. He denied the suggestion that no smack was State Vs.Virender Yadav etc FIR No.379/08 Page No. 33 of 48 recovered from accused. Pw15 HC Raj Kumar in cross examination has stated that he did not sign any proceedings in this case nor he is aware about any proceedings in this case except taking the case property to FSL. PW23 SI Birender Singh has stated that he interrogated the accused and recorded his disclosure statement Ex.PW15/A. One NOKIA phone make 2310 was recovered from his possession. I have perused the disclosure statement of accused. Ex.PW15/A. On the basis of this disclosure statement allegedly one wrist watch was got recovered by the accused. The prosecution has examined PW18 Ct. Arun Kumar and IO PW23 to prove the recovery of watch. PW23 has stated that accused Naseem @ Sanjay Bilder led the police party to Anjali Vihar in his house situated in Loni Area District Ghaziabad UP and got recovered one Titan Watch with broken glass of dial and chain of silver colour which was seized vide memo Ex.PW18/A. PW18 Ct. Arun Kr Singh has stated that he alongwith SI Birender and one constable whose name he does not remember, had gone to a place where accused Nasir was residing near Mandavali across Yamuna. Accused Nasir pointed out that place and on reaching the house he produced a suitcase and took out a wrist watch from a suitcase make Titan whose glass was broken. PW18 has stated that wrist watch was got recovered from Mandavali, trans Yamuna by the accused while PW23 has stated that he got recovered the same from Anjali Vihar. PW18 has also deposed wrong date of recovery of watch as 24.8.08 while correct date of recovery is 24.09.08. PW18 has been declared hostile by the prosecution and cross examined by the Ld. APP State Vs.Virender Yadav etc FIR No.379/08 Page No. 34 of 48 for the State and thereafter he admitted the suggestions of Ld.APP put in affirmative. I have also perused the cross examination of PW18 & PW23. PW18 has stated that the place where they went is an inhabited area. Some neighbours and public persons were asked to join the proceedings after reaching Loni but none came at the spot. No notice was given to anyone. One lady was present in the house but, he does not know how she was related to the accused Naseem. PW23 has stated that there were other houses but no one joined the investigation. AT that time the house was bolted not locked. None was present inside the house at that time. He did not ask regarding any pradhan of the said locality at that time. PW18 has stated that there was one lady inside the house while PW23 has stated that there was none inside the house. He did not seize the suitcase in which the watch was kept. In this case both the witnesses who have been adduced by the prosecution with regard to recovery of watch have given contradictory statement. No independent witness at the time of recovery of wrist watch has been associated through as per deposition of PW18 one lady was present in the house in question. The suit case in which the watch was kept has also not been seized by the IO. So, the recovery of watch at the instance of accused Naseem is therefore doubtful.
45. IO has further stated that the TIP of Case Property i.e. wrist watch was conducted. PW22 Praveen Kumar has conducted the TIP of wrist watch with chain broken and tint glass. PW1 Mahesh has identified the State Vs.Virender Yadav etc FIR No.379/08 Page No. 35 of 48 said watch as of his brother. The TIP of case property was conducted on 25.10.08 . PW22 Sh Praveen Singh, Judge Small Cause court has stated in cross examination that he does not recollect the make of watches mixed with the case property as well as whether those were in broken condition or not. I have perused the proceedings Ex.PW22/C. In the present case wrist watch with tint glass and broken chain was recovered. But no where in the proceedings, it has been mentioned that similar make of watches with broken chain and tint glass was mixed with the case property. AS per the version of PW1 he identified the said watch out of several watches. But there is no evidence on record to show that the recovered writs watch was mixed with similar tinted glass with broken chain of watches as well as of same make Titan.
46. I have perused the disclosure statement of accused. In case Law titled Fellix - Joannas Vs. Stae of Karnataka, 1998 CRI.L.J.2479 it is stated in head note that : 'Penal Code (45 of 1860). S.300 - Murder - Proof - Accused alleged to have strangulated deceased wife with shoe lace - voluntary statement as to by accused - But same not signed by accused - Could not be relied on - Only material to incriminate accused was recovery of shoe lace from accused - Accused Acquitted'.
47. In the present case in hand, allegedly accused Naseem has made disclosure statement Ex.PW15/A. On perusal of the same it is revealed that it does not bear the signatures or thumb impression of accused. The Hon'ble Supreme Court in 1995 AIR SCW 3485: 1995 Cri LJ 3992) (Jackaram Singh Vs State of Punjab) in para 8 has held that the absence State Vs.Virender Yadav etc FIR No.379/08 Page No. 36 of 48 of the signatures or thumb impression of the accused on the disclosure statement recorded u/s 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement. In view of this the disclosure statement Ex.PW15/A is not admissible.
48. PW23 SI Birender has further stated that he got conducted the TIP of accused Naseem. PW21 Sh Satish Kumar, Ld.MM has conducted the TIP of accused. The TIP proceedings are Ex.PW21/A. On perusal of the TIP proceedings it is revealed that accused Naseem has refused to participate in the TIP proceedings. In his statement u/s 313 Cr.PC, accused has taken the plea that he was already shown to the witnesses in PS Connaught Place. Accused Naseem has not been identified by PW2 Rajender and PW6 Manjeet as the same boy with whom hot exchange of words had taken place of deceased Manmohan. Even they have not stated that he was present at the spot. PW5 HC Harbans Lal and PW26 Ct. Chote Lal are the other witnesses who had allegedly seen the accused at the time of incident. But PW5 HC Harbans Lal has stated in cross examination that it is wrong to suggest that accused Nasim was arrested on 23.09.2008 vol. He was arrested on 26.09.08. He denied that the IO had already shown to him the dossier of accused Nasim in the PS. PW26 Ct. Chote Lal has stated that he does not recollect the month but it was 26 date in the next month from the incident of 2008, the accused Naseem was arrested and brought to PS. After seeing him he identified him that he was also one of the person who was involved in the incident. His State Vs.Virender Yadav etc FIR No.379/08 Page No. 37 of 48 statement was recorded by the IO. Testimony of PW26 clearly indicate that after arrest, accused Naseem was brought to PS where he had seen him. They have deposed wrong date of arrest while in the arrest memo the date of arrest is shown to be 23.09.08. Column no.4&7 of arrest memo revealed that these were written with different pen and not with the pen with which the other columns have been filled. PW23 has stated that on 22.09.08 at about 2 p.m he received secret information regarding accused Naseem. He does not know whether the information was reduced in writing or not. PW23 IO has also deposed the wrong date of receiving secret information in cross examination. He has further stated that accused Naseem was arrested at about 5 p.m while the time of raid has been deposed as 2.15 p.m. He has denied that he obtained the copy of dossier of accused Naseem on 23.09.2008. I have also perused the said copy of dossier. AS per dossier available on file it is revealed the the copy of the same was received by IO on 23.09.2008 at 3.50 P.M. It also show that accused used to steel properties after giving poisoned tea to passengers at railway station and TODAY he caught red handed. The photograph of accused on the dossier is clear. Both PW5 and PW26 are the police officials and remained present in the PS as per admission of IO PW23. The TIP of accused was conducted on 25.09.2008. It is clear that accused must have been seen by PW5 & PW26 in the PS or IO must have shown his dossier depicting photograph of accused to PW5 & 26. Therefore, no adverse inference can be taken against the refusal to participate in the TIP by accused Naseem.
State Vs.Virender Yadav etc FIR No.379/08 Page No. 38 of 48
49. I have perused the medical evidence. PW11 Dr. Ashwani has prepared the death report Ex.PW11/A. PW3 Dr. Devender Kumar Atal was in the medical team headed by Astt. Professor Dr.S.K.Nayak while post mortem was conducted. On the person of deceased following injuries were found.
1. Tracheostomy wound gap 5 cm x 3 cm with 4 violet colour vicryl suture situated on teh front of neck, 2 cm above sternal notch
2. Partly healed incised wound, 2.5 cm x 0.2 cm with 2 stitch mark, situated horizontally in right side front of chest, 7 cm away from midline, 7 cm above right nipple and 140 cm above right heel.
3. Partlyhealed incised wond, 4.5 cm x 0.8 cm with 3 stitch mark, situated horizontally in right side front of chest, 4 cm away from midline, 3 cm above right nipple and 135 cm above right heal.
4. Partly healed surgically created incised wound of 28 cm length, with 28 stitch mark situated in the midline of front of abdomen, just below the xiphesternum with curving around right side of umblicus.
5. Partly healed incised wound 2 cm and 0.8 cm, situated on the right anterior aspect of abdomen, 13 cm from the midline, 20cm below right nipple and 111 cm above the right heal. The incised wound is directed downwards and medially.
6. Infected irregularly circular wound of size 3 cm x 3 cm, situated on the right lateral aspect of chest along a anterior axillary line, 7 cm below the axillary pit and 30 cm away from midline.
7. Partly healed and infected spindle shape stab wound of size 3.5 cm x 1 cm x chest cavity deep, situated on the right lateral aspect of chest along the anterior axillary line, 19 cm below the axillary pit and 20 cm away from midline and 120 cm above the right heel, the wound is directed anteriorly downward.
8. Healed stab wound of size 3 cm x 0.5 cm with 1 stitch mark situated almost horizontally on the left anterio lateral aspect of abdomen, 9 cm above anterior superior iliac spine, 13 cm away from midline and 109 cm above left heel.
9. Partly healed stab wound of size 1.9 cm x 1 cm situated almost horizontally on the left side, anterio lateral aspect of abdomen 14 cm above anterior superior iliac spine, 13 cm away from midline and 113 cm above left heel.
10. Healed incised wound, 3 cm long containing one stitch mark situated horizontally on the left side front of chest, 6 cm away from midline and 137 cm above left heel.
State Vs.Virender Yadav etc FIR No.379/08 Page No. 39 of 48
11. Infected wound 3 cm x 3 cm, situated on left lateral aspect of chest along the midaxillary line, 10 cm below axillay pit, 20 cm away from anterior midline.
12. Partly healed and infected inverted V shaped stitched incised wound of size 5 cm + 5 cm situated on back of mid part of left arm, 20 cm below tip of acromian.
13. Partly healed stitch incised wound, 5 cm x 1 cm situated vertically on the left posterio lateral aspect of chest, 24 cm above posterior superior iliac spine, 20 cm above midline, 124 cm above left heel.
On Internal Examination
1. Thorax - Upper margine of right side 6 ribs found cut of size 2 cm x 0.2 cm, in anterior axillary line, corresponding to external injury no.7.
2. Pleural cavity and lung - right side pleural cavity contain above 1 litre of fluid and clotted blood, with punctured laceration of right lung, corresponding to injury no.7. Left lung was edematous and congestive.
3. Abdomen - Abdominal cavity contain about 500 ml of clotted blood with few ml. Of sero sanginous fluid.
4. Stomach Stomach empty and mucosa of stomach normal
5. All organs are adherent to each other
6. Spleen absent (removed surgically).
PW3 has stated that cause of death to the best of his knowledge and belief is septicemic shock as a complication of multiple sharp force injuries. Regarding the nature of injuries, opinion may be obtained from primary treating surgeon. In cross examination he has stated that the deceased was brought for post mortem by SI Birender Singh and the alleged history of death was given by him. The weapon of offence was not produced before him. He admitted that in the alleged history weapon of offence is not mentioned. It is correct that the name of the doctor who declared Manmohan dead is not mentioned in the post mortem report. He admitted that he has not given the exact nature of injury in his post mortem report Ex.PW3/A.From perusal of the testimony of PW3 it is State Vs.Virender Yadav etc FIR No.379/08 Page No. 40 of 48 revealed that the weapon of offence was not produced before him to establish as to whether the injuries found on the person of deceased Manmohan were possible with the alleged recovered knife(chhura) or not. The alleged history of assault has been given by IO/SI Birender but he has not mentioned about weapon of offence. It is strange to note that PW3 did not give the exact nature of injury in PM report Ex.PW3/A. Further the death summery Ex.PW19A prepared by PW19 Dr. Sandesh Kumar Gupta. In death summary it is mentioned that Patient was given CRRT on 10th, 11th, 12th, 13th and 14th. Patient had cardiac arrest once at 7.50 a.m on 15.9.08 but they could revive him. Later on at 2.30 p.m patient again had cardiac arrest and could not revive and patient declared dead at 3 p.m on 14.9.08 (should be 15.9.08). Cause of death has been given as Cardiopulmonary Failure in a case of multiple thoracic and abdominal stab injuries with septicemia with multi organ failure. So, in death summary it has been mentioned that patient had suffered cardiac arrest. In case Law 1990 (1) CC Cases 250 (HC) it is stated in head note that: 'Presence of injuries on the person of the deceased cannot be ground for commission of an offence'.
50. PW23 SI Birender has stated that he has collected the call details and prosecution has examined PW12 Sh RK Singh, Nodal officer from Bharti Airtel Ltd who has stated that the mobile no. 9971676810 was State Vs.Virender Yadav etc FIR No.379/08 Page No. 41 of 48 belonging to Zahir Ahmed and he had supplied the call details for the period 10.8.08 to 26.8.08. the copies of call details are Ex.PW12/B1 to B12. Allegedly the said mobile phone was recovered from accused Naseem. Accused has denied about recovery of any mobile from his possession in his statement u/s 313 Cr.PC. The seizure memo Ex.PW23/E of Nokia Phone 2310 does not bear the signatures of accused Naseem. No other pubic witness has been joined at the time of recovery of the alleged phone from accused Naseem. Further the alleged phone is belonging to Zahir Ahmed and not accused Naseem. It is not in evidence that the said mobile was stolen by accused from the possession of Zahir Ahmed or that he had purchased the same in the name of Zahir Ahmed. The call details Ex.PW12/B1 to B12. Perusal of the same it is revealed that these does not bear the signatures of any officials of the company. PW12 who is Nodal Officer has not stated that he himself took out the printout of these details. There is even no covering letter attached to the said call details. In this case certification from a responsible officer of the company having control over the computer or authorized to generate a print out from the computer has not been proved by the prosecution. PW12 has been examined from the company but he has not stated that the computer generated sheets were generated through the computers storing the information and the information generated was stored in the ordinary course of business of the service provider. In case Law 2003 IV AD (Cr.) 205, State Vs. Mohd. Afzal & Ors., the law regarding proving of electronic record has been explained. In view of the above case Law, State Vs.Virender Yadav etc FIR No.379/08 Page No. 42 of 48 I am of the opinion that mandate of section 65B of Evidence Act has not been complied with in this present case. So, the prosecution has even failed to prove the computer generated call records or that the alleged recovered phone was belonging to accused Naseem.
51. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In the present case as per the facts and circumstances, the motive has been alleged that the boy who was passing by the scooter of deceased touched the helmet due to which it fell down and hot exchange took place between that boy and deceased. But thereafter as per the testimony of PW2 & 6 who are the colleagues of deceased, it has come in evidence that deceased Manmohan had come to them for taking eggs. As per the admission of IO in cross examination, State Vs.Virender Yadav etc FIR No.379/08 Page No. 43 of 48 the said helmet in question has not been seized in this case nor produced in the court. The falling of helmet has been alleged as the main cause but the same has not been seized or produced in the court. It seems that there was no such helmet available at the spot since not seized. The egg vendor available at Plaza Bus Stop has not been cited as witness nor examined in this case. He would have been the best witness to describe the incident. The testimonies of police official PW5 HC Harbans Lal and PW26 Ct. Chote Lal does not inspire confidence. The recovery of wrist watch is doubtful as discussed above as it has not been conclusively proved by the prosecution. In view of this motive also could not be proved by the prosecution. It is stated in Yogi Choudhary etc. Vs. State of Bihar, 2005 CRI. L.J. 2285 that : 'Penal Code (45 of 1860) Ss.300, 34 - Murder - Absence of eyewitnesses - Motive of accused to commit murder found not convincing - Even otherwise, motive alone could not be made basis of his conviction - No evidence that he was present at place of occurrence when murder was committed - As far as second accused was concerned, informant stated in Fardbeyan that he recognized voice of that accused - Complete goby given to this statement by informant in his examination in court - Stating that he named that accused on suspicion - There was absolutely no evidence against both accused - entitled to acquittal'.
In case titled Preetam Singh Vs. The State, 1998 (1) JCC (Delhi) 94 it is stated in head note that : 'Penal Code, 1860 - Sec. 302, 460 and 411 - Murder and theft A number of defaults in prosecution case and conviction - Circumstantial evidence - Prosecution failed to prove a complete chain of circumstantial evidence. In the present case the State Vs.Virender Yadav etc FIR No.379/08 Page No. 44 of 48 circumstantial evidence produced by the prosecution does not conclusively lead to the only irresistible conclusion that the appellants were the persons who committed the crime and none else - Hence the appellants are entitled to benefit of doubt.' Recoveries - Murder and theft case - Recoveries not made in presence of independent witnesses though available - Such recoveries cannot be considered by the court in evidence.
52. Before an accused can be convicted, the fact of death should be proved by such circumstance as render the commission of the crime morally certain and leave no ground for reasonable doubt. But on consideration of the evidence available on file, the prosecution could not connect the accused persons with the present case offence by leading cogent and reliable evidence. The eye witnesses could not give consistent statement in this case and even the chain of circumstances is not complete pointing the guilt of the accused persons. The IO of this case has not taken the opinion about the weapon of offence from the doctor whether such injuries can be possible by the recovered chhura while the recovery of chhura had been effected just after incident as alleged by the prosecution. Keeping in view the above discussions, I am of the view that the Investigating Officer of this case had left many lacunas and not investigated the case properly; the benefit of which ought to have been given to the accused persons. In case Law AIR 1974 SC 1822 it is stated in para 11 that : "The duty of the IO is not merely to bolster up a prosecution case with such evidence as may enable the State Vs.Virender Yadav etc FIR No.379/08 Page No. 45 of 48 court to record a conviction but to bring out the real unvarnished truth".
It is stated in AIR 1974 SC 1822 in para 11 that : "Duty of IO is not to bolster up a false case to record conviction"
Considering the evidence adduced by the prosecution in the present case in hand, it seems that the IO has only tried to bolster up the case of the prosecution and not brought the unvarnished truth before the court.
53. The burden of proof in a criminal trial never shifts, and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It is no doubt a matter of regret that a foul cold blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considering as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. In view of the above discussions as well as observation of the case laws, I am of the State Vs.Virender Yadav etc FIR No.379/08 Page No. 46 of 48 opinion that prosecution could not complete establish the guilt of accused persons in this case without any reasonable doubt by leading cogent and reliable evidence.
54. It is well settled principle of law in AIR 2003 SC 3609, State of Punjab Vs.Karnail Singh that : "Golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the views which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from the acquittal of the guilty is not less than from the conviction of an innocent".
55. In view of my above discussions, I am of the opinion that the prosecution could not establish the guilt of accused persons in this case by leading legal, reliable and unimpeachable evidence. I am unhesitatingly of the opinion that the prosecution has utterly failed in proving this case to fasten the guilt on the accused persons leaving no room for doubt. So, the prosecution has failed to prove its case against accused persons and the accused persons are entitled to be given the benefit of doubt. I therefore give the benefit of doubt to both the accused persons (1) Virender Yadav and (2) Naseem @ Sanjay Bildar and they are acquitted in this case from the charges framed against them u/s 394/302/34 IPC. Accused Virender Yadav is also acquitted for the commission of offence punishable u/s 25/27 Arms Act and accused State Vs.Virender Yadav etc FIR No.379/08 Page No. 47 of 48 Naseem @ Sanjay Bildar is also acquitted for the commission of offence punishable u/s 411 IPC. Both the accused persons are in JC. They be released from the jail forthwith if not required in any other case. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 22.10.2011 (SURESH CHAND RAJAN) ADDL.SESSIONS JUDGE Fast Track Court New Delhi and South East District NEW DELHI State Vs.Virender Yadav etc FIR No.379/08 Page No. 48 of 48