Delhi District Court
State vs . : 1) Narender on 18 August, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT,
ROHINI COURTS: DELHI
Sessions Case No: 194/17
FIR No. : 694/16
U/s : 302/147/148/149/120B IPC
P.S. : Bhalaswa Dairy
State Vs. : 1) Narender
S/o Sh. Vaishali Dass
R/o Jhuggi No.K-206/73,
K-Block,Jahangir Puri,
Delhi.
2) Bijender @ Vishnu
S/o Sh. Raj Kumar
R/o Kh.No.51, Gali No.13,
D-Block, Mukund Pur,
Part-I, Delhi.
3) Parveen
S/o Sh. Raj Kumar
R/o Kh.No.51, Gali No.13,
D-Block,Mukund Pur, Part-I,
Delhi.
4) Rahul
S/o Sh. Raj Kumar
R/o Kh.No.51, Gali No.13,
D-Block, Mukund Pur,
Part-I, Delhi.
5) Irshad @ Babloo
S/o Sh. Illyas
R/o Kh.No.51, Gali No.13,
D-Block, Mukund Pur,
Part-I, Delhi.
Permanent Address:
PS: Garhi Distt. Moradabad,
U.P.
Offence complained of : 302/147/148/149/120B IPC
State Vs. Narender etc. SC No:194/17 :: 1::
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 06.04.2017
Date of Judgment : 18.08.2018
JUDGMENT
1. On 30.12.2016 at about 11:30 am Chanchal had quarreled with Vikram and his companion on some issue. Chanchal told his mother Veena Devi in this regard. On the same day at about 9 pm when Veena Devi was preparing food in the kitchen and Chanchal was watching TV somebody knocked the door of their Jhuggi. Chanchal opened the door and Veena Devi also came out of kitchen. As soon as door was opened Vikram along with his companion Irshad @ Babloo, Vishnu, Rahul, Jaki, Kalu and other 5 - 6 persons entered their house. Vikram along with his co-accused started assaulting Chanchal with knives saying "Tujhe Aaj Nahi Chhodenge". Chanchal some how escaped from their clutches and ran but they again over powered him and stabbed him. Veena Devi requested them to leave her son but they said, "Aaj to Kaam tamaam karna hai" and they did not give any heed to her request. She raised alarm on which they fled away. In the meanwhile her two daughters Neelu and Sushma also reached there. Chanchal was taken to BJRM hospital where he was declared dead. Police was informed. Post State Vs. Narender etc. SC No:194/17 :: 2::
mortem on the dead body was got conducted. During investigation accused Narender, Bijender, Rahul, Parveen and Irshad were arrested. The other accused persons i.e. Vikram, Shiva, Kalu and 3 more boys could not be arrested. The accused persons got recovered dandas used in the commission of offence. Their wearing clothes were also seized. After completion of investigation the charge sheet against accused persons was filed before Ld. MM. Ld. MM after complying with the provisions of section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court. All the accused persons sent for trial were charged for the offences punishable u/s 147/148 and 302 IPC read with 149 IPC to which they pleaded not guilty and claimed trial.
Thereafter, case was fixed for prosecution evidence.
2. Dr. Manohar Lal was examined as PW-1. He visited the spot on 08.02.2017 i.e. H.No.1494, Street No.21 Mukandpur Delhi where complainant Veena Devi was present. On her pointing out he prepared the rough notes and took measurements. He prepared the scaled site plan on 09.02.2017 and proved the same as Ex.PW1/A.
3. During cross examination on behalf of accused Parveen, Rahul, Vishnu and Irshad he stated that two other persons was also present on the spot when he took the rough State Vs. Narender etc. SC No:194/17 :: 3::
notes but he does not know their names.
4. During cross examination for accused Narender he stated that they reached the spot in Govt. Vehicle. He does not know the registration number of the same. He denied the suggestion that he did not visit the spot or prepared the site plan Ex.PW1/A without visiting the spot.
5. Ms. Kadambari Awasthi was examined as PW-2. On 13.01.2017 she conducted the TIP of accused Vishnu, Narender, Parveen, Rahul and Irshad. The accused persons were produced muffled face. All the accused persons refused to join the TIP. They were warned that an adverse inference may be drawn against them on their refusal to participate in the TIP but none of them joined the TIP. She proved the record of TIP proceedings of the accused Parveen, Narender, Rahul, Vishnu @ Bijender and Irshad as Ex.PW2/A, 2/B, 2/C, 2/D and Ex.PW2/E. The testimony of witness has gone unchallenged and uncontroverted.
6. Dr. Anshul Saxena was examined as PW-3. On 31.12.2016 he conducted the post mortem on the body of Chanchal Mishra. He found 12 injuries in the external examination of the body. In the internal examination he found the penetrating injury to the right carotid artery and both the lungs. He opined that deceased died due to hemorrhage secondary to the injury to right carotid artery and lungs by a State Vs. Narender etc. SC No:194/17 :: 4::
sharp cutting /stabbing instrument. Injury No.3, 6, and 11 are sufficient to cause death in ordinary course of nature. The time since death between 12 to 24 hours at the time of post mortem examination. Clothes, blood sample in gauze piece were sealed and handed over to the IO along with sample seal. He proved the post mortem report as Ex.PW3/A. The testimony of the witness has gone unchallenged and uncontroverted.
7. Dr. Lokesh Dharwal was examined as PW-4. He deposed that on 30.12.2016 at 9:40 pm Chanchal son of Dalip Kumar 22 years was brought by Anchal brother with alleged history of physical assault. He examined the patient and declared him brought dead at 9:40 pm. He proved the MLC as Ex.PW4/A. The testimony of the witness has gone unchallenged and uncontroverted.
8. Dr. Nazir Khan was examined as PW-5. He deposed that on 30.12.2016 at 9:40 pm Chanchal S/o Sh.
Dalip Kumar 22 years was brought by his brother Anchal with alleged history of assault. The patient was declared brought dead. He examined the patient under supervision of Dr. Lokesh Dharwal PW-4. He also proved the MLC as Ex.PW4/A.
9. During cross examination on behalf of accused Narender he deposed that injuries on the body of deceased State Vs. Narender etc. SC No:194/17 :: 5::
are required to be mentioned by the forensic expert. As the patient was brought dead therefore, they did not mentioned the injuries in the MLC Ex.PW4/A.
10. Ct. Mahesh was examined as PW-6. He deposed that on 02.02.2017 he along with SHO Manoj Tyagi, HC Deepak, HC Satender driver Ct. Parveen Neelu Mishra went to BJRM hospital mortuary. IO collected the exhibits from the hospital. Thereafter, they reached Bhalswa Dairy Jheel Park. Neelu Mishra pointed out towards the group of 5 persons sitting in the park. All those 5 persons were apprehended and interrogated. Accused Parveen was arrested vide arrest memo Ex.PW6/A1 and his personal search was conducted vide memo Ex.PW6/A2. Accused Parveen made the disclosure statement Ex.PW6/A3. Accused Narender was arrested vide arrest memo Ex.PW6/B1 his personal search was conducted vide memo Ex.PW6/B2. He made the disclosure statement Ex.PW6/B3. Accused Vijender was arrested vide memo Ex.PW6/C1. His personal search was conducted vide memo Ex.PW6/C2. Accused Vijender made the disclosure statement Ex.PW6/C3. Accused Rahul was arrested vide memo Ex.PW6/D1, his personal search was conducted vide memo Ex.PW6/D2. Rahul made the disclosure statement Ex.PW6/D3. Accused Irshad @ Bablu was arrested vide arrest memo Ex.PW6/E1, his personal search was State Vs. Narender etc. SC No:194/17 :: 6::
conducted vide memo Ex.PW6/E2. Accused Irshad @ Bablu made the disclosure statement Ex.PW6/E3. Accused Parveen led them to Bhalswa Jheel Jungle near the boundary wall D- Block Mukandpur and produced one danda. It was wrapped in a cloth piece sealed with the seal of MKT given mark S3 and seized vide memo Ex.PW6/A4. Accused Narender also led them to Jungle and got recovered one danda. It was wrapped in a cloth sealed with the seal of MKT given mark S1 and seized vide memo Ex.PW6/B4. Accused Vijender led them to the Jungle got recovered one danda it was wrapped in a cloth piece sealed with the seal of MKT given sl.no.S2 and seized vide memo Ex.PW6/C4. Accused Rahul led them to the jungle, got recovered one danda, it was wrapped in the cloth sealed with the seal of MKT given sl.no.S4 and seized vide memo Ex.PW6/D4. Accused Irshad led them to the jungle got recovered one danda, it was wrapped in a cloth piece sealed with the seal of MKT given sl.no.S5 and seized vide memo Ex.PW6/E4. Accused Parveen produced his safari suit and blue colour jeans which he was wearing at the time of incident. The clothes were wrapped in a cloth piece sealed with the seal of MKT and seized vide memo Ex.PW6/A5. Accused Narender produced his wearing clothes, the same were also wrapped in a cloth piece sealed with the seal of MKT and seized vide memo Ex.PW6/B5. Similarly, the State Vs. Narender etc. SC No:194/17 :: 7::
accused Vijender, Rahul and Irshad also handed over their wearing clothes, those were wrapped in cloth pieces and sealed with the seal of MKT and seized vide memos Ex.PW6/C5, Ex.PW6/D5 and Ex.PW6/E5. He identified all the accused persons and also identified the danda got recovered by accused Parveen as Ex.PW6/Article1. The danda got recovered by accused Narender as Ex.PW6/Artice2. The danda got recovered by accused Vijender as Ex.PW6/Article3. The danda got recovered by accused Rahul as Ex.PW6/Article4. The danda got recovered by accused Irshad as Ex.PW6/Article5. However he could not identify the clothes that is one T-shirt and the sweater and a lower which were taken out from the cloth parcel. However, he identified the clothes of Rahul as Ex.PW6/Article7. Clothes of Irshad as Ex.PW6/Article8, clothes of Parveen as Ex.PW6/Article9 and clothes of Vishnu @ Vijender as Ex.PW6/Article10.
11. During cross examination on behalf of accused Narender he deposed that they reached the Jheel in Govt. Gypsy they left the police station at about 3:30 pm. They reached the Jheel within half an hour. The distance between Jheel and police station is about one kilometer. Neelu met them out side the gate of police station. Firstly they went to BJRM hospital and then they visit to the Jheel. No lady police official was with them. They entered the Jheel from the side of State Vs. Narender etc. SC No:194/17 :: 8::
Golf Course. 30 to 40 public persons were present in the park. There is a boundary of the park but no gate. IO asked 5-7 public persons to join investigation but none agreed. They entered the park at about 4 pm and remained their till 10 pm. He does not know if the clothes are ready made or stitched by tailor. He denied the suggestion that clothes produced are of common size or that the clothes are planted upon the accused persons. He denied the suggestion that accused Narender was lifted from his house. They reached the police station within 10 minutes of arrest and seizure from the accused persons. The seizure memos were prepared in the park by the IO. Accused Narender was arrested at about 4:25 pm.
12. During cross examination on behalf of remaining accused persons he stated that he does not remember the phone number of his mobile phone which he was using on 02.01.2017. He takes new mobile number after every three months. He does not know how Neelu reached outside the police station whether IO called her or she of her own reached there. They reached BJRM hospital at about 3:00 or 3:30 pm. IO along with HC Sikander went to the mortuary of BJRM hospital. They stayed out side the mortuary for 5 minutes. He denied the suggestion that they did not visit the morutary on 02.01.2017. they reached Jheel via Mukandpur chowk and reached there within 10-15 minutes from BJRM Hospital. The State Vs. Narender etc. SC No:194/17 :: 9::
vehicle was parked in front of golf course. The accused persons were sitting in the middle of the park. The accused persons were arrested between 4:15 to 5:25 pm. He denied the suggestion that accused persons were called in the police station on 30.12.2016 for the purposes of interrogation or that they were arrested in the PS. He denied the suggestion that accused persons were not arrested on 02.01.2017 or that false documents were prepared. He denied the suggestion that Neelu did not met them or that they did not visit BJRM hospital and the Jheel. His statement was recorded in the police station at about 10:30 or 10:45 pm. The exhibits PW6/D5, E5, A5 and C5 were signed by him in the police station. HC Sikander also signed the seizure memo of clothes in his presence. The seizure memos of dandas were prepared in the park in his presence and were signed by him in the park. He denied the suggestion that no proceedings were conducted in the park or that he did not sign any document. He does not know if the deceased was externed from Delhi.
13. Ct. Ravinder was examined as PW-7. He deposed that on 08.02.2017 he collected 22 sealed parcels and 2 sample seals from the MHC(M) for depositing the same in the FSL and obtained acknowledgement. He came back to the police station and handed over the copy of road certificate and acknowledgement of FSL to MHC(M). During the period State Vs. Narender etc. SC No:194/17 :: 10::
exhibits remained in his possession no one tampered the same in any manner.
14. During the cross examination nothing material came on record to discredit the witness.
15. ASI Rajbir was examined as PW-8. He deposed that on 30.12.2016 on receipt of call from control room at about 9:15 pm he along with Ct. Vikas photographer, ASI Prashant finger print proficient reached H.No.1494 D-block, street No.21, Mukandpur Part-1. SI Rohit, SHO Bhalswa Dairy and other staff met him there. He inspected the spot. Blood was found on the spot in the gallery, two clothes i.e. gamcha and one another cloth were found lying there, one jute bag was also there. He gave the mark A to the spot where blood was found. Thereafter, they went inside the room where there was blood. The same was marked B. There was one watch of fast track having blood stains and its strap was found broken.
The sample of blood and earth control were taken. Photographer took the photographs. He prepared his report Ex.PW8/A. They remained on the spot from 10 pm to 11:30 pm.
16. During cross examination by the defence he stated that brother of complainant was present on the spot but other family members were not present till the crime team remained there no family member of the complainant reached the spot State Vs. Narender etc. SC No:194/17 :: 11::
except brother of the complainant. Inside the room there was no person except the police officials.
17. During cross examination for accused Narender, brother of deceased was present inside the house, no other public person entered the scene of crime till they remained there. They reached the spot in Govt. Vehicle Mini Bus No. DL 1NE 3695. He denied the suggestion that he did not visit the spot.
18. Ct. Vikas was examined as PW-9. He was the photographer of the mobile crime team which visited the scene of crime on 30.12.2016. He took 42 photographs of scene of crime. He proved the photographs as Ex.PW9/A1 to A42. The CD of the photographs is proved as Ex.PW9/B. The certificate u/s 65B Evidence Act is proved as Ex.PW9/C.
19. During cross examination on behalf of accused persons except Narender he deposed that they reached the spot at 10:00 pm. Police officials SI Rohit, SHO and two beat staff were present there. SHO, SI Rohit and Crime Team entered the gallery and the room. Family members and neighbours were present outside the house but he does not know who were the family members and the neighbours. He denied the suggestion that he did not visit the spot.
20. SI Amrit Lal was examined as PW-10. On 30.12.2016 he was working as duty officer. He proved the State Vs. Narender etc. SC No:194/17 :: 12::
copy of FIR as Ex.PW10/B, the endorsement on the rukka as Ex.PW10/A. The certificate u/s 65B Evidence Act is proved as Ex.PW10/C. The testimony of the witness has gone unchallenged and uncontroverted.
21. Smt. Veena Devi was examined as PW11. She deposed that she had five children, two sons and three daughters. Smt. Pinki, Smt.Sushma and Ms. Neelu are her daughters. Chanchal (now deceased) and Aanchal are the sons. On 30.12.16 at 4-5 p.m. her son told him that he had a quarrel with Rahul, Babu, Vishnu, Irshad, Jackey, Kallu, Narender and Shiva during the day. Those persons quarreled with her son on the issue of selling ganja through police. On that day, due to illness her son could not go to sell ganja.
Vikram reached there to sell ganja. When her son came to know about this fact, he reached there and asked Vikram not to sell ganja otherwise how would he make payment to the police. On this issue a quarrel took place between her son and above named persons.
22. On the same day, at 9 p.m. Vikram, Shiva, Irshad, Jackey, Kalu, Babu, Rahul and Vishnu came to their house. Chanchal opened the door. Vikram started stabbing Chanchal and his other associates started beating Chanchal with lathis and dandas. She requested all of them with folded hands not to kill her son but they did not listen to her request and pushed State Vs. Narender etc. SC No:194/17 :: 13::
her aside. They continued beating her son. Her son escaped from the clutches of the accused persons and ran on the staircase. Vikram and Shiva stabbed on his back and neck. Accused persons also gaged Chanchal, so that he could not raise alarm. Chanchal fell down. All the accused persons fled away. At the same time her daughters Neelu and Sushma returned home. They had also seen accused persons running away from the house. Her son was initially removed in e- rickshaw and then in TSR to Jahangir Puri Hospital. Doctor examined him and declared him dead. She proved her statement Ex.PW11/A. She identified the accused persons Babu, Vishnu, Rahul, Narender and Irshad, present in the court correctly. Police also conducted proceedings at her house and took away the blood stained clothes i.e. cover of mattress, bed sheet, wrist watch, shawl, gamchha, towel and some other clothes. She stated that she is also receiving threats that if she deposed against them, they would kill her. Three accused Vikram, Kalu and Shiva yet not arrested. After 3-4 days of the incident, she also went to the police station where she identified the accused persons. Her daughters and son were also with her at that time. Once she along with her daughter Neelu came to the court where Neelu identified Juvenile 'J'. She also identified the case property i.e. jute bag as Ex.PW11/Article 1, towel and gamcha as Ex.PW11/Article State Vs. Narender etc. SC No:194/17 :: 14::
2, wrist watch of her son as Ex.PW11/Article 3, the mattress cover as Ex.PW11/Article 4 and clothes of her as Ex.PW11/Article 5. She deposed that on the way to hospital, her son and her husband were also with him in an auto rickshaw, Anchal talked with Chanchal. Chanchal also talked with his father, who told the name of assailants.
23. During cross examination for accused Narender, she denied the suggestion that she had week eye sight. In fact, she had correctly noticed the time in the clock installed in the court room which is at a distance of more than 20 feet on the asking of defence counsel. She denied the suggestion that on 30.12.17 there was no street light. The nearest street light pole from his house is after 5-6 houses. She was cooking food when the assailants entered their house. She cannot tell the exact time of assailants entering the house but it was between 8.30-9 p.m. She denied the suggestion that she was not at home or that she along with her daughters had gone to the market at that time.
24. On 30.12.17, her son Chanchal opened the door when assailants knocked at the door. When her son raised noise "Vikram bhai, Vishnu bhai kyu chaku maarte ho", she came to the room. Many boys were there. Some of them caught hold of her son and others were stabbing her son with knives. She requested them with folded hands not to stab her State Vs. Narender etc. SC No:194/17 :: 15::
son and took away whatever they want. She was pushed by those assailants due to which she fell down on the ground outside the house. She denied the suggestion she did not try to save her son. She did not sustain any such injury which require medical examination or treatment. She raised alarm. The neighbourers came out of their house. Some of the assailants were standing outside the house carrying dandas and therefore no neighbour came forward to save her son who was repeatedly stabbed inside her house by the accused persons. She admitted that her son Aanchal is facing criminal case of murder of Narender. She does not know if Narender son of Ram Kishan was also involved in the murder of Chanchal. She stated that her daughters and son might be knowing that Narender. She does not remember if she had seen accused Narender on the day of incident when they assaulted her son. Her son Chanchal was talking when he was taken to hospital in a TSR. She denied the suggestion that Chanchal died at home. She denied the suggestion that accused Narender is innocent. She identified accused Narender, who was present in her house on the day of incident. It was suggested to her that Narender son of Ram Kishan was involved in the murder of her son Chanchal. She stated that she is not blind that she cannot see the person who assaulted her son. At the entrance of her house, there is State Vs. Narender etc. SC No:194/17 :: 16::
CFL tube light and in the room there are big tube lights. She denied the suggestion that tube light installed in her house is not working or that it was blinking.
25. During cross examination by the counsel for remaining accused she deposed that on 30.12.16 at about 1 p.m. when she returned home, her son Chanchal told him about the quarrel which took place in the morning of 30.12.16. She denied the suggestion that all the sons of Raju along with Irshad left in the morning of 30.12.16 on tractor. She admitted that her daughter Neelu made call at 100 number about the quarrel which took place on 30.12.16 and police also came there. Police did not take any action against the persons who quarreled with her son Chanchal in the morning of 30.12.16. She denied the suggestion that Rahul, Parveen, Irshad @ Babloo were not in the quarrel, which took place in the morning of 30.12.16. She denied the suggestion that her son Chanchal was booked criminal of the area. She deposed that Vikram is the booked criminal of the area. There were 2-3 criminal cases against her son Chanchal but does not know if those cases were FIR No. 273/14 U/s 354/506/509/34 IPC PS Bhalswa Dairy, FIR No. 330/15 U/s 308/34 IPC PS Bhalswa Dairy, FIR No. 452/15, U/s 411 IPC PS Bhalswa Dairy and FIR No. 586/15, U/s 354/354-D/506 IPC and 12 POCSO Act Bhalswa Diary. She denied that her son was involved in State Vs. Narender etc. SC No:194/17 :: 17::
serious criminal offences or that accused persons did not kill her son or that she falsely implicated the accused persons. She admitted that her both daughters, husband and son are in jail in case of murder of a boy who used to deliver water. She admitted that no tenant was residing on the first floor and second floor of their house at the time of incident. She denied the suggestion that Vikram and Shiva did not give knife blows to her son. Police recorded her statement at her house. Police made inquires from her in the hospital but she was not able to tell all the facts in the hospital.
26. She denied the suggestion that none of the accused was standing outside her house with dandas in their hands or that she was not present at the scene of crime. Her daughter brought the battery operated rickshaw. Her husband reached home within five minutes of making call. She denied the suggestion that her daughter had not seen the assailants fleeing. She along with her daughter Sushma reached home at about 12.30 a.m. in the car of Advocate Basant. She does not know how the other family members reached home from the hospital. Her daughter Neelu, son Aanchal and husband Dilip reached home before her. Police remained at her house for about one or one and half hour. SHO took her thumb impression at about 2.00 a.m.
27. Aanchal Mishra brother of deceased was examined State Vs. Narender etc. SC No:194/17 :: 18::
as PW12. He deposed that on 30.12.16 at noon hours, he came to know that his brother Chanchal Mishra had a quarrel with Vikram, Rahul, Parveen, Vishnu, Bablu, Irshad and Kallu @ Sachin etc. After quarreling with them, his brother reached home. In the evening, he left his house for taking a walk. At about 9.15/9.30 p.m., he received call of his father who informed that Chahchal had sustained injuries. He reached Mukundpur Chowk where he saw his brother Chanchal being shifted to TSR from a battery rickshaw by his sisters Neelu, Sushma and his parents. He also boarded the same three wheeler. He asked his brother Chanchal as to who caused injuries to him. His brother replied, "Vikram, his brother Shiva, Vishnu, Rahul, Parveen, Irshad, Narender, Jackey, Kalu and 3-4 other associates, whose name were not known to him had caused injuries. They reached BJRM Hospital, where doctor examined his brother and declared him dead. At about 12- 12.30 midnight, he along with parents and sisters reached home. Crime team officials visited the scene of crime and inspected the same. Photographer took the photographs.
Police lifted the blood and articles from different places from the houses. His statement was recorded by the police at about 2.00-2.30 a.m. He identified all the accused persons present in the court.
28. On 31.12.16, he identified the dead body of his State Vs. Narender etc. SC No:194/17 :: 19::
elder brother in the mortuary vide memo Ex.PW12/A. After the postmortem, they received the dead body.
29. During cross examination for accused Narender, he deposed that he was present in the market about 500 meters away from his residence when he received information on his mobile phone that his brother Chanchal sustained injuries. It took him 3 to 5 minutes to reach Mukundpur Chowk. He cannot tell the exact time of their reaching the hospital. His brother told the names of accused only once on his inquiry. He admitted that his brother did not tell the fathers name of accused persons. He as well as his brother were knowing accused persons even prior to the incident. He admitted that his brother had not told the description of accused persons. He denied that Narender regarding whose death FIR No. 204/17 at PS Bhalaswa Dairy has been registered, was suspect in this case. After reaching the hospital, there was no movement in the body of his brother. He denied the suggestion that his brother did not tell the names of accused persons or that his brother had died before he reached Mukundpur Chowk. He denied the suggestion that Narender son of Ram Kishan was involved in the murder of his brother. He admitted that he is facing trial in the murder of Narender. He denied the suggestion that his brother told him that Narender son of Ram Kishan assaulted him. Neither he nor State Vs. Narender etc. SC No:194/17 :: 20::
his brother was knowing Narender son of Ram Kishan. His brother referred only the accused Narender facing trial in this case.
30. During cross examination for the remaining accused persons, he stated that he was not present when the quarrel took place in the morning on 30.12.16. His brother told him that Vikram, Narender and other accused persons whose name he told in his examination-in-chief quarreled with him. He admitted that accused Bijender, Parveen, Rahul and Irshad were in the quarrel which took place in the morning of 30.12.16. He knows accused persons as they are living near the house of his sister Sushma and they used to roam together. Accused persons also used to roam with his brother Chanchal. He cannot confirm if accused persons were friend of his brother Chanchal but he had seen the accused persons in the company of his brother. He denied the suggestion that his brother was a big criminal. He admitted that some FIRs were there against his brother. He denied the suggestion that his bother was dealing in ganja with Vikram, Shiva and Kalu or that his brother quarreled with Vikram, Shiva and Kalu on 30.12.16 due to ganja business. His father was also with his mother, sister and Chanchal when they met him at Mukundpur Chowk but he was confronted with his statement where this fact was not found mentioned.
State Vs. Narender etc. SC No:194/17 :: 21::
31. Ms. Neelu was examined as PW-13. She deposed that on 30.12.16 at about 11/11.30 AM she had gone to the matrimonial home of her sister Sushma, residing near Jagram Chowk. She and Sushma were sitting on the roof. She noticed that some boys were quarreling near the shop of Gupta Building Material and also noticed Vishnu, Rahul, Babu, Jacky and other boys carrying dandas and Sariyas etc. She was not knowing as to with whom they were quarreling. She made a call at 100 number from her mobile phone 7210...84. She also reached the place where the quarrel was going on and found that those boys were quarreling with her brother Chanchal. When she asked Chanchal as to why they were quarreling, Chanchal said, "Didi yeh Vikram Jahangir Puri ka BC hai selling ganja in this area using his name and today he has caught Vikram". She inquired from Vikram as to why he is using his name while selling ganja and bringing him bad name. In the mean while police also reached there and started beating the persons standing there. Sukhdev was among those police officials. He said to her not to make a call at 100 number for small issue and gave his mobile number to call him if there is any issue. Police officials made Vikram to run away and also asked Chanchal to flee. When she asked the police person as to why Chanchal to run away and arrest him, if he is doing wrong on which Chanchal said to her, "he is State Vs. Narender etc. SC No:194/17 :: 22::
giving money to the police officials and they will not arrest him". Thereafter Sukhdev asked Chanchal to flee or he be arrested on which Chanchal fled away. She returned to the matrimonial home of her sister Sushma.
32. Vishnu, Rahul, Babu and Jacky are having their houses opposite to the matrimonial home of Sushma. She heard them talking, "Abhi to chala gaya hai mare gey usko". She told this fact to Sushma and then they both came to their house. Chanchal was at home. They talked with Chanchal, they took Chanchal to the house of Vishnu, where Chanchal touched the feet of mother of Vishnu and tender apology. Mother of Vishnu said, "Chalo theek hai baat khatam ho gayi". Thereafter they returned home. Chanchal did not accompany them and went on bike with some boys.
33. In the evening at about 7/7.30 PM she along with her sister Sushma went to the market. At about 9/9.30 PM when she and Sushma were coming back, she saw a large crowed in the street. Babu, Rahul, Jackey, Kalu and Shiva were standing outside their house having dandas and knives. On seeing them she and Sushma started running to reach their house. On this accused persons said, "bhaag bhaag". She saw Shiva, Vikram, Vishnu and Narender coming out of their house. Vishnu and Vikram were having knives in their hands. Narender was having Sariya in his hands. They raised State Vs. Narender etc. SC No:194/17 :: 23::
alarm but all accused fled away. She entered the house and found blood are all over the house. Chanchal was lying on bed in the outer room and bleeding. Her mother was sitting near Chanchal and weeping. Some public person called the e- rickshaw. She with the help of mother and Sushma shifted Chanchal to e-rickshaw and reached the chowk. From the Chowk, they hired one TSR. Anchal met them at the chowk and accompanied them to BJRM hospital. On the way to the hospital, her father also met them and sat in the same rickshaw. In the hospital Chanchal was declared dead. On the way to the hospital Chanchal told them that Vikram, his brother Shiva, Narender (brother-in-law of Vikram as told by Chanchal), Vishnu and some other boys of Jhangir Puri assaulted. He also told that Vishnu and Vikram gave him knife blows. Jacky, Rahul and Praveen caught hold of him. Chanchal told them that they were 10-15 boys. Chanchal also told that some of them were resident of Jahangir Puri and some are resident of Mukandpur. Rahul, Babu, Vishnu and their servant Irshad, Narender and Bablu arrested by the accused. She correctly identified Rahul, Babu, Vishnu, Irshad and Narender.
34. During cross examination for accused Narender, she deposed that it was Friday on that day. She went to the Friday market with her sister. It takes 30 minutes to reach the State Vs. Narender etc. SC No:194/17 :: 24::
market on foot. Presently she is lodged in Tihar Jail in murder case of Narender. The mobile phone number which she used was taken by her about one or one and half years prior to incident. She denied the suggestion that she falsely named Narender in this case. She denied the suggestion that it was dark in the street. She deposed that there was light after 2-3 houses from there house which was on at that time. She remained for less than 5 minutes at their house when she saw Chanchal in injured condition. Chanchal was speaking at that time. She does not know the name of the person, who drove the e-rickshaw. She admitted that public persons were present in the street. It took 20-25 minutes to reach the hospital but she can not tell the exact time of reaching the hospital. None of the accused was having blanket or shawl wrapped around him. She denied the suggestion that she was not present at home at the time of incident or that she was tutored before giving the statement. Ld. Defence counsel asked whether she tried to stop the assailants or hit the assailants and she answered that on seeing her the accused persons, who were standing outside her house started running raising alarm and before she reached the entrance of her house, the other accused, who were inside the house also came out and started running. He denied the suggestion that she had seen the assailants while running or that she had not seen the State Vs. Narender etc. SC No:194/17 :: 25::
assailants. Ld. Counsel asked if Narender son of Ram Kishan in whose murder case she is in jail was involved in the present incident and she stated that she had not seen that Narender. She had seen the accused Narender facing trial in this case on the scene of crime.
35. During cross examination by Ld.Defence Counsel for the remaining accused persons, she deposed that in the quarrel which took place in the market on 30.12.16, no Friend of Chanchal was present with Chanchal. She does not know if Chanchal used to sell ganja at the instance of HC Kuldeep and Ct. Deepak. She denied the suggestion that her brother used to sell ganja along with Vikram, Shiva and Kalu. She stated that Vikram used to sell ganja using the name of her brother. She admitted that 7210171384 is her mobile phone number. She admitted that she told the police at 100 number that, "jhagra ho raha hai, bahut sare log ikatha hai, log danda sariya lekar ja rahe hai kisi ko maarne ke liye". She denied the suggestion that she along with her brother Chanchal came there armed with danda. Police official reached there on two bikes.
36. Ld. Counsel asked as to why her brother tender apology to mother of Vishnu and she stated that she asked her brother to tender apology and if he will not tender apology, those person will again beat him on which her brother State Vs. Narender etc. SC No:194/17 :: 26::
tendered apology. She denied the suggestion that accused persons were not in the quarrel which took place in the morning of 30.12.16.
37. She admitted that there was one case in which her brother was involved. She denied the suggestion that she along with her mother went to the market and not with Sushma. She denied the suggestion that she and her family members had bad relations with all the neighbors. She had seen the mud on the forehead of her mother. On inquiry her mother told that she was assaulted with the gamla of Tulsi. She denied the suggestion that her brother was expired before reaching hospital or that she did not make a call at 100 number. One male neighbor informed her father about the incident whose name and mobile number she can not tell. She admitted that her father was not at home and also did not reach home. He met on the way to hospital. She denied the suggestion that Mr. Basant tutored them to concoct the story or that she planted the blood in her house.
38. All the five accused persons were apprehended near Bhalswa Jheel. She was not knowing that accused persons were present at Bhalswa Jheel. They were just going in said direction when she saw accused persons sitting over there and pointed out to the police. She denied the suggestion that none of the accused was apprehended or arrested on State Vs. Narender etc. SC No:194/17 :: 27::
02.01.17. All the police officials accompanying her were in police uniform.
39. Dalip Mishra was examined as PW-14. He deposed that on 30.12.2016 his daughter Neelu informed him that Vikram, Rahul, Irshad, Kalu, Jackie, Shiva had a quarrel with her son Chanchal in the noon hours and she also made a call at 100 number. Police arrived there but did not arrest those persons and made his son to flee. He returned home at about 12:00 /12:30 pm from the house of his friend situated in Azad Pur. At about 1:30 pm he left home for his duty at Golf course Bhalswa Jheel at a distance of about 100 to 150 meters from his house. At about 9:00 pm one neighbour informed him on telephone that some boys entered his house and giving beatings to his son. He came running to the home and also made a call at 100 number from his mobile phone. He was having mobile phone Nos.9958853362 and 9718961359 when he reached home his neighbour told him that his son had already been taken to the hospital by his family members. He also made a call to Anchal and informed him about the incident. Anchal told him that he is reaching Mukandpur chowk. He went running and reached Mukandpur chowk. He noticed that his son is taken by his family members in e- rickshaw and from Mukandpur chowk they hired one TSR. They shifted Chanchal in TSR and took him to BJRM hospital. State Vs. Narender etc. SC No:194/17 :: 28::
On the way he and Anchal asked Chanchal as to who has caused injuries to him. Chanchal told them that Vikram, Vishnu gave injuries to him with knife. At that time 2-3 more boys were catching hold of him when he asked him to tell the names of those boys Chanchal told the names as Shiva, Jackie, Rahul, Narender (brother-in-law /brother of wife of Vikram), Bablu, Irshad and Parveen. He (Chanchal) also told that he does not know if anybody was standing outside the house also. In the hospital doctor examined his son and declared him dead. In the hospital Inspector Manoj and senior police officials met him and he told the Inspector that his son would have been saved if police had arrested the assailants during day time when his daughter Neelu made a call at 100 number. Inspector Manoj and the lady official assured him that they will take action. His daughter Neelu went home along with the police. Lateron he and other family members also reached home. Police inspected the scene of crime and recorded statement of his wife. Next day he identified the dead body of his son vide memo Ex.PW14/A. Inspector Manoj lateron told him that he should not have told in the presence of senior police officials that in the day also call was made at 100 number and if the police had taken action at that time, incident had not taken place. He identified all the accused persons correctly.
State Vs. Narender etc. SC No:194/17 :: 29::
40. During cross examination on behalf of accused persons except Narender he deposed that on 30.12.2016 he was performing duty as watchmen and his duty hours were from 2 pm to 10 pm. He is working in a private company. His attendance is maintained in the register. When he joined his duty he made his attendance but there is no requirement of marking attendance at the time of leaving the duty. When his duty is over he has to inform the supervisor. On 30.12.2016 he left golf course at about 9 pm. He left after informing the guard Sanjay.
41. He does not know if his son had quarreled with Kalu on the issue of selling drugs. He denied the suggestion that his son used to sell Ganja. He also denied the suggestion that his son had occupied the farm house of Sujit @ Mulla and from there he used to sell Ganja. He admitted that his son had a quarrel at the farm house of Sujit @ Mulla in the morning. He does not know the time when his son had the quarrel. He does not know if Vikram and Shiva had gone to farm house of Sujit for selling Ganja and on this issue his son quarreled with them. He admitted that his daughter made a call at 100 number with respect to the quarrel which took place in the morning as told by his daughter. He denied the suggestion that his daughter went there with some boys in the morning hours. He does not know if any call from mobile State Vs. Narender etc. SC No:194/17 :: 30::
no.99588516283 was made to the police, before his daughter made a call. He came to know about the quarrel at about 12:00 or 12:30 pm. He did not visit the place of quarrel after coming to know of the same. He did not lodge any complaint with respect to the quarrel which took place in the morning hours.
42. After taking bath and meal he left for performing his duty as a watchmen at Golf Course. He marked his attendance there. The incident in the night took place between 8:45 to 9:00 pm as told by him to his children. Lalit informed him about the quarrel which took place in the night hours. He is not able to recollect the father's name of Lalit and his mobile number. He denied the suggestion that his son was scoundrel and habitual criminal. He does not know if there was an externment order against his son. There was one FIR against him but he is not aware if other FIRs were also registered against him. He denied the suggestion that due to criminal activities of his son he was having animosity with many persons of the area. He denied the suggestion that his son was killed by some other persons. He admitted that from the Golf course he directly reached his house on 30.12.2016. Police did not record his statement, or police made inquiries from him. He denied the suggestion that he has falsely implicated the accused persons in order to settle personal State Vs. Narender etc. SC No:194/17 :: 31::
revenge against accused persons except Narender. He denied the suggestion that he has concocted a story. From the hospital he returned home at about 12:00 midnight or 12:30 am in an auto. First of all his daughter Neelu reached home along with the police perhaps ACP or DCP. Neelu came on the motorcycle of neighbour KP who is residing in the adjacent house. Police recorded the statement of his wife at home after 12:30 am next day.
43. His house is triple storey. They were residing on the ground floor and first floor was rented out to their neighbour and second floor was lying vacant. The tenant used to come at 9 am in the morning and leave at 5 pm after locking the same. The tenant was residing in the neighbourhood. On 30.12.2016 also the tenant closed the first floor at 5 pm and left. Lalit is his tenant. No rent agreement was executed.
44. Police left their house at about 2:30 or 3:00 am. He could not see if the police sealed the exhibits lifted from the scene of crime. Police did not obtain his signature on the seizure memos.
45. During cross examination for accused Narender he stated that he and his son Anchal were sitting with the driver in the TSR, his wife, daughters were on the rear seat holding Chanchal. His son was not crying but was talking. His son told the names of the accused persons repeatedly when he and State Vs. Narender etc. SC No:194/17 :: 32::
Anchal asked him. Chanchal also told them that Vikram is resident of Jahangir Puri and Narender is his brother-in-law. He does not know how many children Vikram is having and also does not know the name of wife of Vikram. He denied the suggestion that he has falsely implicated Narender. He admitted that he is presently lodged in Jail in case FIR No.204/17 PS: Bhalswa Dairy. He denied the suggestion that some other Narender killed his son Chanchan and not the Narender facing trial. He denied the suggestion that he named Narender in the court at the instance of his wife and daughter. His son keep on talking with them till the gate of the hospital. He denied the suggestion that his son expired at home. He cannot tell what is the distance between Mukandpur chowk and the hospital.
46. Sushma was examined as PW-15. She deposed that on 30.12.2016 she was present at home. Her sister Neelu was also there. At about 10:30 or 11:00 am they were present on the roof of the house. They heard the sound of quarrel and noticed that quarrel is going on in the street. She noticed that quarrel is going on in the street. She noticed that Vishnu, Irshad, Parveen, Babu @ Bijender, Rahul and Jackie were running towards the place where the quarrel was going on with dandas and sarias. Neelu made a call at 100 number. Thereafter she along with her sister Neelu and mother-in-law State Vs. Narender etc. SC No:194/17 :: 33::
reached the place. They found that quarrel was going on with her brother Chanchal. They scolded the Chanchal in the meanwhile police reached there. One Sardar police official came there and said "Chhoti moti ladai mein 100 pe call mat kiya karo". He also said that "Tumhara Bhai ladtha, Jhagarta rehta hai aur tum 100 number pe call kar dete ho". They asked police officials that if their brother and the boys with whom he was quarreling they told the police officials that their brother and the boys with whom he was quarreling both are yet them arrest them. Police officials asked both Chanchal and Vikram to flee from the spot. He also made the other boys who came there to flee. She along with her sister Neelu reached home. Her parents Chanchal met them there. She asked Chanchal not to fight in the area of her matrimonial home and also asked Chanchal to tender apology to the family of Raju septic tank wale. Chanchal went to the house Raju Septic Tank wale and tendered apology. At that time Vishnu, Irshad, Vikram, Jackie said "tuney hamari bejjati ki hai tujhe chhodenge nahi". After tendering apology her brother went home and she returned back to her matrimonial home.
47. She corroborated the testimony of her sister Neelu that they went to the market and came back and at that time they saw the accused persons. She noticed 4-5 boys standing outside the house. She heard the sound of cries coming from State Vs. Narender etc. SC No:194/17 :: 34::
the house. When she and Neelu reached the door of their house. Some person said "oye bhag-bhag". 4-5 boys came out from the house. Those persons were Vikram, Shiva, Vishnu, Jackie, Kalu. Vishnu and Vikram were having knives in their hands. The other boys were having dandas in their hands. Narender was standing outside the gate of our house with danda in his hand. Irshad was also standing outside the house with 2-3 boys but she does not know their names. Those boys fled away in different directions. In the house blood was lying everywhere. His brother was on the ground and his mother was trying to shift him to takhat. There were injuries on the body of his brother and was bleeding. They tied Chanchal in one bed sheet. In the meanwhile one neighbour brought e-rickshaw. They took Chanchal in that e-rickshaw upto the chowk from there they hired a TSR to BJRM hospital. Her younger brother Anchal and father also reached there. While they were in e-rickshaw she inquired from the Chanchal as to who caused injuries to him. Chanchal told her that Vikram, Vishnu, Shiva, brother-in-law of Vikram i.e. Narender, Jackie, Kalu, Rahul, Irshad caused injuries to him due the incident happened during day time. Her father and brother also inquired from Chanchal as to who caused injuries to him and he told the same facts to them also. In the hospital his brother was examined and declared dead.
State Vs. Narender etc. SC No:194/17 :: 35::
48. During cross examination for Narender she deposed that police had not recorded her statement till date. At about 9:30 pm she was going to her house from market. They left the home for going to friday market at about 7:30 pm. They were on foot. There is electricity pole in front of their house and there was light on the road. She and her sister were together when they reached in the street. There was crowd in the street and neighbours were standing outside their houses. She was not taking woolen shawl at that time. She has not counted the assailants but they may be 8 to 10 persons. The assailants were carrying dandad, cricket wickets, Saria but she cannot tell the length. Narender was carrying saria. Irshad was carrying saria and others were carrying dandas. She with the help of mother and sister put Chanchal in e-rickshaw. Her sister brought e-rickshaw. They reached upto Mukundpur chowk near Nalah in e-rickshaw. Thereafter, her brother was shifted in TSR for going to hospital. Her mother, she herself and her sister were on rear seat with injured brother. Her father and brother were sitting with TSR driver. Her brother Chanchal expired in the hospital and not at home. She returned home in the car of Basant uncle. She cannot tell the time when she reached home. Many persons were present outside their house but she cannot tell their names. She denied the suggestion that she was weeping State Vs. Narender etc. SC No:194/17 :: 36::
therefore, she cannot identify the assailants. She stated that she was weeping when she reached home after knowing that her brother had expired. Her brother was talking with her in the TSR. She does not know the name of wife of Vikram, his children and relatives. Her brother told the names of assailants but did not reveal the parentage. She denied the suggestion that her brother did not tell the name of the any person.
49. She had only heard the voice Bhag -bhag but she had not seen the face of the assailants who had said these words.
50. During cross examination for remaining accused persons. She admitted that her brother had quarrel with Vikram, Shiva, Vishnu, Irshad, Parveen, Babu @ Bijender, Jackie and Narender. She does not know what was the reason of quarrel. She denied the suggestion that Parveen and Irshad were not present in that quarrel or that at that time Parveen and Irshad were in Bhalswa in Shradanand colony. She denied the suggestion that her brother and sister Neelu armed with dandas reached there to quarrel with Vikram, Shiva and Kalu. She also denied the suggestion that her brother Chanchal was in illegal possession of farm house of Sujit @ Mulla. She denied the suggestion that her brother Chanchal used to sell ganja. She does not know if there was State Vs. Narender etc. SC No:194/17 :: 37::
any externment order against her brother Chanchal. She denied the suggestion that from mobile phone no.9958516283 accused Rahul made a call at 100 number against her brother Chanchal and sister Neelu and friends of Chanchal before Neelu made a call at 100 number. She denied the suggestion that she did not visit the place of quarrel which took place in the morning on 30.12.2016. The police officials came there on a bike and not on gypsy. She does not know the names of those police officials but one of them was Sikh. There was old injury mark on the face of her brother on the left side. She denied the suggestion that there were many FIR's against her brother. She denied the suggestion that there were many enemies of her brother due to his criminal record. She denied the suggestion that some other persons killed her brother due to animosity. She stated that the accused persons killed her brother. They asked the police to arrest all of them but they said "choti moti baat pe 100 number par call mat kiya karo". She denied the suggestion that no police officials reached the place where quarrel took place on 30.12.2016.
51. When she reached matrimonial home she heard Vikram and other accused persons talking with each other that ladai abhi khatam nahi hui hai sham ko phir maarenge. On hearing this she went to the house of her parents. She did not make a call after hearing this. She denied the suggestion that State Vs. Narender etc. SC No:194/17 :: 38::
after the quarrel Vikram had gone to Jahangir puri. She stated that all the accused persons were sitting on the chair at the house of Vishnu after the quarrel.
52. She denied the suggestion that on 30.12.2016 at 7 pm she was present at her matrimonial home. She also denied the suggestion that she had not gone to the market along with her sister in the evening on 30.12.2016 or was present at her matrimonial home or that she cooked up a story going to the market at 7:30 pm. She denied the suggestion that only Neelu and her mother had gone to the market. Her mother was at home and she along with Neelu went to the market. They returned home between 9 to 9:30 pm from the market. She denied the suggestion that their tenants killed her brother. She admitted that her mother was not medically examined.
53. She did not try to catch hold of any of the assailants as they fled away when she reached the door of her parents. She cannot tell the name of the neighbours who helped them in removing Chanchal to e-rickshaw. Her sister Neelu brought the e-rickshaw of some neighbour. While they were shifting Chanchal from e-rickshaw to TSR her father and brother reached there. She denied the suggestion that Chanchal had expired at home or that chanchal did not tell the names of assailants. She cannot tell the time of reaching the hospital. State Vs. Narender etc. SC No:194/17 :: 39::
Statement of her mother was recorded at home. She and her mother reached home at 12:00 midnight. She was knowing accused Bijender @ Vishnu, Parveen, Rahul and Irshad prior to the incident as their residence is in neighbourhood of her matrimonial home. She denied the suggestion that her husband and her brother were having enemity with the accused persons or due to that reason she has falsely implicated them. She was not using the mobile phone at the relevant time. She does not know where Basant uncle reside. Police was already at home when she along with her mother reached home. She did not count the number of police officials. She denied the suggestion that she falsely named the accused persons.
54. Pawan Kumar was examined as PW-16. On 30.12.2016 at about 9:20 pm after getting information that son of the caller had been stabbed at Mukandpur D-Block Part-I, he along with SI Rohit made a call on the phone of caller who informed that they are taking the injured to the BJRM hospital. He along with SI Rohit reached BJRM hospital. In the hospital they came to know that doctor had declared Chanchal Mishra dead. On formal inspection of the body they found that Chanchal Mishra had suffered sharp edged injuries over his back below neck on shoulder as well as by the side of his ear. SI Rohit collected the documents from the hospital and body State Vs. Narender etc. SC No:194/17 :: 40::
was shifted to the mortuary. SI Rohit recorded the statement of Smt. Veena Devi, made endorsement and handed over the rukka to him. He took the rukka to the police station and handed over to the duty officer who registered the FIR. After getting the FIR registered he came back to the spot and handed over the original rukka and copy of FIR to SI Rohit.
55. During cross examination on behalf of accused Narender be deposed that they reached hospital in private car of SI Rohit. He did not count the number of relatives of deceased present in the hospital. He denied the suggestion that Veena Devi had not made any statement to SI Rohit or that no rukka was prepared by SI Rohit in the hospital or that the same is ante dated or ante timed.
56. During cross examination on behalf of remaining accused persons. He deposed that duty officer informed him about the information received. He had not seen the father of deceased in the hospital. He denied the suggestion that Veena Devi had no concern with the occurrence or that she has been falsely introduced as a witness in this case.
57. HC Sukhdev Singh was examined as PW17. He deposed that on 30.12.2016 at about 9:30 pm he received information that one Chanchal Mishra had been stabbed at D-
Block Mukandpur. On this information he reached street No.21 Mukandpur Part-I. There he came to know that 10-12 boys State Vs. Narender etc. SC No:194/17 :: 41::
had assaulted Chanchal Mishra with knife after entering into the house. He also came to know that Chanchal Mishra had been taken to the hospital by the family members. He found blood lying inside the house of Chanchal Mishra. He preserved the place of occurrence and made inquiries from the residents of the street. He came to know that one boy namely Vikram residing in the vicinity along with his associates i.e. Parveen, Rahul, Jackie, Bijender @ Vishnu and 5-6 other boys assaulted Chanchal Mishra with knives. In between 10:15 to 10:30 pm Inspector Manoj Tyagi along with staff reached there. Inspector Manoj Tyagi also inspected the scene of crime. Crime team was called. Incharge crime team inspected the place of occurrence and the photographer took the photographs. Blood was lifted with the help of cotton gauze from the outer room and from the gallery kept in separate plastic containers sealed with the seal of MKT and given sl.no.A and A1. Inspector also lifted one towel and one gamchha having blood stains put those in cloth parcels, sealed with the seal of MKT. Thereafter, Manoj Tyagi lifted one jute bag having blood stains. Put it in a cloth parcel sealed with the seal of MKT. One mattress having cover was lifted from Dewan, put in a cloth parcel, sealed with the seal of MKT. Inspector Manoj Tyagi also lifted the blood stained earth and the earth control and put those in a plastic container, sealed State Vs. Narender etc. SC No:194/17 :: 42::
them with the seal of MKT and marked B, B1 and B2. One wrist watch make fast track with broken strap was found. It was put in a cloth parcel and sealed with the seal of MKT. Seal after use was handed over to HC Sikander. All these exhibits were seized vide memo Ex.PW17/A to Ex.PW17/I. Inspector Manoj recorded the statement of Veena Devi as well as statement of other witnesses. IO prepared the rough site plan. He also identified all the articles.
58. During cross examination he stated that he reached the spot in between 9:45 to 10:00 pm. He had not recorded the statement of any public witness. He denied the suggestion that he did not receive any such information. He cannot tell the names of those public persons who told him the names of the assailants. He found about 50 to 60 persons gathered in the street. He denied the suggestion that no such exhibits were lifted from the scene of crime. During cross-examination on behalf of remaining accused persons he deposed that on 30.12.2016 between 11:00 am to 1:00 pm a quarrel took place on Jheel road near Mukandpur, Shukla Colony. He does not know if two calls were made at 100 number regarding this quarrel. PCR did not reach the place of quarrel in his presence. He admitted that there was an externment order against the deceased. He denied the suggestion that he made Anchal Mishra and Vikram to run away from the place of State Vs. Narender etc. SC No:194/17 :: 43::
quarrel before the arrival of PCR. He did not meet any girl by the name of Neelu Mishra. Many public persons were present there and hence he does not know if Neelu Mishra was present in those public persons. He reached the spot at about 10 pm. No family member of deceased was present at the spot when he reached there. He does not remember if any family member of deceased accompanied SHO and other staff. He came to know the names of assailants from the public persons who were there. SHO was informed about the names of assailants by the relatives of the deceased. Crime team reached the spot at about 12:45 or I:00 am on
31.12.2016 and remained on the spot for about 45 min to 1 hour. He denied that he signed on the blank papers which were lateron converted into seizure memos.
59. HC Sikander was examined as PW-18. He was working as MHC(M) and proved the entries in register No.19 as Ex.PW18/A to Ex.PW18/C. On 08.02.2017 twenty two exhibits were sent to FSL vide RC No.242/21/17 through HC Ravinder. The photocopy of the RC is proved as Ex.PW18/D. HC Ravinder after depositing the case property in FSL returned to the police station and handed over the acknowledgement to him. The photocopy of the acknowledgement is proved as Ex.PW18/E. He deposed that nobody tampered with the case property till the same State Vs. Narender etc. SC No:194/17 :: 44::
remained in his possession.
60. With the permission of the court APP put leading questions to the witness. Wherein he stated that on 30.12.2016 he reached the house No.1494 street No.21 Mukandpur Part-1 after getting information where Inspector Manoj Kumar also reached. He corroborated the testimony of PW-17 regarding lifting of the exhibits from the spot. He also deposed that on 02.01.2017 at about 3:30 pm he joined the investigation with IO, Neelu Mishra, HC Mahesh, HC Deepak and deposed about the arrest of accused persons from Bhalswa Jheel area and the recovery of the sticks at their instance from the bushes and seizure of their clothes. He had identified the accused persons and also the case property.
61. During cross examination for accused Narender he denied the suggestion that he did not join the investigation or that the sticks were planted upon the accused persons. He also denied the suggestion that clothes of some other persons were planted upon the accused persons. On 02.02.2017 they were in Govt. Gypsy. No lady police official was with them. Neelu Mishra accompanied them from the police station. He does not know how Neelu Mishra reached the police station, whether she reached there of her own or was called. They reached Bhalswa Jheel at about 4 pm. The Govt. vehicle was left in the parking of Bhalswa Jheel. He signed 21 documents State Vs. Narender etc. SC No:194/17 :: 45::
during investigation. The dandas recovered were sealed at about 5:30 pm on the spot of recovery itself. IO requested 2-3 public persons to join the investigation but none agreed. They remained at Bhalswa Jheel till 6 pm and thereafter they all 10 persons returned to the police station in the same Govt. Gypsy. They reached police station at about 6:30 or 6:45 pm. He denied the suggestion that none of the accused was found near Bhalswa Jheel. He denied the suggestion that Narender was lifted from his house or that he is innocent and has been falsely implicated.
62. During cross examination on behalf of remaining accused he deposed that they reached the place of incident at about 10:15 pm on 30.12.2016 HC Sukhdev was with him. SHO reached there after 5 - 10 minutes of their reaching at the spot. He remained outside the house. 15 to 20 public persons were there but he does not know if any family member of deceased was there. He entered the scene of crime along with SHO. Crime team reached the spot after about 30 minutes of arrival of SHO. No public witness was joined at the time of seizure of exhibits from the scene of crime. He denied the suggestion that before seizing all the articles from the spot they had also taken blood from the spot in another container. They remained at the spot till 2:00 am. Family members of the deceased also came on the spot while State Vs. Narender etc. SC No:194/17 :: 46::
they were on the spot.
63. On 02.01.2017 they reached BJRM hospital at about 3:45 pm. They remained in the mortuary of BJRM hospital for 4-5 minutes. From the mortuary of BJRM hospital they reached Bhalswa Jheel in search of accused persons. He denied the suggestion that accused persons were not arrested from the place as deposed by him or that on 30.12.2016 HC Sukhdev called Parveen, Bijender, Rahul and Irshad to police station for interrogation or that they were arrested in the police station on 30.12.2016. He denied the suggestion that fair investigation was not carried out or that the dandas were planted upon the accused persons. Neelu left the spot after the arrest of accused persons i.e. 5:20 pm. He was using mobile No.8447550653 at the relevant time.
64. Sh. Naresh Kumar Sr. Scientific Officer Biology was examined as PW-19. He conducted the biological and DNA finger printing examination on the exhibits and proved the report as Ex.PW19/A and Ex.PW19/B. Nothing material came on record to discredit the witness during the cross examination by accused persons.
65. Inspector Manoj Kumar was examined as PW-20. He deposed that on 30.12.2016 he received message from duty officer at about 9:30 pm about the stabbing incident. In the meanwhile he received information from BJRM about State Vs. Narender etc. SC No:194/17 :: 47::
admission of Chanchal there. He along with staff reached BJRM and found that Chanchal Mishra has been declared dead. SI Rohit along with staff was already present there. He collected MLC and other documents of Chanchal and came to the spot. He corroborated the testimony of PW-17 regarding seizure of exhibits from the spot. He prepared site plan Ex.PW20/A at the instance of Veena Devi. He recorded statement of Veena Devi and other witnesses u/s 161 Cr.PC. He searched for the accused persons but they could not be found. On 31.12.2016 he went to the mortuary where dead body was identified by Dalip Mishra and Anchal Mishra vide memos Ex.PW12/A and Ex.PW14/A respectively. He prepared the inquest papers Ex.PW20/B and Ex.PW20/C. He moved application Ex.PW20/D for conducting post mortem. After the post mortem dead body was handed over to the relatives. He corroborated the testimony of PW-6 and PW-18 regarding the proceedings conducted on 02.01.2017 with respect to arrest of accused persons, recovery of weapon of offence and seizure of cloth of accused persons on 13.01.2017. He moved application for TIP of accused persons but all the accused persons refused to join TIP. The proceedings are already Ex.PW2/A to Ex.PW2/E. On 08.02.2017 he sent the exhibits to FSL through Ct. Ravinder. He got prepared the scaled site plan through Inspector Manohar Lal. He collected report of State Vs. Narender etc. SC No:194/17 :: 48::
Incharge of Crime team. He identified all the accused persons and also the case property.
66. During cross examination for accused Narender he deposed that on 02.01.2017 they left the PS at 3:00/3:30 pm. They were in government Gypsy with Neelu Mishra. They reached Bhalswa Jheel at about 4:00 pm. They remained at Bhalaswa Jheel till 5:00/5:30 hrs. They reached police station at 10:00 / 10:15 pm. He denied the suggestion that dandas were planted upon accused persons or blood was also planted upon the clothes or dandas. He denied the suggestion that clothes of some other persons was planted upon Narender. He tried to join public witnesses but none agreed. He denied the suggestion that Narender who was murdered in FIR No.204/17 was registered at Bhalswa Dairy was the accused in this case and not the present accused.
67. During cross-examination for the remaining accused persons he admitted that there was an externment order against the deceased. Call about the quarrel which took place in the morning on 30.12.2016 was received but he came to know about the quarrel only after about incident of murder. He does not know if the PCR van reached the place of quarrel which took place during day time on 30.12.16. He denied the suggestion that he planted Veena Devi in this case. He did not record the statement of any witness from the family of State Vs. Narender etc. SC No:194/17 :: 49::
deceased in the hospital on the day of incident. He remained in BJRM for about 5 to 10 minutes. It took him 5 to 7 minutes to reach place of occurrence from BJRM hospital. No family member of deceased was there when he reached place of incident. However, public persons were present. He tried to join neighbor in the investigation but none agreed. He did not take any action against public persons who refused to join investigation. Crime team reached the spot after him. He denied the suggestion that accused persons have been falsely implicated or that accused persons were called at PS by HC Sukhdev on 30.12.2016 and arrested. He denied the suggestion that signature of accused persons were taken on blank papers. He denied the suggestion that accused Rahul told him that after coming from the Gym he dropped his friend at Mukandpur chowk on his bike and after dropping his friend he returned home.
68. SI Rohit was examined as PW-21. He deposed that on 30.12.2016 on receipt of DD No.29A Ex.PW21/A he made call on the mobile phone of the caller i.e. Dalip Mishra. Dalip Mishra told that he is taking his son to Jahangir Puri hospital. He along with Ct. Pawan reached BJRM hospital. There he came to know that doctor had declared Chanchal brought dead. He got shifted the dead body to the mortuary of BJRM hospital. In the hospital he met eye witness Veena Devi and State Vs. Narender etc. SC No:194/17 :: 50::
recorded her statement Ex.PW11/A. He made endorsement Ex.PW21/B, prepared the rukka and handed over to Ct. Pawan for getting the FIR registered. He requested for calling crime team. Further investigation was assigned to Inspector Manoj. He briefed Inspector Manoj about the facts of the case. IO made inquiries from Smt. Veena and prepared the site plan at her instance.
69. During cross-examination for accused persons he stated that he received information about DD39A on telephone from duty officer. He was present at Bhalswa Jheel when he received the call. He did not meet Dalip Mishra in the hospital but there were many persons in the hospital and therefore he cannot tell if Dalip Mishra was present in the hospital or not. He denied the suggestion that he falsely introduced Veena Devi as witness in this case. Both the sisters of the deceased also met him in the hospital. Veena Devi along with her daughters left on e-rickshaw when they left the hospital. SHO also met him in the hospital. He admitted that IO did not seized exhibit in his presence. Crime team also did not inspect scene of crime in his presence. Same cross-examination was adopted by the Ld. Counsel for accused Narender.
70. Thereafter prosecution evidence was closed. Statement of accused persons were recorded under Sec.313 Cr.PC. All the accused persons wished to lead evidence in State Vs. Narender etc. SC No:194/17 :: 51::
defence. Thereafter the case was fixed for defence evidence.
71. Smt. Dayawati was examined as DW-1. She deposed that on 30.12.16 at about 10.30 PM some police officials came to the house of Raju son of Nafe Singh at Khasra no.51, gali no.13, D Block, Mukandpur, Delhi along with sister of deceased Chanchal. The police officials arrested Rahul, Vishnu Parveen and Irshad.
72. During cross examination by Ld.APP she deposed that she had seen one girl with the police but she was not knowing that girl. However she had seen her. She does not know if accused persons were apprehended from near Boat Club, near Bhalswa Jheel between 4.15 PM to 5.30 PM. She does not know if Raj Kumar and Gopal informed about arrest of accused persons. She does not know if accused persons murdered Chanchal on 30.12.16 after assaulting him at his house at 9 PM. She does not know where the accused persons were on 30.12.16 at 9 PM. She admitted that she had not given any thing in writing or orally informed police authority that accused persons were taken away on 30.12.16 by the police.
73. Smt. Shakila Begum was examined as DW-2. She also deposed on the lines of DW-1. During cross examination, she stated that in this case Cheera has been killed. Name of the sister of Cheera is Sushma. Irshad used to reside in the State Vs. Narender etc. SC No:194/17 :: 52::
house of accused persons. She did not give in writing or informed orally to Sr. Police Authority that accused persons were taken away by the police on 30.12.16. She denied the suggestion that accused persons were arrested on 02.01.17 at 4.15/5.25 PM. Wife of Rahul, Praveen and mother of Rahul and Praveen were left behind. They all went to the PS following the accused persons and on return told her that accused persons were taken to PS Bhalswa Dairy. She denied the suggestion that on 30.12.16 at 9 PM accused persons assaulted Chanchal at his house. She stated that they were at home at 9 PM.
74. In reply to court question, she stated that married sister of Chanchal came with the police, who reside in the seam street. She also stated that Chanchal was having two sisters and one brother.
75. Ms. Ruksar was examined as DW-3. She also deposed on the lines of DW-1 and DW-2. She deposed that it was Friday on 30.12.16. She does not know what was the day on 25.12.16 and what festival was celebrated on that day. On 30.12.16 Neelu sister of Chanchal came along with the police. She denied the suggestion that the accused persons were arrested on 02.01.17 from Boat Club, Bhalswa Jheel, Bhalswa Dairy. She admitted that accused Irshad used to help Rahul, Praveen and others. She admitted that till date she had not State Vs. Narender etc. SC No:194/17 :: 53::
given in writing to any authority that on 30.12.16 accused persons were taken away by the police.
76. Sh. Shambhu Mandal Rai was examined as DW-4.
He deposed that on 30.12.16 at about 10/10.30 PM he saw some police officials arrested the accused persons except Narender. During cross examination by Ld. APP, he deposed that he is a meson, leaves for work in the morning at 7 AM and return home at 9.30 or 10 PM. On 30/.12.16 he left for the work in the morning at 7 AM and left the place for work at about 10 PM and reached home at about 10/10.30 PM. He saw police taking some boys in police gypsy. He asked the person present there as to what had happened and they told that police is taking them to the PS. He came to know that some quarrel had taken place between the neighbors. He does not know if any person died in that quarrel. He denied the suggestion that accused persons were arrested on 02.01.17 near Boat club, Bhalswa Jheel, Bhalswa Dairy at about 4.30 or 5 PM. He does not know what happened after 30.12.16 when police had taken away the sons of Raju.
77. HC Ramesh was examined as DW-5. He has brought the PCR form no.161450153 dt.30.12.16 recorded on information received from mobile no.9958516283 at 11.44 AM. Information received was Anand Builder ke samne Sukla colony Jhagra. He proved computer generated copy of the State Vs. Narender etc. SC No:194/17 :: 54::
same as Ex.DW-5/A.
78. He also proved the computer generated copy of PCR form no.1150134 dt.30.12.16 as Ex.DW-5/B. It was recorded on information received from mobile no.7210171384 at 11.51 AM. Information received was D Block, Part-1, Mukandpur, Bhalswa Jheel ke paas main road, 50 log milkar ek admi ko maar rahe hai, dande or sariya le rahe hai.
79. He also proved the PCR form no.1010484 dt.30.12.16 recorded on information received from mobile no.7210171384 at 21.17 PM that house no.1285 gali no.21, D Block, Part-I, Mukandpur, Samai Pur, Delhi jhagra. The computer generated copy of the same is proved as Ex.DW- 5/C.
80. He also proved the PCR form no.1440544 dt. 30.12.16 recorded on information received from mobile no.7210171384 at 21.18 PM. The information received was house no.1285, gali no.21, D Block Part-I, Mukandpur, Samai Pur, Delhi jhagra. The computer generated copy of same is proved as DW-5/D. The certificate under Sec.65 B of Evidence Act with respect to the 4 PCR forms is proved as Ex.DW-5/E. The testimony of the witness has gone unchallenged and uncontroverted.
81. HC Pankaj was examined as DW-6. He proved the record of Chanchal/deceased available in PS Bhalswa Dairy State Vs. Narender etc. SC No:194/17 :: 55::
as Ex.DW-6/A. The testimony of the witness has gone unchallenged and uncontroverted.
82. Sh. Chabi Lal was examined as DW-7. He deposed that he was taking his goods to Rohini, Sector-9. It was about 11/11.30 AM. He noticed that a quarrel was going on. Rahul made a call at 100 number. Police came and dispersed everybody. He went to Sector-9, Rohini. Quarrel was going on between Chanchal, Neelu and other persons. All were armed with dandas and sariyas. Rahul was coming on tractor at that time, who made a call at 100 number on seeing the quarrel.
83. At about 10/10.30 PM while he was taking dinner, her wife told him that a noise is coming from outside. He came out of the house and saw one Sardarji accompanied by Neelu taking children to the PS. He does not remember the date but on that date murder had taken place.
84. During cross examination by Ld. APP, he deposed that he does not know the mobile number of Rahul by which he made a call to the police. Rahul made a call in between 11.30 to 12 noon. Rahul son of Raj Kumar is residing one house away from his house. The persons standing there were asking Rahul to make call at 100 number and he thought that Rahul made a call at 100 number. Raj Kumar and his wife told him that children were taken to PS Bhalswa Dairy. He himself had not seen the accused being taken to PS Bhalswa Dairy. State Vs. Narender etc. SC No:194/17 :: 56::
Neelu is sister of Chanchal, who is involved in the theft and snatching cases. Chanchal never committed theft or snatching in his presence or out raised the modesty of any female in his presence. He had not met any person with whom Chanchal committed theft or snatching. He does not know the name of any police official or even know the name of Sardarji. He does not know the registration number of gypsy. He stated that accused persons are innocent. When he was asked as to what is the meaning of innocent, he stated that he had not heard any thing wrong about them that is why he say that they are innocent. In reply to a court question, he stated that Rahul made a call but he does not know if he made a call at 100 number. He does not know at what place and at what time Chanchal was murdered. He was also not present at the scene of crime when Chanchal was murdered.
85. Israr Babu, Alternate Nodal Officer of Vodafone Services Pvt.Ltd.was examined as DW-8. He deposed that the mobile no.9810467861 for the period from 30.12.16 to 02.01.17 was not with Vodafone Services Pvt.Ltd. This number came in Vodafone on 16.06.17. The testimony of the witness has gone unchallenged and uncontroverted.
86. Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. Was examined as DW-9. He deposed that he could not bring the record of mobile no.9958719305 for the period State Vs. Narender etc. SC No:194/17 :: 57::
30.12.16 to 02.01.17 as at that time this number was not under Bharti Airtel Ltd. This number came in Bharti Airtel Ltd.
On 11.01.17. This number is in the name of Sukhdev Singh son of Mithu Singh r/o 36 DDA MIG flats, Metro Apartment, Jahangir Puri, Delhi. He also brought the record of mobile no.9911909654. Copy of customer application form is proved as Ex.DW-9/A. According to the record, this number is in the name of Praveen son of Raj Kumar r/o Khasra no.51, gali no.13, Mukand Vihar, Part-I, Delhi. The call detail record of this number for the period 30.12.16 to 02.01.17 is Ex.DW-9/B. The certificate under Sec.65 B of Evidence Act is proved as Ex.DW-9/C. Nothing material came on record to discredit the witness in the cross examination by Ld. APP.
87. Sh. Raj Kumar was examined as DW-10. He deposed that on 30./12.16 in the morning hours, his son Rahul reached near Shukla colony near Mulla Farm, Jheel Road driving the tractor. His son stopped the tractor there. A quarrel was going on. Neelu and Chanchal were giving beatings to one boy. Neelu and Chanchal were having rods in their hands. He asked Rahul as to what had happened and Rahul told him that they are not allowing the tractor to move and there is traffic jam. Rahul also told him that he had already made a call at 100 number. Sukhdev Sardarji came and dispersed the boys. After some time PCR van came and State Vs. Narender etc. SC No:194/17 :: 58::
Sukhdev told them that there was quarrel and he had dispersed them. Same day in the night Sukhdev along with 3- 4 other police officials and Neelu reached his house. Sukhdev said that, "Sahab ladko ko puch tach ke liye bula rahe hai". He inquired as to what is the matter and Sukhdev said, Sahab bateyge". Sukhdev took Rahul, Bijender, Parveen and Irshad with him. He also followed them. Their sons were made to sit in the PS. He was also made to sit in the PS when he reached there. Next day i.e. Saturday in the evening he was allowed to leave the PS. Sukhdev, Mahesh and Deepak had taken Rs.1 lakh from him and he was released. He made complaint to the Commissioner of Police Ex.DW-10/A. Copies of the same were forwarded to Home Minister Raj Nath Singh, LG of Delhi, Chief Minister Sh. Arvind Kejriwal, Joint Commissioner of Police (North), ACP (Jahangir Puri) and Human Rights Commission. His son Rahul went to gym at Radha Vihar near Macchi Chowk at 7 PM from home and returned at about 9 PM.
88. During cross examination by Ld.APPP he admitted that Ex.DW-1/A was sent on 29.01.17. His son Rahul was having mobile no.9958516283. He was having mobile no.9810467861. The complaint was written in hand by his neighbor Balbir Singh and later it was typed. He admitted that Irshad is living with him.
State Vs. Narender etc. SC No:194/17 :: 59::
89. Chanchal was involved in selling drugs and thefts. There is criminal case against his sons Rahul, Praveen and Bijender and against Irshad. Sushma, sister of Chanchal is residing at the corner of the street in which they reside. He denied the suggestion that he is deposing falsely in order to save his sons from punishment. He denied the suggestion that accused persons were arrested on 02.01.17 at about 4.40 to 5 PM near Boat club, Bhalswa Jheel, Bhalswa Dairy or that information of their arrest was given to him. He denied the suggestion that Rahul did not make any call at 100 number or the said mobile number was not registered in the name of Rahul or that he did not make any payment for his release. He denied the suggestion that Rahul is involved in the murder of Chanchal or was present at the scene of crime. In reply to court question, he stated that he was at second floor, some one rang door bell and door was opened. He saw the time in clock, it was 9 PM and then he peeped down from balcony and found that Rahul was there on the bike. He does not know where Rahul had gone after leaving home but he left and telling that he was going to gym. He does not know in whose name mobile phone no.99585162838. Mobile phone number of Parveen is 9911909654. He stated that call was made by Rahul and not by Praveen as Parveen was not there.
90. Sh. Pawan Kumar, Nodal officer, Idea Cellular State Vs. Narender etc. SC No:194/17 :: 60::
Ltd.was examined as DW-11. He brought the record of mobile no.8750870230. As per record this number was issued to SHO Bhalswa Dairy on application moved by Satywan Gautam, the then ACP. The application form along with entire list of corporate numbers is Ex.PW-11/A. The call detail record of this number for the period 01.01.17 to 02.01.17 is Ex.DW11/B. The certificate under Sec.65 B Evidence Act is proved as Ex.DW-11/C. The Cell ID chart is proved as Ex.DW- 11/D. Nothing material came on record to discredit the witness during cross examination by Ld. APP.
91. Sh. Manoj Sisodiya was examined as DW-12. He deposed that he is doing coaching in the Iron Club Gym run by his relative. Rahul used to exercise in that gym. Rahul left the gym on 30.12.16 between 8.30 to 9 PM. After 5-7 days of 30.12.16 Dinesh, elder brother of Raju came to the gym. He prepared one video in I-Phone 6S and sent that video to Dinesh by sharing app. He prepared that Video from the camera installed in the gym.
92. During cross examination by Ld.APP he deposed that gym is owned by Amar Sisodiya, his nephew. He admitted that he was competent and having authority to close any instrument including the cameras at any time. Register is maintained in the gym in which entries is made of all the persons attending the gym. Pritam and Pawan were also State Vs. Narender etc. SC No:194/17 :: 61::
present at that time. He does not know other person, who were present in the gym at that time. On 30.12.16 Pritam came at 5 PM with him and left at 10.30 PM. Pawan came at about 6/7 PM and left at about 9.30 PM. He denied the suggestion that he is deposing falsely in order to save the accused or that he manufactured or fabricated the video. The DVR was lying in the open in the gym. He denied the suggestion that he prepared a false video. Some court questions were put to him. The detail of the same is as under:
Court Q. How much time a person will take on bike to reach D Block, Mukandpur from your gym?
Ans. Hardly 5 to 7 minutes.
Court Q. Did you hand over any thing else to Dinesh while transfering/handing over the video?
Ans. No. Court Q. Did you obtain any document from the owner of the gym while taking the video from the CCTV camera installed in the gym?
Ans. No. Court Q. How many cameras were there in the gym? Ans. There were 4 cameras inside the gym. One on the staircase and one on the main gate.
Court Q. Is it correct that in the recording on the DVR the number of each camera is mentioned?
State Vs. Narender etc. SC No:194/17 :: 62::
Ans. Yes.
93. Dinesh was examined as DW-13. He deposed that he went to gym when his brother used to exercise. Manoj met him in the gym, he took video recording of the gym from Manoj. Thereafter he went to Azadpur. He got prepared the CD of that video. He also got the print out from that video. The mobile phone which he was using, used to remain only in his custody and none else was using that mobile phone. He proved the bill taken from Azadpur market as DW-13/A. The photographs are Ex.DW-13/B to I. The CD is Ex.DW-13/J. The mobile phone is Ex.DW-13/K. He proved the certificate under Sec.65 B of Evidence Act as DW-13/L.
94. During cross examination by Ld. APP, he stated that he signed the certificate under Sec.65 B of Evidence Act on 04.06.18. He visited Azadpur only on 24.05.18 for taking the print out of photographs and to get the CD. He visited the gym in January 2017. Manoj took that video from the DVR.
The video was firstly played on LCD, then using the computer, it was taken on mobile phone and then Manoj took it on mobile phone and then Manoj transferred the same to his mobile phone. In the gym one register was maintained and every body attending the gym has to sign the same. He admitted that on the receipt Ex.DW-13/A his name is not mentioned. It also does not bear the signature of the shop State Vs. Narender etc. SC No:194/17 :: 63::
keeper and also the amount received. He did not obtain any certificate under Sec.65 B of Evidence Act from the photographer from whom he got prepared the CD and print out of the photographs. He also did not obtain any certificate under Sec.65 B of Evidence Act from Manoj and the owner of the gym or the owner of the CCTV camera or the computer.
95. Sunder was examined as DW-14. He deposed that at about 7/7.30 PM he went to gym. He left the gym at about 8/8/30 PM and went home situated in Mukandpur. Rahul was with him in the gym. Rahul dropped him at his house and went away. It takes only 5-7 minutes to reach Mukesh from the gym.
96. Thereafter, defence evidence was closed and case was fixed for final arguments.
97. I have heard Ld. Addl. PP for the State, Ld. Defence counsels for the accused persons and perused the record.
98. Ld. APP submitted that this incident took place on 30.12.16 at about 9 AM at house no.1494, street no.21, D Block, Mukandpur Delhi. The incident was witnessed by Veena Devi examined as PW-11. She is the mother of deceased Chanchal. She is a natural witness. She was cooking food at that time. Chanchal was watching T.V. Some one knocked the door. Chanchal opened the door. The State Vs. Narender etc. SC No:194/17 :: 64::
accused persons forcibly entered. They started attacking Chanchal with the knives. According to this witness knife blows were given by Vikram Bhai and Vishnu Bhai and when his son was running towards the stair case after getting himself released from their clutches Vikram and Shiva stabbed on his back and neck. PW-11 has identified all the assailants. Some of the assailants were also standing outside guarding the scene of crime, so that no body can come forward to protect Chanchal or save Chanchal from their clutches. Ld. PP submitted that PW-11 is trust worthy, reliable. She is the mother of the deceased. There is no reason for her to depose falsely against the accused persons and left the actual culprits go scot free, who assaulted her son. Ld. APP submitted that the prosecution by examining this witness has fully proved and established this case. The other accused persons could not be arrested in this case except the five persons facing trial. All those accused have been recognized and identified by this witness. Prosecution has discharged its onus by examining this witness. It is prayed that keeping in view the testimony of PW-1 the accused persons be held guilty for assaulting and causing death of Chanchal. Ld. APP submitted that it is due to injury sustained by Chanchal, he died. Immediately after the incident Chanchal was taken to BRRM hospital firstly in e-rickshaw and then in TSR. Chanchal was State Vs. Narender etc. SC No:194/17 :: 65::
medically examined in the hospital vide MLC Ex.PW-4/A at 9.40 PM and was declared dead. The post mortem on his body was conducted. The post mortem report is Ex.PW-3/A. There were 12 injuries on his body including incised wound and the stab wounds having corresponding internal injuries.
The doctor opined that Chanchal died due to hemorrhage, secondary to injury to the right carotid artery and lungs, by a sharp cutting/stabbing instrument. Injury no.3,6 and 11 are sufficient to cause death in ordinary course of nature. Ld. APP submitted that this report clearly shows that Chanchal scummbed to the injuries caused by the accused persons on his person in the house of PW-11 i.e. house no.1494, gali no.21, D Block, Mukandpur. Ld. APP submitted that all the accused persons were together. They did it in furtherance of common intention that is why they came together. Some of them stood outside the house to guard the scene of crime and others assaulted Chanchal. This fact itself shows that they were having common intention. It is prayed that all the accused persons be held guilty.
99. Ld. Defence counsel for accused Narender submitted that the onus which was on the prosecution has not been discharged. There was no eye witness of this case. Mother has been introduced falsely as a witness. She was not there. The fact that she was not there is evident from the fact State Vs. Narender etc. SC No:194/17 :: 66::
that she had not sustained any injury and had also not tried to save her son and that is why she had not sustained any injury in the process. She has been introduced later on to strengthen the prosecution case. Ld. Counsel further submitted that the accused Narender was not involved in the commission of offence. She had not seen Narender while committing offence as she has specifically stated that she does not remember if she had seen Narender on the day of incident when they assaulted her son. Ld. Counsel submitted that this statement given by PW-11 clearly shows that Narender facing trial was not present at the scene of crime. He has been falsely implicated. In fact Narender son of Ram Kishan was involved in the commission of offence, who has been murdered by the husband, daughters and son of PW-11 and they are presently lodged in jail in that case FIR no.204/17. Ld. Counsel submitted that Narender has been falsely implicated. There is also no role assigned to him. Even otherwise there is contradiction in the testimony of PW-13 and PW-15. According to PW-13 Narender came out from inside the house and was armed with an iron rod whereas according to PW-15 Narender was having danda only and was standing outside the house. The testimony of all the three witnesses PW-11 Veena Devi, PW-13 Neelu and PW-15 Sushma clearly show that in fact Narender was not there as deposed by PW-11. According to State Vs. Narender etc. SC No:194/17 :: 67::
testimony of PW-11 and PW-15 again his presence on the spot is doubtful, as according to PW-13 he was inside the house and according to PW-15 he was standing outside the house. It is prayed that these contradictory statements and also the fact that no role is assigned to him coupled with the fact that another Narender was involved, who has already been murdered. Benefit be given to him and he be acquitted.
100. Ld. Defence counsel for remaining accused persons submitted that they are innocent and have been falsely implicated. They have nothing to do with the commission of offence. The offence was committed only by some other persons due to quarrel between Vikram, Shiva and Kalu and the deceased. Accused persons have nothing to do with the commission of offence as PW-11 does not say about their role in the commission of offence except that of Vikram, Shiva and Kalu. Ld. Counsel submitted that in fact there was dispute between Vikram, Shiva and Kalu on one hand and Chanchal on the other hand about selling of ganja. This fact is admitted by PW-11 herself that her son used to sell ganja under the patronage of police, due to that reason he quarreled with Vikram. Chanchal was also habitual criminal and there were many FIRs against him. Due to that reason many persons were against him having animosity towards Chanchal. They killed Chanchal, but the family members of State Vs. Narender etc. SC No:194/17 :: 68::
Chanchal including PW-11 falsely named them. Ld. Counsel submitted that PW-11 was not there as she had gone to the market along with her daughter Neelu for purchasing articles. She was not at home. It is prayed that under the circumstances the benefit be given to the accused persons and they be acquitted.
101. After hearing the arguments and going through the record, I found that in the present case though the defence has suggested to Neelu, Sushma and Veena Devi that Veena Devi went to the market but this fact is denied by all the three witnesses. The three witnesses are consistent on the point that only Sushma and Neelu had gone to the market and not Veena Devi. Under the circumstances, I do not find any merit in the contention that she was not at home. In fact defence has also questioned the eye sight of Veena Devi and she said that she is having the perfect eye sight. In fact she was able to tell the time by seeing on clock put in the court room which was at a distance of more than 20 foot. Defence has also taken the plea that there was not sufficient light and due to that reason she was not able to see the faces but she stated that there was tube light which was on in the room and it was also not flickering as suggested by the defence. These questions and the suggestions clearly show that defence is not in fact seriously disputing the presence of PW-11 on the State Vs. Narender etc. SC No:194/17 :: 69::
spot. Even otherwise she being house wife, her presence in the house can not be disputed. She herself stated that she was cooking food in the house and I found no reason to disbelieve her on this point.
102. Keeping in view the above discussions, in my opinion she was present at home at the relevant time. The defence has also challenged her statement on the ground that she had not sustained any injury which shows that she was not there. PW-11 stated that she tried to intervene and save her son. She requested them with folded hands but she was pushed by accused Naushad, due to that she fell down but she did not sustain any injury which require medical examination or the treatment. She also stated that one of the accused picked up a pot to hit her. She stated that the accused picked up the Tulsi plant and when he picked the plant, it came out, due to that she was saved as the pot was not with the plant. Sushma corroborated the testimony of PW- 11 when she said that she noticed some mud on the face of her mother.
103. Keeping in view this fact, I found that she tried to save her son and that also corroborates and strengthens her presence on the spot. It is not necessary that a person must sustain some injury before he is believed to be an eye witness. The witness identified all the accused persons and State Vs. Narender etc. SC No:194/17 :: 70::
also stated that her son was attacked by Vishnu, Vikram and Kalu and other persons. She stated that other persons were armed with dandas and sariyas and they also attacked him. No doubt some contradictions are there in the testimony of PW-13 and PW-15. But as the eye witness stated that he was there and have also fully stood through the test of cross examination. I do not find any reason to disbelieve her testimony.
104. The Supreme Court has held that a witness who is related to the deceased is also reliable in the case Sucha Singh v. State of Punjab, AIR 2003 SC 3617 wherein it has been held:
"20. As observed by this Court in State of Rajasthan v. Teja Ram and ors., AIR 1999 Supreme Court 1776: the over-
insistence on witnesses having no relation with the victims often results in criminal justice going away (awry ?).
When any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be un pragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-
examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality State Vs. Narender etc. SC No:194/17 :: 71::
as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbor hood may be replete with other residents also.
21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh Vs. Satpal Singh and others, AIR 1990 Supreme Court 209: 1990(1) RCR(Crl.) 297 (SC)] Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P v. Ashok Kumar Srivastava, AIR 1992 SC 840:
1992(3) RCR (Crl.) 63(SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties."
(Per Viscount Simon in Stirland v.
Director of Public Prosecution (1944 State Vs. Narender etc. SC No:194/17 :: 72::
AC (PC) 315) quoted in State of U.P. v.
Anil Singh, AIR 1988 Supreme Court 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.
22. In matters such as this, it is appropriate to recall the observations of this Court in Shivaji Sahebrao Bobade v. State of Maharashtra [1974(1) SCR 489 (492-493)] :
".......The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape.
The judicial instrument has a public accountability. The cherished principle or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt......."
".....The evil of acquitting a guilty person light-heartedly as a learned author Claville Willians in 'Proof of Guilt' has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless........"
".........a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the State Vs. Narender etc. SC No:194/17 :: 73::
innocent..."
23. The position was again illuminating highlighted in State of U.P. v. Krishna Gopal (AIR 1988 SC 2154). Similar view was also expressed in Gangadhar Behera and ors. v. State of Orissa (2002(7) Supreme 276).
24. So far as inaction of PWs 9 and 10 in not coming to rescue of deceased is concerned, it has been noted by the trial Court and the High Court that both of them were unarmed and bare handed and the accused persons were armed with deadly weapons. How a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors, like in the present case where witnesses are unarmed, but the assailants are armed with deadly weapons. In a given case instinct of self-preservation can be the dominant instinct. That being the position, their inaction in not coming to rescue of the deceased cannot be a ground for discarding their evidence."
105. The Supreme Court in another case titled Lala Ram v. State of Rajasthan, (2007) 10 SCC 225 has held:
"6. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard. "
106. The Apex Court in case of Dalip Sigh v State of Punjab, 1954 SCR 145 = AIR 1953 SC 364 has held:
"26. A witness is normally to be considered independent unless he or she springs from sources which are State Vs. Narender etc. SC No:194/17 :: 74::
likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often sure guarantee of truth.
However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before its as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
107. The Apex Court in case of Kalegura Padma Rao v. State of A.P., AIR 2007 SC 1299 has held:
"8. In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person.
Foundation has to be laid if a plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
108. In view of the law laid down by the Hon'ble Supreme court I do not find any reason to dis credit or disbelieve Smt. Veena Devi who otherwise reliable and State Vs. Narender etc. SC No:194/17 :: 75::
trustworthy.
109. She stated that her son raised an alarm "Vikram Bhai, Vishnu Bhai kuan chaku marte ho". This statement by the deceased in the presence of PW-11 itself shows the presence of accused Bijender @ Vishnu on the spot. Then she stated that all the accused persons were there, who assaulted her son. When her son ran towards the stair case, Vikram and Shiva stabbed on his back. She also identified Irshad, Babu and Rahul. She also identified Narender. During cross examination she stated that, "It is wrong to suggest that accused Narender is innocent. Vol. I identify accused Narender, who was present in my house on that day. It is wrong to suggest that in the murder of chanchal, Narender son of Ram Kishan was involved. I am not blind that I can not see the person, who assaulted my son". This statement clearly shows and proves the presence of Narender also on the spot. The testimony of the witness inspires confidence. She is the natural witness and have stood through the test of cross examination. The post mortem report Ex.PW-3/A also shows that Chanchal died due to injuries sustained by him in the incident caused by the accused persons facing trial and there companion i.e. Vikram, Shiva and Kalu, who could not be arrested.
110. Keeping in view the above discussions in my State Vs. Narender etc. SC No:194/17 :: 76::
opinion, the onus which was on the prosecution has fully discharged that all the accused facing trial and the other accused not arrested assaulted Chanchal and caused his death. I do not find any reason to disbelieve PW-11. Motive
111. Ld. PP submitted that in this case one incident took place in the morning of 30.12.2016 near the house of Shusma situated near Jagram Chowk. On that day near the shop of Gupta Building Material a quarrel was noticed by Neelu/PW- 13 and Sushma/PW-15 who were sitting on the roof of matrimonial house of Sushma PW-13 also noticed that the accused persons Vishnu, Rahul, Babu, juvenile (J) and other boys carrying Dandas and Sarias. Seeing this she made a call at 100 number. The same has been proved on record by the prosecution as well as by the defence. The record of the call made by Neelu is proved Ex. DW-5/B and she informed that "50 log milkar ek admi ko maar rahe hai dande or saria le rahe hai". Ld. PP submits that at that time Neelu was not knowing as to with whom those boys were quarreling, though Sushma asked Neelu not to make a call but she still made a call. Thereafter Neelu/PW-13 and Sushma/PW-15 reached there and found that infact those boys were quarreling with their brother Chanchal. Vikram was also among those boys. On the call one police officer Sukhdev examined as PW-17 reached State Vs. Narender etc. SC No:194/17 :: 77::
there but he made all the boys to run away as according to him it was small matter. Thereafter Neelu and Sushma also returned to the matrimonial home of her sister. There they heard the accused persons talking with each other that "Baat abhi khatam nahi hui hai, abhi to marenge". Ld. PP submitted that this fact clearly shows that accused persons wanted to take revenge from Chanchal and matter for them was not over. Thereafter Sushma and Neelu took Chanchal to the house of accused Vishnu. On the asking of her sisters Chanchal, tendered apology by touching the feet of mother of Vishnu. Though she said that matter is over but still accused persons were having the grudge. In the evening, they in order to take the revenge assaulted Chanchal at the house and caused his murder. Ld. PP submitting that by examining PW-11 and PW-13, the prosecution has proved the motive behind the commission of crime. It is prayed that keeping in view the testimony of PW-11 and motive as proved by PW-13 and PW-15 the accused persons be held guilty.
112. Ld. Defence counsel submitted that accused Chanchal was the habitual criminal. There was an externment order against him. Due to criminal activities of Chanchal there were many enemies of Chanchal. Chanchal used to sell Ganja in area. People were having animosity with him. So far as accused Bijender, Parveen, Rahul and Irshad are concerned, State Vs. Narender etc. SC No:194/17 :: 78::
they have no criminal background. They used to be busy in their business and having no time for criminal activities. So far as Narender is concerned, he is also peace living citizen having no criminal record. Ld. Counsel submitted that infact there was a dispute between Vikram, Shiva and Kalu on the one hand and Chanchal on the other hand with respect to selling Ganja. This fact is also admitted by PW-11 when she said that her son used to sell Ganja. This was done by Chanchal under the protection of police i.e. Sukhdev and Deepak. Sukhdev has been examined as PW-17. Though PW-17 has not admitted this fact but the testimony of PW-11 speaks volume of that. Even in the presence of PW-13, Chanchal said " Mai police ko paise deta hu, ye mujhe nahi pakrenge". He uttered, these were in the presence of Shukhdev and he did not refuted the same and infact even thereafter he asked Chanchal to run away. Ld. Counsel submitted that there is nothing on record that accused persons were having any animosity or any quarrel with the deceased or any family member of deceased. The onus was upon the prosecution to prove the establish the motive which the prosecution has failed to prove and establish. The prosecution could only prove that it was fight between Vikram and Chanchal. There is no evidence that accused persons were associated with Vikram infact Anchal Mishra PW-12 had State Vs. Narender etc. SC No:194/17 :: 79::
stated that he had seen accused persons moving with his brother Chanchal which shows that accused persons were friend of Chanchal and were not having any animosity with the deceased and therefore they were also not having any reason to murder him. The onus was upon the prosecution to prove the motive which the prosecution has failed to prove and establish.
113. Ld. Counsel submitted that infact Neelu and Chanchal had gone armed Devender alongwith other boys and they assaulted Vikram and his associates. At that time, Rahul was going on tractor and there was traffic Jam.
Chabilal/DW-7 and Raj Kumar, father of accused Rahul, Bijender and Parveen examined as DW-10. Both said that Rahul on seeing the quarrel made a call at 100 number using mobile phone 9958516283. That call was made much prior to call made by Neelu i.e.before 11.44 am. Neelu made the call at 11.50 am. It was only after this call that and police arrived there. Ld. Counsel submitted that accused Chanchal had also taken forcible possession of Mulla farm house. In order to take revenge of the same Vikram alongwith his associates caused murder of Chanchal but the family members of Chanchal falsely implicated the accused persons. Ld. Counsel submitted that the motive is not established by the prosecution so far as the accused persons are concerned.
State Vs. Narender etc. SC No:194/17 :: 80::
114. After hearing the arguments and going through the record, I found that so far as PW-13 is concerned even the defence admits that she is residing at that address. PW-11 stated that she was present there at the matrimonial home of her sister. The record also proves the same at 11.51 am. She made a call at 100 number from her mobile phone No. 7210171384. She informed the police that D-Block, Part-I Mukundpur Bhalaswa Jheel ke pass main road, 50 log milkar 1 admi ko maar rahe hai dande or saria le rahe hai. She nowhere stated that those boys attacked her brother. This fact itself corroborates her testimony that at that time she was not knowing as to with whom the quarrel was going on, otherwise she could have also told the name of her brother. The defence taken is that Rahul made a call from mobile phone 9958516283 but records shows that this mobile phone number is in the name of same Parveen not in the name of Rahul. There is no such evidence brought on record that Rahul was using that phone number. Defence examined 14 witness but Parveen in whose name mobile phone number 9958516283 had not been examined to prove and establish that this phone number was used by Rahul. It is also important to notice here that according to the testimony of Anchal examined as PW-12, he had seen the accused persons with his brother. As Sushma was residing near the house of Rahul State Vs. Narender etc. SC No:194/17 :: 81::
and accused persons were also knowing each other and Neelu was also knowing them. If it were Neelu and his brother who had gone their armed that Dandas and Sarias accompanied by other persons then Rahul would have told the names of the assailants or at least the names of those persons who were known to him and quarreling there. It is important to note that at that time Rahul was sitting on a tractor as deposed by DW-7 Chabilal and DW-10 Raj Kumar and hence could take a better view of the persons quarreling instead of persons standing on the road or in the street. This fact also shows that Rahul had not made this call and infact he was involved in that quarrel and Parveen who was not knowing the persons quarreling made the call and said that some persons are quarreling there.
115. It is also important to note that Parveen is also brother of Rahul as deposed by PW-10 but it has specific come in the testimony of PW-10 that he does not know in whose name mobile phone number 9958516283 is and according to PW-10 his son Parveen who is also facing trial and brother of Rahul and Bijender is using mobile phone number 9911909654. Parveen also does not say in his statement u/s 313 Cr.Pc that mobile phone number 9958516283 is in his name but used by his brother Rahul. In this circumstances, I do not find any merit in the contention State Vs. Narender etc. SC No:194/17 :: 82::
that it was Rahul who made the call at 100 number before the calls made by Neelu/PW-11.
116. From the testimony of PW-11 and PW-13, it is clear that beside Vikram and other persons the accused facing trial were also at side of Vikram. They reached on the spot with Dandas and sarias, Neelu and Sushma reached there, they intervene and separated them. In the meanwhile PW-17 reached there and dispursed the boys. It is also important to note that PW-11 and PW-13 over heard the accused persons facing trial and also Vikram that matter is still not over and that 'usko abhi marenge'. It clearly shows that still they wanted to take revenge from Chanchal, though PW-11 and PW-13 fearing danger to their brother Chanchal, made Chanchal to tender apology to the mother of accused persons i.e. Bijender, Parveen and Rahut but still they on the same day at 9.00 pm alongwith their other associates Vikram, Shiva, Kalu and juvenile (J) and other persons forcibly entered the house of Chanchal and attacked him.
117. In my opinion prosecution by examining PW-11 and PW-13 fully proved and established the motive that the accused persons have to eliminate Chanchal.
118. Ld. APP submitted that besides that eye witness account, there are other circumstances which also point towards the guilt of the accused persons and at the same time State Vs. Narender etc. SC No:194/17 :: 83::
in consistent with any hypothesis of innocence of accused persons. Ld. Counsel submitted that the following circumstances have been proved and established by he prosecution against the accused persons.
i) Fleeing from the scene of crime as seen by PW-13 & PW-15
ii) Dying declaration.
iii) Recovery of weapon of offence.
iv) Recovery of blood stained clothes.
119. I taken up the circumstances one by one. Fleeing from the scene of crime as seen by PW-13 & PW15
120. Ld. APP submitted that there are two witnesses examined by the prosecution to prove and establish this circumstance i.e. PW-13 Neelu and PW-15 Sushma. Ld.APP submitted that both the witnesses are consistent, corroborated each other and stood through the test of cross examination. Both stated that it was Friday on that day and they went to Friday market on foot. When they were returning at about 9 PM, they saw the crowd outside their house. They also saw some accused persons standing outside their house having dandas. On seeing them, one of them said "oye bhag bhag". Some accused person came running out of their house and all the accused persons fled away. Both the witnesses have State Vs. Narender etc. SC No:194/17 :: 84::
identified accused persons facing trial that they were also among those persons, whom they have seen fleeing from the scene of crime along with weapons. Ld. APP submitted that both the witnesses are the real sisters of the deceased. There were other persons present in the street at that time but none of them came forward to depose and hence could not be examined. IO made efforts to join the neighbors but none came forward. Ld.APP submitted that both PW-13 and PW-15 are trust worthy, reliable and have no reason to depose falsely against the accused persons. There is small contradiction in the testimony of PW-13 and PW-15. PW-13 says that she saw Narender coming out of the house with an iron rod where as according to PW-15 she saw Narender outside the house having a danda. Ld. APP submitted that here the only contradiction is whether Narender was armed with danda or sariya but so far as his presence on the spot is concerned both are consistent. Rather Veena Devi also supported them that Narender was there. Ld. APP submitted that the presence of Neelu and Sushma there is not disputed by the prosecution and in fact Neelu had thereafter made calls at 100 number which have been proved by the defence itself by examining DW-5 HC Ramesh, who proved those calls as Ex.DW-5/C and DW-5/D. Those calls have been made at 9.17 and 9.18 PM which again proves the presence of Neelu. Ld. State Vs. Narender etc. SC No:194/17 :: 85::
APP submitted that prosecution by examining these two witnesses have proved the circumstance that accused persons after committing the offence were fleeing from the scene of crime with weapons and were seen by both of them. Ld. APP submitted that this circumstance point towards the guilt of the accused persons as otherwise there was no reason for them to flee from the scene of crime and when Neelu and Sushma entered the house, they saw there brother lying in injured condition. There was blood scattered in the entire house which is also supported by PW-11 and even the exhibits lifted shows that there was lot of blood and also clothes were stained with blood. The watch of deceased Chanchal was also lying on the floor with its strap broken which clearly shows that there was a scuffle in that house. There were incised wounds and stab wounds on the body of Chanchal and immediately thereafter accused persons were seen fleeing from that house and from outside that house. Ld. APP submitted that this circumstance is also in consistent with any hypothesis of innocence of the accused persons and at the same time points towards their guilt.
121. Ld. Defence counsel for accused Narender submitted that both PW-13 and PW-15 are interested witnesses. They are telling lie only to take revenge from the accused persons. None of them were there. Ld. Counsel for State Vs. Narender etc. SC No:194/17 :: 86::
accused Narender submitted that in fact PW-11 specifically stated that she does not remember if she had seen Narender on the day of incident. This fact itself creates doubt regarding the presence of Narender on the spot. Ld. Counsel further submitted that so far as the other two witnesses PW-13 and PW-15 are concerned, they have contradicted each other and are not consistent. PW-13 said that she had seen Narender coming out of the house where as according to PW-15 she had seen Praveen outside the house. The two have also contradicted each other as to whether Praveen was having iron rod as deposed by PW-13 or the danda as deposed by PW-15. It is submitted that in view of the contradictions in the testimony of PW-13 and PW-15 the presence of Narender is not proved, the onus is not discharged.
122. Ld. Counsel for the other accused persons stated that the accused persons were not there at all. They were at their home and Rahul had gone to attend gym at the relevant time as deposed by witness DW-12 Manoj Sisodiya and DW- 13 Dinesh. Their testimony is further corroborated by Sunder, who stated that Rahul dropped him from the gym on that day. Ld. Counsel submitted that from the testimony of DW-12, DW- 13 and DW-14, it is clear that Rahul was not there and was in the gym. This also shows that PW-13 and PW-15 are deposing falsely that Rahul was there. This fact clearly shows State Vs. Narender etc. SC No:194/17 :: 87::
that they are not reliable. Ld. Counsel submitted that in fact the CD has been prepared of the video recording of 30.12.16 in the Iron Club Gym which was attended by Rahul. There were CCTV cameras installed therein and from the footage of those CCYV cameras, the CD Ex.DW-13/J has been prepared and proved on record. The certificate under Sec.65 B of Evidence Act is also proved as Ex.DW-13/L. The bill of studio from where the CD was got prepared of the footage from the mobile phone is proved as Ex.DW-13/A. Ld. Counsel submitted that keeping in view this defence evidence, it is clear that Rahul was not there and that witnesses are deposing falsely. They are not reliable and are interested witnesses. It is submitted that no independent witness has been joined, though both PW-13 as well as PW-15 stated that the neighbors were standing outside their houses and at the doors. In the absence of any independent witness being examined no reliance on the testimony of PW-13 and PW-15 can be placed. It is prayed that benefit of the same be given to the accused person. The onus has not been fully discharged by the prosecution. It is prayed that all the accused be acquitted.
123. After hearing the arguments and going through the record, I found that PW-13 and PW-15 are the sisters of the deceased but merely because they are the relatives of the State Vs. Narender etc. SC No:194/17 :: 88::
deceased, they can not be said to be interested witness unless it is shown that they have some interest to save actual culprit and falsely implicate the accused persons. No such evidence has been brought on record to show that they wanted to save the actual culprit or have any interest to falsely implicate the accused persons. Merely on the basis that they are relative of the deceased, in my opinion their testimony can not be discarded which otherwise is cogent, reliable and trust worthy. Both the witnesses are consistent that on that day being Friday, they went to the Friday market at about 7 or 7.30 PM. When they were coming back to their house at about 9.15 PM, they noticed the crowed in the street. They also saw some of the accused standing with dandas outside their house. They ran towards their house on seeing them, one of the accused said oye bhag bhag. All the accused persons thereafter ran away in different directions. Some of the accused also came out of their house and ran away. They were also armed.
124. Ld. Counsel has raised the plea that PW-15 specifically said that she could not see their faces and hence their identification in the court room is not admissible. I have gone through the testimony of PW-15 where she in fact stated that she heard the word "oye bhag bhag" but could not see the face of accused, who uttered these words meaning thereby State Vs. Narender etc. SC No:194/17 :: 89::
that he can tell who out of those accused persons uttered words "oye bhag bhag". Ld. Counsel has also questioned the witnesses that there was no light in the street but both the witnesses specifically stated that there was electric pole in the street and light was on. There was sufficient light to see and recognize the people. As mentioned above both the witnesses are trust worthy and reliable . They have stood through the test of cross examination. As rightly pointed out by Ld. APP there is minor contradictions in the testimony of PW-13 and PW-15 as to whether Narender was armed with danda or sariya but they are consistent about his presence on the spot and Veena Devi has also deposed about his presence which has been discussed earlier. It being a minor variation in my opinion does not go to the root. Keeping in view the circumstance that there was already a large crowed gathered in the street, both the ladies saw some persons standing outside there house armed with dandas and then all of a sudden on seeing them the accused persons started running, in such a situation if they contradict each other on a small point whether Narender was armed with danda or sariya that does not go to the root of the case or make the story unbelievable and untrust worthy.
125. Defence has taken the plea of alebi that Rahul was not there and that he was in the gym. It is important to note State Vs. Narender etc. SC No:194/17 :: 90::
that the gym is situated in Radha Vihar near Machhi Chowk and only at a distance of 5-7 minutes drive as deposed by DW-12 and also by DW-14. According to the defence Rahul was in the gym and after attending the gym, he left on his bike with DW-14 and dropped him at Mukandpur. According to DW- 14, they left the gym at 8/8.30 PM. If DW-14 is to be beleived then at the time of the commission of offence presence of Rahul at the place of occurrence can not be disputed as it takes hardly 7 minutes to reach D Block, Mukandpur from the gym. According to DW-14, Rahul and he left the gym at about 8/8.30 PM, meaning thereby that Rahul was present at D Block, Mukandpur at about 8.37 PM, therefore even if it is believed that Rahul was in the gym that does not at the same time proves that at 9 PM he was not at house no.1494, street no.21, D Block, Mukandpur. Onus was upon the prosecution to prove that he was in the gym at 9 PM which even the defence witness does not prove and establish, rather himself demolishes that story.
126. So far as the evidence of DW-12 and DW-13 is concerned, according to DW-12 there are CCTV cameras installed in the gym and using that footage from the computer installed, he prepared some copy of footage on his mobile phone which he transferred to DW-13 Dinesh. It is important to note that the original DVR has not been produced. The CD State Vs. Narender etc. SC No:194/17 :: 91::
produced is not prepared from the hard disc of DVR. Even the mobile phone of Manoj in which he first copied the footage from the computer is not produced. Even the hard disk of that computer is not produced and the certificate under Sec.65 B of Evidence Act has also not been produced issued by DW12 to prove and establish the secondary evidence i.e. the CD. It is also important to note that according to the evidence it was DW-12, who provided this video to DW-13. The video recording produced in the court is not shown to DW-12 to ascertain whether the video recording produced by DW-13 is the same which he provided to him. Under the circumstances, in my opinion that CD also can not be looked into.
127. DW-12 has also deposed that there is attendance register maintained in the gym and any person attending that gym has to put his attendance in that register but that attendance register has also not been produced in the court.
Onus was always on the defence to prove the plea of alebi which the defence has miserably failed, rather the testimony of DW-14 itself shows the presence of accused Rahul in Mukandpur even much prior to the incident i.e. around 8.37 PM.
128. Keeping in view the above discussions, in my opinion so far as the testimony of PW-13 and PW-15 is concerned that proves and establishes that the accused State Vs. Narender etc. SC No:194/17 :: 92::
persons fled away from the spot immediately after committing the offence and were seen by them. The circumstance stands established and proved. This circumstance not only point toward the guilt of accused but at the same time in consistent with any hypothesis of innocence of the accused persons. At the same time defence has failed to prove and establish the plea of alebi with respect to accused Rahul and this also points towards the guilt of the accused Rahul and is also in- consistent with any hypothesis of innocence of accused. Circumstance of Dying declaration.
129. Ld. APP submitted that after the incident Chanchal was being shifted to BJRM hospital initially in E-rickshaw and thereafter from Mukandpur Chowk to hospital in TSR. When they started from the house, PW-11, PW-13 and PW-15 were in the e-rickshaw. On asking of the sister Sushma PW-15, Chanchal told her that Vikram, Vishnu, Shiva, brother in law of Vikram i.e. Narender, Juvenile 'J'. Kalu, Rahul, Irshad caused injury to him due to the incident which happened in the day time. Ld. APP submitted that all the three witnesses i.e. PW- 11, PW-13 and PW-15 supported this statement that Chanchal told them on the way to the hospital that the accused persons including Vikram, Shiva, Kalu and juvenile 'J' assaulted him. There is consistency in their testimony and all of them have stood through the test of cross examination on this point. Ld. State Vs. Narender etc. SC No:194/17 :: 93::
APP submitted that from e-rickshaw he was shifted to TSR at Mukandpur Chowk. Anchal and Dalip Mishra also joined them. In the TSR brother and father i.e. PW-12 and PW-14 again inquired from Chanchal as to who caused injuries to him and he again told the names of the accused persons. All the five witnesses i.e. PW-11 to PW-15 are consistent on this point that Chanchal told them on inquiry the names of the assailant, who caused injuries on his person and he named not only the accused facing trial but also the other person, who are yet not arrested i.e. Vikram, Kalu and Shiva. Ld. APP submitted that on the basis of dying declaration also a person can be held guilty and convicted if the dying declaration inspires confidence reliable and trust worthy. In the present case the prosecution has proved the dying declaration by examining these five witnesses, who removed the injured to the hospital and there is no reason to disbelieve their testimonies as they all are relatives of the deceased. Their presence along with the injured can not be disputed and at the same time this inspires confidence also. The dying declaration is reliable, trust worthy without blemish and corroborated by the other piece of evidence i.e. the medical evidence. Ld. APP prayed that keeping in view the testimony of these witnesses, it is clear that prosecution has proved and established the dying declaration, it is prayed that keeping in view the un blemished, State Vs. Narender etc. SC No:194/17 :: 94::
cogent, reliable and trust worthy dying declaration, the accused persons be held guilty and convicted.
130. Ld. Defence counsel submitted that Chanchal had already died in the house before he was shifted to the hospital and he was not speaking, the dying declaration is concocted and is not reliable at all. The witnesses have also contradicted each other. According to PW-11 it was Neelu, who brought the e-rickshaw but when Neelu appeared in the witness box, she stated that e-rickshaw was brought by some neighbor and not by her. Under the circumstances, it is not clear that how e- rickshaw reached there. According to PW-11 her husband reached home from the duty but according to her husband and also according to the statement of other witnesses, he met them at Mukandpur Chowk and thereafter accompanied them to the hospital. Ld. Counsel further submitted that according to PW-12 Chanchal told the names only once. But if the witnesses are to be believed Chanchal firstly told the names to Sushma when he was taken in e-richshaw and then in the TSR. Ld. Counsels submitted that in fact Chanchal was already dead before taking him to the hospital but in order to make out a case against the accused persons, a false story of making dying declaration has been made by the prosecution. The TSR driver or the e-rickshaw driver had not been joined and examined on this aspect. They were the only independent State Vs. Narender etc. SC No:194/17 :: 95::
witnesses. E-rickshaw driver was only a neighborer even, his name not told by the witnesses. That person could have been easily examined to support the version that Chanchal made the dying declaration as alleged by the witnesses. It is prayed that onus was on the prosecution to prove that deceased made the dying declaration but prosecution has miserably failed to prove and establish the same.
131. After hearing the arguments and going through the record, I found that in this case there are five witnesses of dying declaration i.e. PW-11 to PW-15.All five are consistent and corroborated each other. They all stated that on inquiry Chanchal told them the names of the accused persons. They are also consistent on the point that he told that Narender is brother in law of Vikram. However they don't know the wife's name of Vikram and the names of other relatives of Vikram. They are consistent that Chanchal did not tell them the father's name of any of the accused. The witnesses stated that they were already knowing the accused persons. Even otherwise so far as the present accused persons are concerned, there is no dispute about their identity except that of Narender but mother of deceased, who is an eye witness, specifically stated that Narender the accused facing trial was there. The other two witnesses PW-13 and PW-15 had also seen accused Narender while fleeing from the spot, therefore, State Vs. Narender etc. SC No:194/17 :: 96::
I don't think that there is any dispute regarding the identity of accused Narender is still pending. So far as the dying declaration is concerned, all the five witnesses are consistent. The only dispute raised by the defence that according to PW- 11 It was Neelu who arranged the e-rickshaw, but when Neelu appeared in the witness box, she did not say so. In fact she deposed that some neighbor brought the e-rickshaw. I found that this is not a major contradiction as the issue is that they left home in the e-rickshaw and on that point all three are consistent. In fact even PW-12 deposed that when he reached Mukandpur Chowk, he found that his brother is shifted to TSR from e-rickshaw and thus corroborate the testimony of PW-11, PW-13 and PW-15.
132. Ld. Defence counsel has also raised the plea, that according to PW-11 her husband firstly reached home and then accompanied to the hospital. I found that there is no contradiction in the statement of PW-11 and PW-14 also as neither she nor her daughters Neelu and Sushma said that Dalip Mishra was with them in e-rickshaw. PW-11 only stated that her husband reached home from the duty after receiving information and then accompanied them to the hospital. This testimony of PW-11 is also corroborated by PW-14, who stated that after coming to know about the incident, he rushed to his house after reaching his house he was told by the State Vs. Narender etc. SC No:194/17 :: 97::
neighbour that his wife and daughters were taking Chanchal to hospital and then he came running to Mukandpur Chowk where he met his wife and daughters. While coming home from his duty, he also made call to Anchal and informed him about the incident. Anchal also corroborated the testimony of PW-15. In view of the testimonies of PW-11 to PW-15, I found that there is no such contradiction in their testimonies as Ld. Defence counsel wanted to point out. In fact all the five witnesses are consistent, corroborated each other in minute details except some minor variations which are bound to occur. All the witnesses are reliable and trust worthy.
133. Ld. Defence counsels also argued that Chanchal died at house and was able to speak. There is no evidence on record to support this contention. All the five witnesses stated that he was speaking. There is also no cross examination of the doctor on this point that the injuries were such which will result in instant death or that the injured would not be able to speak. Therefore, I do not find any merit in this contention. All the five witnesses consistently stated that decreased, on inquiry as to who caused injuries to him, told them the names of the accused persons facing trial and also of other accused persons. In view of the testimony of these five witnesses, in my opinion, prosecution has been able to prove and establish that the deceased made the dying declaration. The dying State Vs. Narender etc. SC No:194/17 :: 98::
declaration proved is reliable, trust worthy and also inspire confidence. Under the circumstances in my opinion, the onus which was on the prosecution has fully been discharged. Recovery of weapon of offence.
134. Ld. APP submitted that in this case all the accused persons were arrested on 02.01.17 near Boat Club, Bhalswa Jheel, Bhalswa Dairy at about 4 PM when the police team along with Neelu were in search of the accused persons. The accused persons were pointed out by Neelu after noticing them sitting in the park. After they were arrested, they got recovered the weapon of offence that is the dandas used in the commission of offence from the bushes. Prosecution has examined HC Mahesh PW-6, HC Sikandar PW-18 and Inspector Manoj PW-20 to prove the recovery. The danda got recovered by Praveen Kumar Ex.PW-6/Article 1 was seized vide memo Ex.PW-6/A-4. The danda got recovered by accused Narender Ex.PW-6/Article 2 was seized vide memo Ex.PW-6/B-4. The danda got recovered by Bijender @ Vishnu Ex.PW-6/Article 3 was seized vide memo Ex.PW-6/C-4. The danda got recovered by Rahul Ex.PW-6/A-4 was seized vide memo Ex.PW-6/D-4. Accused Irshad got recovered danda Ex.PW-6/Article 5 which was seized vide memo Ex.PW-6/E-4. Ld. APP submitted that all the three witnesses PW-16,18 and 20 have fully corroborated and supported each other on this State Vs. Narender etc. SC No:194/17 :: 99::
aspect that accused persons got recovered dandas. Blood was detected on the danda got recovered by accused Narender and Praveen. The DNA isolated from the danda recovered at the instance of Narender matched with the DNA of deceased which links the danda with the commission of offence and also link the accused with the commission of offence. Ld. PP submitted that some accused persons were standing outside with the dandas and therefore only because blood was not detected or the DNA did not match does not absolve them. Ld. APP submitted that no public witness could be joined at the time of recovery, though Neelu was with them at the time of apprehension but she also left immediately after the accused persons were apprehending as she was in a hurry. Ld. APP submitted that testimony of PW-16, PW-18 and PW-20 can not be discarded merely because no public witness was joined when otherwise, they are reliable and trust worthy witnesses. They have stood through the test of cross examination. They also do not have any reason to depose falsely against the accused persons. It is prayed that keeping in view the testimony of PW-16, PW-18 and PW-20 and also the FSL result Ex.PW-19/A and the geno type chart PW-19/B, the prosecution has been able to prove and establish the recovery of weapon of offence and that the accused persons used the same in the commission of offence. Ld. PP submits State Vs. Narender etc. SC No:194/17 :: 100::
that circumstance stands established which points towards the guilt of accused and is also in consistent with any hypothesis of innocence of accused. It is prayed that accused persons be held guilty and convicted.
135. Ld. Defence counsel for accused Narender submitted that Narender has been falsely implicated in this case. There is no evidence against him to link him with the commission of offence. The recovery was not effected from him or at his instance. Danda has been planted upon him and on the danda the police planted the blood which they lifted from the scene of crime. Ld. Counsel submitted that no public witness is joined, though public persons were available there as deposed by PW-16, PW-18 as well as PW-20. Neelu/PW- 13 was also with them at the time of apprehension but she was also not joined at the time of recovery. This fact itself creates doubt regarding the truthfulness of story of prosecution. Ld. Counsel further submitted that there is also contradiction in the testimony of PW-13 and the recovery.
According to the prosecution case there is recovery of danda at the instance of accused Narender but according to PW-13 Narender was having iron rod and not the danda. This itself contradicts the entire case and demolishes the prosecution case. It is prayed that keeping in view the non joining of the public witnesses, and the fact that danda has been planted State Vs. Narender etc. SC No:194/17 :: 101::
upon him, the benefit be given to accused and he be acquitted.
136. Ld. Defence counsel for the remaining accused persons submitted that accused persons were taken to PS on 30.12.16 itself by PW-17 HC Sukhdev who came to the house of accused persons along with Neelu. They were made to sit in the PS. Even DW-10 Raj Kumar, father of Bijender, Praveen and Rahul, when went to the PS to inquire, he was also made to sit in the PS and was allowed to leave only after he has paid money to the police. Ld. Defence counsel submitted that defence has examined DW-1, DW-2, DW-3 and DW-4 to prove and establish this fact and all of them consistently said that the accused persons were taken away by the police on 30.12.16 from their house by PW-17 along with Neelu on the pretext of making inquiries and thereafter they have been falsely implicated in this case. ld. Counsel submitted that in fact the police wanted money to release the accused persons and when the accused persons failed to give money, they were falsely implicated in the present case. Ld. Counsel submitted that no recovery has been affected from them or at their instance. The dandas have been planted upon them. Ld. Counsel further submitted that the fact that these dandas were planted upon them is also evident from the fact that the dandas were sent to FSL for DNA examination. The DNA State Vs. Narender etc. SC No:194/17 :: 102::
could not be isolated and prosecution failed to link the dandas allegedly recovered at the instance of accused persons with the commission of offence, therefore, prosecution has failed to prove and establish this circumstance.
137. After hearing the arguments and going through the record, so far as the argument that the accused persons were taken away by the police on 30.12.16 itself and that they were not arrested on 02.01.17, I found that the argument is that it was HC Sukhdev, who along with Neelu came to the house of accused Bijender, Praveen, Rahul and Irshad was also living with them and took them to PS. HC Sukhdev was examined as PW-17 but there is no cross examination of PW-17 that on 30.12.16, he came to the house of Raj Kumar and took away Bijender, Praveen, Rahul and Irshad. The other witness Neelu is examined as PW-13 and surprisingly she is also not questioned about this fact by the defence during lengthy cross examination. This fact itself shows that it is only an after thought and accordingly the witnesses have been cross examined. Otherwise the defence must have put these questions to PW-13 and PW-17.
138. Defence has also examined DW-1 to DW-4 in this regard but they have also contradicted each other. According to DW-1 police came along with sister of deceased Chanchal and took the accused persons but during cross examination State Vs. Narender etc. SC No:194/17 :: 103::
she stated that there was one girl with the police but she was not knowing that girl. Meaning thereby that she was not knowing that that girl was sister of Chanchal/deceased. She also stated that she does not know if the accused persons were apprehended on 02.01.17 from near Boat Club, Bhalswa Jheel between 4.15 PM to 5.30 PM. She also does not know where the accused persons were at 9 PM on 30.12.16. All these facts clear show that she was not there at the relevant time when she alleges that accused persons were taken away and in fact was told later on and is hearsay witness.
139. So far as DW-2 is concerned, she also is not sure, according to her the married sister of Chanchal came with the police. The married sister is Sushma whereas the story of defence is that it was Neelu who came with the police. She also stated one important fact that after the police took away the accused, wives of Rahul and Praveen and mother of accused persons were left behind and they also went to the PS. She does not say that Raj Kumar the father of accused persons was also there, therefore, the testimony of DW-10 in this regard that the police came and took away his sons can not be relied. This witness herself is also not reliable as she does not support the prosecution case that it was Neelu who came along with the police. So far as DW-3 and DW-4 are concerned, they also deposed about the arrest of accused State Vs. Narender etc. SC No:194/17 :: 104::
persons on 30.12.16. DW4 stated that accused persons were taken to Bhalswa Police station, but he stated that he heard this fact as stated by the neighbors. DW-3 is also the daughter of DW-2. She does not remember any other date except 30.12.16 and similar is the position of DW-4, he does not know the names of the police officials and the registration number of police gypsy. Surprisingly mother of the accused persons was there according to DW-2 but she has not appeared in the witness box. On the other hand Raj Kumar was not there but he has appeared in the witness box and as discussed above, no questioning is done to PW-13 and PW- 17 about this fact. Keeping in view all these facts I do not find any merit in the defence that they were taken to the PS on 30.12.16 itself. In view of the above discussion, in my opinion it is a story built later on.
140. So far as recovery of dandas are concerned, all the three witnesses PW-6, PW-18 and PW-20 are consistent.
They have fully supported the prosecution case and corroborated the testimony of each other. No doubt no public witness has been joined but the witnesses specifically stated that efforts were made to join the public witnesses but none agreed. Under the circumstances, when despite efforts the public witnesses could not be joined, no fault can be found with the investigation. There is no such law that the testimony State Vs. Narender etc. SC No:194/17 :: 105::
of police witnesses can not be relied upon unless corroborated by public persons. The testimony of police witnesses can also be relied if witness is reliable, trust worthy and inspires confidence. In the present case, all the three witnesses examined have stood through the test of cross examination. They are consistent and fully corroborated each other. There is nothing on record to disbelieve their testimony. The defence has not been able to breach the trustworthiness of the witnesses. All the three witnesses have proved and established the recovery of dandas at the instance of accused persons. The reliance can be placed on the Judgment cited as Parmod Kumar v State (Delhi), (2013) 6 SCC 586 wherein it was held that:
"11. Thus, the submission that the whole case should be thrown overboard because of non- examination of independent witness and reliance on the official witnesses cannot be accepted. Presently, we shall proceed to deal with the veracity and acceptability of the testimony of the witnesses. The learned trial Judge and the High Court, after x-ray of the evidence of the witnesses, have come to the conclusion that Pramod Kumar was a proclaimed offender; that information was received by the competent authority that he was hiding in the house of Chander Pal; that a team had gone to apprehend him; that SI Jaswinder Singh along with other members of the team waited at a distance of 100 yards and Maharaj Singh went to the house of Chander Pal; that the accused was found on the verandah of the house and was asked to surrender but he immediately took out a knife from his shirt pocket; that before he could inflict a knife blow, he was overpowered by Maharaj Singh and there was a grapple between the two; and Maharaj Singh, State Vs. Narender etc. SC No:194/17 :: 106::
receiving a bullet injury, fell down and eventually succumbed to the injuries in the hospital. It is not in dispute that Pramod Kumar has received some injuries, but that would not be a ground for discarding the prosecution version and acceptance of the plea of the defence. The evidence on record is required to be scrutinized and appreciated. The witnesses, namely, Baljit Singh, PW-6, Samar Singh, PW-8, Jaswinder Singh, PW-9, Rajbir Singh, PW-11 and Md. Iqbal, PW-16, who have been examined in support of the prosecution, have stood embedded in their version. The witness, Samar Singh, PW-8, has vividly described the occurrence and the graphic description has not been, in any manner, dented in spite of the roving cross- examination. It is apt to note that despite searching cross-examination, none of the witnesses has given way to any tergiversation. When their testimony has not been varied from any spectrum, there is no reason to discard them. Thus, the contention that there should have been examination of independent witnesses to corroborate the evidence of the police officials has to be treated as mercurial. Therefore, we unhesitatingly repel the said submission."
141. Similar view was expressed by the Apex Court in case titled Kashmiri Lal v State of Haryana, (2013) 6 SCC 595 and held that:
"9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of State Vs. Narender etc. SC No:194/17 :: 107::
scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence.
These aspects have been highlighted in State of U.P. v. Anil Singh, 1990(3) R.C.R (Criminal) 585 : 1988 Supp SCC 686, State, Govt. of NCT of Delhi v.
Sunil and another, 2001(1) R.C.R. (Criminal) 56 : 2001(1) SCC 652 and Ramjee Rai and others v. State of Bihar, 2006(4) R.C.R.(Criminal) 289 :
2006(13) SCC 229. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy."
142. The dandas so recovered were also sent to FSL for analysis. The FSL result has been proved on record as Ex.PW-19/A. According to this report, blood was detected on the danda recovered at the instance of accused Narender. The DNA was isolated from the blood found on that danda which matched with the DNA of the deceased. This evidence further link the weapon of offence with the commission of offence. Keeping in view the above discussion, in my opinion,prosecution has been able to prove the circumstance which points towards the guilt of the accused and is inconsistent with any hypothesis of innocence of accused. Recovery of clothes State Vs. Narender etc. SC No:194/17 :: 108::
143. Ld. APP submitted that when the accused persons were apprehended they were found wearing clothes on which some blood was found. Those clothes were seized. The clothes of Narender i.e. Blue and gray colour sweater and one white colour round neck baniyan Ex.PW-6/Article 6 which were seized vide memo Ex.PW-6/B-5. On the clothes of Rahul i.e. one black colour sweater and jeans pants Ex.PW-6/Article 7 were seized vide memo Ex.PW-6/D-5. Clothes of Irshad i.e. one blue colour check design shirt and light blue colour jeans pants Ex.PW-6/Article A were seized vide memo Ex.PW-6/E-5. The clothes of accused Praveen i.e. full sleeves safari shirt and blue colour jeans Ex.PW-6/Article 9 were seized vide memo Ex.PW-6/A-5. The clothes of Bijender i.e. light green colour shirt and gray colour jeans Ex.PW-6/Article 10 were seized vide memo Ex.PW-6/C-5. Ld. APP submitted that the accused persons wearing these clothes at the time of commission of offence. The three recovery witnesses PW-6, PW-18 and PW-20 fully proved the recovery of these clothes. Defence has disputed the fact that these clothes does not belong to them but no such evidence has been brought on record that these clothes are not of their size. The recovered clothes were sent to FSL for analysis. The DNA finger print report and the allelic data report are proved on record are Ex.PW-19/A and PW-19/B. Blood was detected on the State Vs. Narender etc. SC No:194/17 :: 109::
sweater and the vest of accused Narender. The DNA was isolated from the blood found on the sweater of accused Narender which matched with the DNA profile of deceased. Ld. APP submitted that blood could not be detected on the clothes of the other accused persons but that by itself does not prove that they were not involved in the commission of crime. Ld. APP submitted that all the three witnesses examined have fully supported the prosecution case. They are reliable and trust worthy and hence their testimonies can be relied upon. Ld. APP submitted that prosecution has successfully proved and established this fact which points towards the guilt of accused Narender and at the same time inconsistent with any hypothesis of innocence of accused.
144. Ld. Defence counsel for accused Narender submitted that accused has been falsely implicated. The clothes shown to have been recovered i.e. Ex.PW-6/Article 6 are not of Narender and have been planted upon him. The blood was also planted on those clothes by the police to falsely implicate him. Ld. Counsel submitted that onus was upon the prosecution to prove that the clothes recovered were of the accused but no such evidence has been adduced. At the time of recovery also, no public witness was joined. Non joining of public witnesses despite availability, itself creates doubt about the truthfulness of the story of prosecution. Ld. State Vs. Narender etc. SC No:194/17 :: 110::
Counsel submitted that keeping in view all these facts it is clear that the onus which was on the prosecution has not been discharged and prosecution has failed to prove the recovery of the clothes itself.
145. Ld. Counsel for the remaining accused persons submitted that the accused persons were not arrested from that place and lifted from their houses. Thereafter the clothes were planted upon them. At the time of apprehension of the accused persons, as per the story Neelu PW-13 was with the police but she has not been joined as witness and has also not signed on the recovery memos. No other independent witness has been joined, this fact itself creates doubt regarding recovery. Ld. Counsel further submitted that the onus was also upon the prosecution to prove and establish that accused persons were wearing these clothes at the time of commission of offence. These clothes were sent to FSL.
DNA examination was conducted. The report has been proved as Ex.PW-19/A and PW-19/B. According to the report the blood is not detected on the clothes. Ld. Counsel submitted that this report itself shows that the accused were not there and does not link the accused persons with the commission of offence. It is prayed that as the prosecution has failed to link the clothes allegedly recovered from the accused persons with the commission of offence. The benefit of the same be State Vs. Narender etc. SC No:194/17 :: 111::
given to the accused persons and they be acquitted.
146. After hearing the arguments and going through the record, I found that in the present case prosecution has examined three recovery witnesses i.e. PW-6, PW-18 and PW-20. All the three witnesses stated that efforts were made to join public witnesses but none agreed. Neelu could not be joined at the time of recovery as she has to leave for her home. In my opinion there is no such law that statement of police witness can not be relied unless supported by public witness. Before reliance can be placed on the testimony of a witness it has to be seen whether the witness is cogent, reliable, trust worthy, unambiguous and inspires confidence. If the testimony of witness inspires confidence then the same can be relied. In the present case all the three witnesses are consistent, they have stood through the test of cross examination. They are reliable and trust worthy. The defence is not able to breach their trustworthiness during lengthy cross examination. Keeping in view all these facts, in my opinion, in view of the testimony of PW-6, PW-18 and PW-20, the circumstance of recovery of clothes of accused persons is proved.
147. These clothes were sent to FSL where the DNA finger printing was done. The blood was detected on the clothes recovered from Narender Ex.PW-6/Article 6. DNA was State Vs. Narender etc. SC No:194/17 :: 112::
isolated from the blood found on the clothe of accused Narender. The DNA isolated from the blood found on the lower of accused Narender matched with the DNA profile of the deceased. Ld. Defence counsel has taken the plea that these clothes does not belong to the accused. I have gone through the statement of accused under Sec.313 Cr.PC wherein he answered the question regarding recovery of his clothes as "It is incorrect", and is no where alleged that these clothes were not his or were planted upon him. Therefore I do not find any merit in this contention. There is no explanation by the accused as to how the blood of deceased reached his clothes except a bald argument that the blood was planted by the police. The matching of DNA profile points that accused was present at the time of commission of offence. He assaulted the deceased and that is why blood fell on his clothes and hence clinches the issue. Keeping in view the above discussions, in my opinion the onus which was on the prosecution has fully been discharged. Prosecution has been able to prove the recovery of clothes and at the same time the DNA profiling report nails the accused Narender.
148. Keeping in view the discussions on various circumstances, the eye witness account and the dying declaration proved on record. In my opinion prosecution has proved and established that accused persons facing trial State Vs. Narender etc. SC No:194/17 :: 113::
along with other co-accused not arrested formed an unlawful assembly to commit the offence of murder. They were armed with lathies, dandas and knives and in prosecution of the common object of that unlawful assembly murdered Chanchal by assaulting him. All the accused persons are therefore held guilty and convicted under Sec.147, 148 and 302 read with 149 IPC. They be heard on point of quantum of sentence on VIRENDER Digitally signed by VIRENDER KUMAR 21.08.18. KUMAR BANSAL Date: 2018.08.18 BANSAL 10:35:55 +0530 Announced in the open court (VIRENDER KUMAR BANSAL) today on 18.08.2018 ASJ/Pilot Court/North District Rohini Courts/New Delhi.
State Vs. Narender etc. SC No:194/17 :: 114::