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Fir No. 334/11; State vs . Veer Bahadur @ Budhiya Page 1 Of 66 on 29 November, 2014

IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS 
                                JUDGE­03:NW:ROHINI:DELHI


SESSIONS CASE No. 14/12
                                                            FIR No. : 334/11
                                                            P.S.      : Adarsh Nagar
                                                            U/S:      : 302/394/397/411/34 IPC
  
STATE 
                                                  Versus

VEER BAHADUR @ BUDHIYA
s/o Sh. Sher Bahadur 
r/o B­24, Kewal Park, 
Azadpur, Delhi.

Date of Institution                     :         27­02­2012
Date of arguments                       :         29­11­2014
Date of judgement                       :         29­11­2014

JUDGMENT

1. The case of the Prosecution, in brief, is that on 12.12.2011 on receipt of DD no. 91B regarding stabbing of a boy by knife at Road No. 51, Azadpur Red light, SI Baljeet along with Ct. Krishan Gopal reached at road No. 51, near Traffic Malkhana where they came to know that injured had already been taken to BJRM Hospital by PCR vehicle. Thereafter, SI Baljeet along with Ct. FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 1 of 66 Krishan Gopal reached BJRM Hospital where he came to know that vide MLC No. 35444/11, injured Arif s/o Rahmuddin who came there had been referred to LNJP Hospital. SI Baljeet collected the MLC of injured and reached to LNJP Hospital where injured was found under treatment and he was declared unfit for statement by the doctor. No eyewitness was found at the hospital. SI Baljeet made his endorsement on DD no. 91B and got the FIR registered u/s 307 IPC through Ct. Krishan Gopal. On 13.12.2011, on receipt of DD no. 10A from LNJP regarding the death of injured Arif, SI Baljeet Singh along with Ct. Krishan Kumar reached LNJP Hospital and collected the dead body, death summary and pullanda with sample seal containing the clothes of the deceased which were taken into police possession. Mohd. Tahir (Jija of deceased), brother of deceased and other family members/relative of deceased reached in the hospital. Thereafter, SI Baljeet prepared the inquest papers. Dead body identification statements were recorded and thereafter the postmortem of dead body was got conducted from MAMC Department Delhi of Forensic Medicine. The dead body was handed over to its relatives for last rites. Statement of Tarif, brother of deceased was recorded in which he stated that his deceased brother was doing the work of helper on the truck No. HR­55F­0625 whose FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 2 of 66 owner was his villager namely Mohd. Iiyas. On the night of 12.11.2011 after the seizing of truck of Mohd. Iliyas by traffic police when his brother Arif was going to take food/meal for him and Mohd. Iliyas towards Azadpur, two boys snatched the purse and mobile of Arif and stabbed knife to him. Thereafter, Mohd. Iliyas with the help of police took him to hospital and during his treatment, he succumbed to his injuries. Mohd. Iliyas came to village and told the whole story to him (Tarif) and thereafter Mohd. Iliyas remained in the village for making the arrangements of the last rites of Arif. Tarif with his other family members and his villagers went to the hospital where he identified the dead body of Arif and after postmortem, took the dead body of his brother. After the postmortem, doctor handed over blood gauze, pullanda sealed with the seal of MAMC KB­10 with sample seal which were taken into possession. Thereafter, Section 307 IPC was replaced with Section 302/394/397/34 IPC. Pullanda was deposited with Malkhana and further investigation was assigned to Inspector Binod Kumar.

2. It is further the case of the prosecution that on 14.12.2011, IO Inspector Binod Kumar tried to trace out the accused persons but no clue was found since he could not contact Ct. Somveer who made PCR call and truck driver Mohd. Ilias was also FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 3 of 66 in his village. Thereafter, IO recorded the statement of In­Charge PCR Van HC Swarop Singh who took the deceased Arif to BJRM Hospital and in his statement, HC Swaroop Singh stated that on information, he took the injured Arif along with the driver of truck to BJRM Hospital and two persons snatched the purse and mobile of Arif. On 15.12.2011 Mohd. Iliyas who was an eyewitness to the incident, came to PS and joined the investigation. IO along with Ct. Parsuram and Mohd. Iliyas reached at the spot i.e. road No. 51, in front of office of Jal Board, near MCD colony on the road leading to Azadpur from Mukundpur. Site plan was prepared and the crime team was called. Blood stained tiles on the footpath which were dried were photographed and both the tiles after removing through screwdriver, kept in cloth pullanda and taken into possession. Statement u/s 161 CrPC of Mohd. Iliyas was recorded in which he stated that he is the owner of truck No. HR 55 F 0625 and he himself used to drive the truck. He employed his own villagers namely Arif as cleaner/helper with him on the said truck. On 12.12.2011 at about 09.30 pm when he reached in front of Sanjay Gandhi Transport from his truck, traffic police made challan, seized the truck and deposited the said truck with the Traffic Malkhana at road no. 51. At about 10.20 pm he after giving Rs. 100/­ to Arif sent him for taking food FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 4 of 66 from Azadpur. He thought that in brining the food/meal, the same may not remain hot, so, he should also go to the hotel and take dinner with Arif in the hotel itself and he also left for Azadpur. When he reached at redlight, there was electric light of pole. In the light, At a distance of about 20/25 meters, he saw that two boys were scuffling with Arif and also caught hold Arif. While raising alarm, he ran fast and after seeing other persons there, one boy who was looking like Nepali, stabbed knife in the left side stomach of Arif and both the boys ran towards the East side colony after jumping the wall and became disappeared. Thereafter, Mohd. Iliyas took the injured to Traffic Malkhana where the constable on duty dialled 100 number and PCR vehicle took the injured Arif to BJRM Hospital from where he was referred to LNJP Hospital. He (Mohd. Iliyas) was also with Arif when he was under treatment in the hospital and he informed the relatives of Arif through phone. During treatment, Arif expired and doctor told that the dead body will be handed over after the postmortem. Thereafter, he went to his village and send the family member of Arif to the Hospital. He remained in the village for arrangements of the last rites of Arif and after finishing the last rites, he came to PS on 15.12.2011.

3. It is further the case of the prosecution that on FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 5 of 66 15.12.2011, IO recorded the statement of Ct. Somveer in which he stated that in the intervening night of 12/13­12­11, a truck seized from Sanjay Gandhi Transport Nagar, was brought and deposited in Malkhana. At about 10.45 pm, the truck owner Mohd. Illias with his helper Arif who was in injured condition came there and sought help from him. There was knife wound in the left side of stomach of Arif and blood was oozing out. After that he dialled 100 number. PCR van took the injured with Mohd. Ilias to BJRM Hospital. On 16.12.2011, IO with the staff members reached Rameshwar Nagar in search of the accused where a secret informer informed him that Budhiya who resides at Bhairo ki Dairy, Kewal Park and was involved in this case had come to Bhairo ki Dairy. Thereafter, at the instance of secret informer, IO along with his staff members apprehended Veer Bahadur @ Budhiya from B­24, Kewal Park, Delhi. Veer Bahadur was arrested and confessed that he along with his associate Varun @ Juri committed the offence of 12.12.2011. He also got recovered the looted purse and his clothes from his room, which were wearing by him at the time of committing the offence and the same were taken into police possession. At his instance, the knife was also recovered from the bushes behind the east side wall of MCD Colony. After that search of his associate Varun was also FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 6 of 66 made who was not found on that day. On 17.12.2011, two days PC remand of Veer Bahadur @ Budhiya was obtained. At the instance of accused Veer Bahadur @ Budhiya, Varun was apprehended from the road No. 51, Mukundpur near the gate of MCD Colony. During investigation, the age of the Varun came to known as 16 years. Father of Varun also came there. SI Sunny Kumar (Juvenile Welfare Officer) was also called there. In their presence, Varun was cursory searched and from the right pocket of his pants, one mobile phone of cherry colour without SIM card on which W­598, Made in China was written/engraved, was recovered. Varun confessed that it was the same mobile which was looted on 12.11.2011 by him along with his associate Veer Bahadur after stabbing knife to the victim. Mobile was seized and Varun was apprehended and he was kept muffled face. His apprehension memo was prepared. Social Background Report of JCL Varun was prepared and in the presence of his father, version of Varun was recorded. At the instance of Varun, site plan was also prepared. He was sent to OHB­II Sewa Kutir till 19.12.2011 by the order the Ld. Member, JJ Board. On 23.12.2011, the eyewitness identified Varun in the TIP conducted before the Ld. MM, Sh. Satbir Singh Lamba. On 04.01.2012, accused Veer Bahadur @ Budhiya refused for his TIP. On 06.01.2012, Mohd. Iliyas correctly FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 7 of 66 identified the purse and mobile in the TIP conducted by Ld. MM, Sh. Sidharth Mathur. The copy of challan vide which the above truck was seized by traffic police was seized. For getting opinion on weapon of offence, a written request with the recovered knife and inquest papers were deposited with Forensic Department MAMC but doctor asked to take report of FSL before seeking opinion on the knife since there was a piece of cloth on a corner of the knife which should have to be matched with the cloth of the deceased. Thereafter, the pullanda of knife was sent to FSL, Rohini, the result of which has not been received. After completion of investigation, chargesheet was filed against accused Veer Bahadur @ Budhiya u/s 302/394/397/411/34 IPC and separate chargesheet against the JCL Varun @ Juddi was filed before the Juvenile Justice Board.

4. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 394/397/302 IPC r/w section 34 IPC and u/s 411 IPC was framed against the accused Veer Bahadur @ Budhiya to which he pleaded not guilty and claimed trial.

5. Statement of accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. Accused did not opt to lead defence evidence.

FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 8 of 66

6. I have heard Ld. Counsel for accused and the Ld. Addl. PP for the State and have perused the entire records.

7. The Ld. Counsel for the accused argued that if Ct. Sombir was on duty at that time, then why Ct. Sombir was being hidden. IO SI Baljit never did anything. There is no report as to what was robbed. Photographs of the accused were taken in the PS and that is why he refused to participate in TIP proceedings. Nothing was clear what had gone from the deceased. There is no investigation of Rs. 3000/­. There is no description of the person. Recovery is planted. If family members were informed on phone then what was the need for PW9 to go to the village. PW9 was on the spot and thereafter he disappeared. PW9 never followed Arif since he did not see the incident. Purse and mobile phone did not belong to Arif but the same belonged to PW9. When Mahender was not there then how he signed. Family members also did not sign. Place of recovery is a public place which is accessible to everyone. There are contradictions in the manner of arrest, therefore, arrest is doubtful. The person/injured did not say about "Nepali" and no description. Nothing was told to PW13 by Arif. No secret information was received regarding the accused. The accused neither disclosed his involvement in the case nor pointing out was FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 9 of 66 made at his instance. The signatures of the accused were obtained on the documents/papers forcibly. The accused has been falsely implicated in this case.

8. The Ld. Addl. PP for State argued that the accused Veer Bahadur along with Varun @ Juri (juvenile) committed robbery and murder of Arif. PW9/eyewitness correctly identified the accused Veer Bahadur as the person who committed robbery and murder of Arif. PW9 also identified the robbed items i.e. mobile phone, purse having documents one card, copy of electoral I Card, two builties, one receipt, three currency notes of Rs. 10 denomination and some visiting cards. PW9 further identified one jacket, one T­shirt, one shirt, one baniyan of deceased Arif and one knife by which accused along with his associate (juvenile) stabbed Arif. The accused refused to participate in TIP. As per postmortem report, death was due to stab injury which was sufficient to cause death in ordinary course of nature and injuries were possible by the weapon sent to the Doctor for subsequent opinion. The knife was recovered at the instance of accused Veer Bahadur. The prosecution has proved its case beyond reasonable doubt that the accused committed robbery and murder of deceased Arif in this case. The Ld. APP for State further argued that there are some minor contradictions in the FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 10 of 66 testimonies of the PWs yet these minor contradictions do not go to the root or core of this case. The Ld. APP for the State also argued that independent public persons generally do not become witnesses to the criminal proceedings / investigations. Further, the accused cannot take benefit of defective/ faulty investigation, if any. The Ld. APP for the State, in support of his arguments, relied upon the judgments reported in the case of Bhagwan Dass Vs. State (NCT) of Delhi 2011 III AD (Cri.) (SC) 157; Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI. L.J. 3889.

9. Let us first examine the legal position in this case. Section 394 IPC speaks of two distinct classes of persons­those who actually caused hurt and those who do not but are jointly concerned in the commission of the offence of robbery. The guilty act of one is imputed to all who are joint with him provided the act is done in committing the offence of robbery. The provisions of section 397 IPC do not create any new substantive offence as such but merely serve as complementary to sections 392 and 395 IPC by regulating the punishment already provided for dacoity by fixing a minimum FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 11 of 66 term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34. Section 302 IPC provides punishment for murder.

10. Let us further examine the evidence led in this case as to whether the accused had committed the offence as charged or whether he has been falsely implicated. PW9 Mohd. Iliyas, in his examination in chief stated that he was the registered owner of truck No. HR­55F-0625 and also drive the vehicle. Deceased Mohd. Arif was working as cleaner on the above truck. Arif was from his village. On 12.12.2011, they loaded potato at Peepli, Haryana for Azadpur Mandi, Delhi. PW9 was driving the vehicle and cleaner / helper Arif was with him in the truck and they were coming to Azadpur Mandi from Peepli, Haryan via GT Road. On the same day, they reached at red light near Sanjay Gandhi Transport Nagar and traffic police officials stopped his truck and challaned. His truck was impounded and vehicle was deposited at road no. 51, Azadpur Traffic Malkhana. FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 12 of 66 PW9 further stated that on the same day at about 10.20 pm, he sent helper Arif to Azadpur for bringing meal / food and gave him Rs. 100/­ for this purpose. After some time when Arif left that place for Azadpur, PW9 thought since it was a winter season and in bringing the meal the same may not remain hot so, PW9 thought that he should also go to the hotel and take dinner with helper in the hotel itself. PW9 followed Arif and he was ahead of PW9. PW9 was a little behind him. When PW9 reached near red light, there was sufficient street light. PW9 saw from a distance of about 20­25 meters that two persons were snatching ("chhina jhapti kar rahe they") from Mohd. Arif. PW9 started to reach there fast. PW9 could not reach near Arif but saw in the light of the electric pole that one person who appeared to be like a Nepali, stabbed Arif with knife on the left side of stomach of Arif. The other culprit appeared to be of lesser age. PW9 in his examination in chief further stated that after assaulting Arif, both culprits went away towards east side after crossing the wall and went inside the colony. PW9 came near traffic Malkhana with Arif in injured condition. PW9 sought help from the traffic police and police was informed at no. 100 by that person. PCR van arrived and they were taken to BJRM Hospital. PW9 had also accompanied them in the PCR. Doctor at BJRM Hospital FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 13 of 66 referred Arif to LNJP Hospital considering his serious position. PW9 was also accompanying the Arif in the ambulance. They reached LNJP and Doctor started treatment there. PW9 made telephone call in the village to give the information after coming out from the Hospital and again went back to the Hospital. When PW9 returned to the hospital he came to know that local police had arrived. During treatment, Arif expired in the hospital. Doctor at the hospital told PW9 that dead body of Arif would be handed over to his relative after post­mortem, so PW9 left for his village to bring the family members of Arif and send them to Delhi. PW9 remained in the village for making necessary arrangements of last rituals (burial) of Arif. PW9 also stated that the accused present in the Court was the same person (who appeared to be as Nepali) who stabbed Arif by knife. PW9 correctly pointed out towards the accused and identified him.

11. PW9 in his examination in chief further stated that on 15.12.2011, he came to the PS and met IO. PW9 had shown the spot to the IO where some blood was found on the pavement. IO prepared the site plan, inspection was conducted thereon and photographs were also taken. IO took out the blood stained tile and other tile with the help of a screw driver and taken into police FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 14 of 66 possession after sealing the same through seizure memo Ex.PW9/A. The other culprit who was with the accused was aged 16 / 17 years. They had taken away Rs. 100/­, one mobile phone, one purse containing some documents of Arif after assaulting him by knife. PW9 identified his signature on the traffic challan at point B. PW9 was also shown the original traffic challan produced by Ahlmad of the Court of Sh. Ajay Nagar, Ld. MM (Traffic) on which PW9 stated that he had pleaded guilty before the Court concerned and Ld. Traffic Court admonished him. PW9 in his examination in chief also stated that on 30.01.2012, he had come to the Court and had identified the accused who was being produced by the IO and PW9 had identified the accused as the assailant who had stabbed Arif along with his associates and robbed cash, purse containing documents and his mobile. PW9 further stated that the mobile phone of deceased Arif was of having flap (Khulne wala) and was of red colour. The purse was of black colour. The knife used by accused was having cut signs (kata - kata nishan) and metallic. PW9 further stated that he can also identify the clothes of the deceased Arif who was wearing jacket, T­shirt, full sleeves shirt, banyan on the day of incident. PW9 had also identified the mobile phone, purse in the judicial TIP on 06.01.2012. PW9 identified one red colour mobile FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 15 of 66 phone having flap to be the mobile of deceased Arif as Ex. PW9/P1, one black coloured purse having some documents including one card in the name of Rahimuddin, photocopy of the electoral I­card of Rahimuddin, one builty, one receipt regarding weighing, one builty dated 13.11.11, another builty of dated 10.11.11, three currency notes of Rs. 10 denomination besides some visiting cards belongings of deceased Arif which were robbed by accused as Ex.PW9/P2 (colly.). PW9 also identified one jacket, one T­shirt, one shirt, one banyan, all having foul smell, blood stained to be the clothes of deceased Arif as Ex. PW9/P3 (colly.), one tile brick which was taken out by the IO in his presence on 15.12.2011 from the spot as Ex.PW9/P4, one knife having a slip of FSL pasted on its handle by which accused Veer Bahadur along with his another associate (juvenile) stabbed Arif on 12.12.2011 as Ex.PW9/P5.

12. During his cross­examination, PW9 stated that he followed Arif when he had moved only 10­20 paces thinking that they both will have dinner at the hotel. There was none else on the truck except him and Arif. When accused along with his associate was grappling with Arif at that time, PW9 was 35 feet behind Arif. There was no truck parked on the way on which Arif moved to take meal and he followed him. Due to odd night hours, it was lonely at the FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 16 of 66 spot at that time and no other public person was moving there. When the question was put to PW9 that could he tell the intensity of the light at the spot, PW9 replied that "Jabardast light thi" (Strong light arrangement was there.). PW9 was further questioned whether he raised any alarm after seeing the incident to which he answered that he raised alarm but he did not go near Arif to save him due to the fear of knife which was there in the hand of accused and he became stationary there. None came there after hearing his alarm. One auto passing from there stopped for a moment and moved away from there. PCR officials made inquiries from Arif on the way from said truck parking to BJRM Hospital and Arif replied to their queries as he was alive at that time. PCR officials also made inquiries from him. PW9 accompanied Arif from BJRM Hospital to LNJP Hospital and remained there till the time Arif was alive i.e. about 03.00 am. PW9 left LNJP Hospital at about 06.00 / 07.00 am on 13.12.2011 to go to his village and the village of Arif as they both hail from the same village. PW9 came back to Delhi from his village on 15.12.2011 in the afternoon on his own without receiving any call from anybody and reached PS Adarsh Nagar. PW9 further stated in his cross­examination that he left Delhi again at about 10.00 / 11.00 am on 16.12.2011 to his village. After 16.12.2011, once again he FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 17 of 66 visited PS Adarsh Nagar, Delhi in connection with this case along with the family members of Arif and remained there for 2­3 hours but the date he did not remember. Police obtained his signatures and the signatures of family members of Arif on some documents on that day. The said documents were not read over to him but his signatures were not obtained on any blank paper. PW9 had told the police that on 15.12.2011 and 16.12.2011 about the robbed articles of Arif. PW9 denied that he was deposing falsely at the instance of IO or that he never followed Arif or that he did not see the incident or that he was planted as an eyewitness by the police. PW9 further denied that mobile phone and purse identified by him in the Court did not belong to Arif or the same belongs to him.

13. PW1 Ct. Subhash, in his examination in chief stated that on 15.12.2011, he was posted at Mobile Crime Team, N/W Distt. as photographer. On that day on receipt of information, he along with the In­charge, Mobile Crime Team SI Devender, ASI Sajid Hasan finger print expert had gone to the spot i.e. Road No. 51, going from the side of Mukundpur to Azadpur, opposite MCD Colony Flats, Delhi. Inspector Binod, IO of the case was present there along with other staff. On the instruction of IO as well as I/C Mobile Crime Team SI Devender, PW1 had taken 6 photographs of the spot from FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 18 of 66 his official camera. PW1 brought the negatives of those photographs vide Ex. PW1/A­1 to A­6 and there corresponding photographs placed on file as Ex. PW1/B­1 to B­6. PW1 also observed blood stains on the spot on reaching there. PW2 SI Devender Singh, in his examination in chief stated that on 15.12.2011, he was posted as I/C, Mobile Crime Team, N/W Distt. On that day on receipt of the information, he along with photographer Ct. Subhash and ASI Sajid Hasan fingerprint expert had gone to the spot i.e. Road No. 51, going from the side of Mukundpur to Azadpur, opposite MCD Colony Flats, Delhi and met with Inspector Binod, IO of the case along with other staff. PW2 had inspected the spot from 7.10 pm to 7.30 pm. Photographer Ct. Subhash had taken 6 photographs of the spot from his official camera vide Ex. PW1/B­1 to B­6. PW2 also observed blood stains on two tiles of the pavement. PW2 prepared his detailed report vide Ex.PW2/A. PW3 Ms. Rachna Tiwari Lakhanpal (DJS), M.M., Rohini Courts, Delhi, in her examination in chief stated on 04.01.2012, she reached District Jail Rohini for TIP of accused Veer Bahadur @ Budhiya. Inspector Vinod Kumar Singh identified the witness. Accused refused to participate in the TIP. He was warned that refusal to participate would infer adverse inference against him FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 19 of 66 but accused still insisted not to participate in the TIP despite warning. PW3 recorded his statement separately and gave her certificate regarding genuineness of TIP. PW3 proved the TIP proceedings as Ex. PW3/A. Application of IO for conducting TIP proceedings was proved as Ex.PW3/B and application for supply of copy of TIP proceedings as Ex.PW3/C.

14. PW4 W/HC Parphulla, in her examination in chief stated that on 13.12.2011, at about 8.30 am, Duty Const. Rakesh from JPN Hospital gave information that the injured Arif who was admitted in the hospital after sustaining injury in brawl vide MLC No. 134864/11 of BJRM Hospital, was declared. PW4 recorded this information vide DD No. 10A Ex. PW4/A and copy of the same was given to SI Baljeet Singh for necessary action. PW5 Mohd. Tahir, in his examination in chief, stated that on 13.12.2011, he received a call from his brother­in­law Tarif that his another brother­in­law namely Arif had expired. On this information, PW5 reached at the house of his brother­in­law Tarif. He told PW5 that the truck driver Ilias telephonically informed him that his truck was challaned and impounded by the traffic police. Arif was working on that truck as khalisi. Ilias had given him Rs. 100/­ for bringing the meal from Azadpur at about 10.20 pm. Ilias informed that he started following FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 20 of 66 Arif as he wanted to have the dinner at Azadpur, otherwise the meal will get cool. When Ilias reached near the red light, he saw that Arif was caught by two persons and they assaulted Arif with knife on his stomach and thereafter fled away after jumping the MCD wall. At that time, he was having Rs. 100/­, one mobile phone of red colour having no. 7876544735. Thereafter, PW5 reached LNJP Hospital and identified the dead body of his brother­in­law Arif vide Ex. PW5/A. PW5 had also signed the inquest form 25.35 vide carbon copy Ex. PW5/B. After postmortem, PW5 had received the dead body of Arif through receipt Ex. PW5/C. During cross­examination by the Ld. defence counsel, PW5 stated that he received the information regarding death of Arif on telephone made by his brother­in­law Tarif. PW5 came to know about the incident through driver Ilias at about 4.00­4.15 am on 13.12.2011.

15. PW6 SI Manohar Lal, Draftsman, in his examination in chief stated that on 22.12.2011, he had gone to the spot i.e. near MCD Colony, Road No. 51, Azadpur, Delhi along with IO Inspector B.K. Singh where he prepared the rough notes of the spot after measurement. On 23.12.2011, he prepared the scaled site plan on the basis of the rough note and handed over the scaled site plan Ex. PW6/A to the IO. PW7 SI Sri Krishan, in his examination in chief FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 21 of 66 stated that on 12.12.2011, vehicle No. HR­55F­0625 was impounded u/s 260 of MV Act at Mukarba Chowk, in front of Sanjay Gandhi Transport Nagar on Azadpur Road vide challan No. 274740. PW7 proved the photocopy of challan No. 274740 as Ex.PW7/A and seizure memo of the said challan as Ex. PW7/B. PW8 Sh. Sidharth Mathur (DJS), ARC, Karkardooma Courts, Shahdara, Delhi, in his examination in chief stated that on 06.01.2012, he conducted the TIP proceedings Ex. PW8/A of case property in which witness Ilias correctly identified one mobile phone and one black colour purse. Application of IO for conducting TIP proceedings was proved as Ex.PW8/B and application of IO for supply of copy of TIP proceedings as Ex.PW8/C.

16. PW10 Dr. Meena Kumari, Junior Resident (PG Second year) LNJP Hospital, Delhi, in her examination in chief stated that deceased Arif s/o Rahimuddin, male 19 years was admitted in the LNJP Hospital on 13.12.2011 at about 12.56 am (midnight) and he expired on the same day i.e. on 13.12.2011 at about 03.00 am. He was brought with alleged history of assault with stab injury on left lower chest. On physical examination, injured was found drowsy, BP was unrecordable, pulse not palpable, air entry decreased on left side, approximately 6 x 4 cm stab injury on the left chest (lower), four FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 22 of 66 units of whole blood and two units of fresh frozen Plasma were transfused, two inter­coastal drainage tubes were inserted on the left side of the chest but the injured did not survive and expired. PW10 proved the death summary Ex. PW10/A in her handwriting. Cause of death was stab injury on left lower chest with hypo volumeic shock with cardiac arrest. PW11 Dr. R. S. Mishra, CCMO, BJRM Hospital, Delhi, has also been examined as PW14 and in his examination in chief stated that on 12.12.2011, he was posted at BJRM Hospital as CMO and he medically examined injured Arif brought by HC Swaroop Singh of PCR and friend of injured namely Mohd. Iliyas. The injured was having the history of assault. On examination, he observed following injuries on his body:

(1)Incised wound 6 cm x 3 cm on left lower interior coastal area;

(2)Small incised wound superficial on left side of cheek;

After initial examination, the injured was referred to Surgery Department. PW11 proved the MLC of Arif as Ex. PW14/A. From Surgery Department, the injured was referred to higher centre for further management.

17. PW12 HC Kartik stated that in the intervening night of 12/13.12.2011, at about 3.20 am (on 13.12.11), Ct. Krishan Gopal had come to the PS with rukka sent by SI Baljeet for registration of FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 23 of 66 FIR u/s 307 IPC. On the basis of same, he registered the present FIR vide Ex. PW12/A and made his endorsement on rukka vide Ex.PW12/B. The requisite certificate u/s 65B of Indian Evidence Act issued by SHO Inspector Virender Kadyan was proved as Ex.PW12/C. The kayami DD regarding registration of FIR was recorded by him vide DD No. 5A and proved as Ex. PW12/D. PW13 HC Swaroop Singh, in his examination in chief stated that in the intervening night of 12/13.12.2011, he was posted at PCR Unit (NW) Zone as HC at PCR Van Commander 16 from 08.00 pm to 08.00 am as In­Charge. On that night at about 10.47 pm, he received information on wireless that one boy was stabbed at Azadpur road No. 51 red light and he along with PCR van and staff reached at the spot at 10.50 pm where they did not find anyone but a little ahead of the red light, on the other side of the road, three persons were standing. They made a signal and they reached near them. One out of them was Arif, second one was Illyas and the third was a traffic Constable who had made the call at number 100. At 10.57 pm, they took Arif and Illyas in their PCR van and moved towards BJRM Hospital and got Arif admitted at BJRM Hospital with the help of duty HC Jai Kumar. The injured told PW13 that he was working as a conductor on the truck and he was going to take meal and near FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 24 of 66 red light, two boys robbed him of his purse, mobile and Rs. 3000/­ and stabbed him. After their reaching at the BJRM hospital, SI Baljeet Singh of local police station also reached at the hospital. But prior to that injured had already been referred to LNJP Hospital. PW13 proved the entry in PCR register as Ex. PW13/A. During cross­examination by the Ld. defence counsel, PW13 stated that injured was bleeding profusely and his clothes were blood stained but he did not remember whether there was any blood on the ground where he was standing or not. He was able to walk with the help. PW13 had noted down the name, father's name and address of Arif but he did not ask his mobile number from him. PW13 denied that nothing was told to him by Arif.

18. PW15 Ct. Somvir, in his examination in chief stated that in the intervening night of 12/13­12­2011, he was posted at Traffic Circle Model Town as Constable. On that night, his duty was from 08.00 pm to 08.00 am on the point where the impounded vehicles were parked. Truck No. HR55­F­0625 was also impounded by the police from Sanjay Gandhi Transport Nagar and was parked at the point. On that night, at about 10.45 pm, owner of the truck Mohd. Iliyas along with his helper Arif came to him and Mohd. Arif was having a wound on the left side of his abdomen and was bleeding. FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 25 of 66 On the asking of Mohd. Iliyas, PW15 passed the information at 100 number from his mobile phone. PCR arrived there and took Arif and Mohd. Iliyas to BJRM Hospital. PW15, in his cross­examination, stated that whatever was told to him by Mohd. Iliyas, he passed that information at number 100. Mohd. Arif was bleeding profusely and what to say of his shirt, even his pants and left side sleeper (chappal) were wet with blood.

19. PW16 HC Laxmi Narain, in his examination in chief stated that on 12.12.2011, he was posted at PS Adarsh Nagar as DO from 04.00 pm to 12.00 night. At about 10.55 pm, he received a message from wireless operator regarding the incident at house No. 51, Azadpur Redlight. The said message was reduced into writing vide DD no. 91B dt. 12.12.2011 Ex. PW16/A. PW17 Dr. Neeraj Choudhary, Medical Officer, BJRM Hospital, Delhi, in his examination­in­chief stated that he was deputed to depose on behalf of Dr. Shailesh regarding MLC No. 35444. On 12.12.2011, injured Arif was brought in casualty with alleged history of physical assault. The injured was first examined by Dr. R.S. Mishra who referred the patient to Surgery department and seen by Surgery SR Dr. Shailesh vide MLC Ex. PW14/A. The injured was referred to higher centre for further management.

FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 26 of 66

20. PW18 Mohd. Tarif in his examination in chief stated that on 13.12.2011, he received a call from Mohd. Alias, his co­villager and he was the owner/driver of truck no. HR­55 F­0625 in which his younger brother Arif was working as conductor. Mohd. Alias told him that his truck was challaned and impounded by the traffic police and truck was parked at Azad Pur Subzi Mandi shed. Thereafter, Mohd. Alias further told him that he had given a sum of Rs.1,000/­ to his brother Mohd. Arif for bringing the meal from Azad Pur and he started following Arif as he wanted to have the dinner at Azad Pur, otherwise the meal will get cool. When he reached near red light, he saw that Arif was caught hold by two persons and they assaulted Arif with knife on his stomach and thereafter, fled away from the spot after jumping the MCD wall. He further told PW18 that at that time Mohd. Arif was having a sum of Rs.1000/­ and a mobile phone bearing number 7876544735 of red colour. On receiving this information from Mohd. IIias, PW18 along with his brother in law Tahir came to Delhi and on the next morning they reached at LNJP where in the mortuary he along with his brother in law identified the dead body of his younger brother Mohd. Arif vide identification memo Ex. PW­18/A. After the postmortem on the body of his younger brother Arif, he along with his brother in law received the FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 27 of 66 dead body vide receipt already Ex. PW­5/C. PW18 further stated that during the course of investigation, he told the police that he had purchased the mobile phone from one truck driver at Alwar whose name was not known to him. At that time the SIM number of said mobile was 7876544735. It was double SIM mobile set and thereafter, PW18 inserted his own SIM bearing number 9992514341 and it was handed over to his younger brother Arif (since deceased) for use. Thereafter, police recorded his statement in this regard.

21. During cross­examination by the Ld. defence counsel, PW18 stated that he had received the telephonic call in the night at about 10:30 pm on 13.12.2011 of Mohd. Ilias. At that time he only informed him that his brother was stabbed with knife and he did not inform him about death of Arif. Mohd Ilias met him in his village at about 6:00 am in the morning prior to he along with his brother in law living the village to Delhi. They reached hospital at about 7:30 ­8:00 am. Police officials met him in the hospital. PW18 provided the mobile number of Mohd. Illias to the police and also provide them his name, parentage and address. They went to the police station Adarsh Nagar at about 11:30 am. His statement was recorded by the police at the hospital as well as in PS. PW18 had told each and everything to the police which was in his knowledge regarding this FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 28 of 66 case. PW18 denied that he had not purchased the mobile phone from any truck driver or that he could not produce the ownership proof. He volunteered that it was a Chinese mobile. PW18 further denied that Mohd. Illias never informed regarding the manner in which he deposed in his examination in chief.

22. PW19 Ct. Krishan Yadav, in his examination in chief stated that on 25.01.2012, he received six exhibits along with two sample seals from MHC (M) HC Radhey Shyam and deposited the same at FSL Rohini vide RC no. 5/21/12. The receipt was handed over to MHC (M). PW20 Ct. Pooran, in his examination in chief stated that on 13.12.2011, on receipt of DD No. 10A, he had gone at the place on incident i.e. Road No. 51, near Traffic Malkhana, Azadpur, Delhi, where SI Baljeet was found present and the copy of the above­said DD was handed to him. Thereafter, PW20 along with SI Baljeet reached the Mortuary of LNJP Hospital where the documents of inquest proceedings along with a request for conducting postmartem examination on the dead­body of deceased Arif were handed over to the concerned Doctor by SI Baljeet. Thereafter, the postmartem examination on the dead­body of deceased Arif was got conducted and the dead­body was handed over to them. Thereafter, the dead­body of the deceased Arif was FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 29 of 66 handed over to the relatives/guardians of the deceased for cremation. After postmartem examination on the dead­body of the deceased Arif, the exhibits i.e. blood gauze piece sealed with the seal of MAMC KB­10 and one sample seal having same impression were handed over to SI Baljeet who had taken the same into police possession vide seizure memo Ex. PW20/A. PW21 HC Radhey Shyam, MHCM proved relevant entries no. 3842, 3848/11, 3849/11, 3852/11 vide Ex. PW21/A to PW21/D of register No. 19. PW21 also proved copy of RC no. 5/21/12 as Ex. PW21/E and receipt / acknowledgement of the same brought by Ct. Kishan Yadav as Ex. PW21/F. PW21 denied in his cross­examination that the case property was tampered with upon the asking of IO or that the entries were antedated.

23. PW22 Dr. Rattan, Jr. Resident, Forensic Deptt., Maulana Azad Medical College, Bahadurshah Zafar Marg, New Delhi identified the handwriting and signatures of Dr. Kulbhushan Prasad on postmartem report no. 1183/11 dated 13.12.2011 pertaining to Aarif vide Ex. PW22/A. As per the report, time since death was about 12 hours. On examination of this report, the following injuries were found:­ Injury No. 1:­ Incised wound of size 3 cms x 0.4 cm x 0.3 cm FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 30 of 66 present over left cheek. 4 cm below the left eye brow. 4 cms outer to left angle of mouth.

Injury No. 2 :­ Incised wound of size 4 cms x 0.1 cm x 0.1 cm present over left cheek. 1.5 cms below to injury no. 1 and 1.5 cm below and outer to left angle of mouth.

Injury No. 3 :­ Stitched stab wound of length 5 cms (stitches four in number) present over left side of chest. 9 cms below left nipple and 6 cms from midline. On opening the stitches, the stab wound of size 5 cms x 2 cms x cavity deep. On dissection, effusion of blood present in sub cutaneous tissue underneath and in inter coastal muscle at the level of sixth inter coastal space with sharp cut in seventh rib left side, tear of pericardium laceration of size 3 cms x 2.5 cms x 1 cm present over lateral wall of left ventricle.

As per the said postmartem report, death was due to haemorrhage shock consequent to stab injury to chest. Injury no. 3 was sufficient to cause death in ordinary course of nature individually and collectively. All injuries were ante­mortem in nature caused by sharp edged weapon. After postmartem, blood on gauze piece was sealed and was handed over to the IO. PW22 also proved the subsequent opinion regarding weapon of offence vide Ex. PW22/B. After examination of the weapon and going through the PM report, FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 31 of 66 all the injuries were found to be possible by weapon submitted. The sketch of knife prepared by the Dr. Kulbhushan Prasad was also proved vide Ex. PW22/C.

24. PW23 SI Shri Bhagwan, in his examination in chief stated that on 06.01.2012, he collected two pullandas from MHC(M) which were having the seal of BKS and took the same to the Court of Sh. Sidhharth Mathur, Ld. MM for identification of the case property. After TIP proceedings, he deposited these pullandas in Malkhana.

25. PW24 HC Naresh Kumar, in his examination in chief stated that on 16.12.2011, he along with Inspector Binod and Ct. Parshu Ram joined the investigation of the present case and they reached Rameshwar Nagar, where secret informer met them and stated to Inspector Binod that accused Veer Bahadur @ Budhiya, involved in the present case, had arrived at Mahender Ki Dairy where he used to work and reside and would fled away from there after packing his clothes. Thereafter, they along with that secret informer reached at house no. B­24, Kewal Park, Delhi and at the instance of secret informer, they apprehended the accused Veer Bahadur @ Budhiya (correctly identified). Accused Veer Bahadur @ Budhiya confessed his involvement in the present case and FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 32 of 66 disclosed that he had committed the incident in question along with his friend namely Varun @ Juri. Thereafter, accused Veer Bahadur @ Budhiya was arrested and personally searched vide arrest memo and personal search memo exhibited as Exs. PW24/A and PW24/B. The disclosure statement of Veer Bahadur @ Budhiya was recorded vide Ex. PW24/C. Thereafter, accused Veer Bahadur @ Budhiya took them to the place of incident i.e. Road No. 51, pavement in front of MCD colony on the road which leads from Mukundpur to Azadpur vide pointing out memo Ex. PW24/D. From there, accused Veer Bahadur @ Budhiya by walking ahead took them towards bushes behind north side direction wall of MCD colony near Kewal Park and took out one blood stained knife (khanjar) from the said bushes. Inspector Binod prepared the sketch of the said knife vide Ex. PW24/E. The total length of said knife was 28.7 cms, the length of its blade was 19 cms, length of the handle was 9.7 cms and width of blade was 4.1 cms. Inspector Binod prepared the pullanda of knif and sealed it with the seal of BKS. Seal after use was handed over to PW24. That sealed parcel was taken into police possession vide seizure memo Ex. PW24/F. Thereafter, accused Veer Bahadur @ Budhiya took them to his house i.e. at B­24, Kewal Park, PS Adarsh st Nagar, in the room situated at 1 floor of the said house and took out FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 33 of 66 one black coloured purse from the right side pocket of the capri/short (nikar) which was hanging on the khunti affixed at backside of the door of the room. On the said purse, some alphabets in English were written i. e. PIN. From the said purse, photocopy of identity card of the father of the deceased, visiting card, a cash of Rs. 30/­ and some documents related to the transport were recovered. Inspector Binod prepared pullanda of the said purse and sealed the same with the seal of BKS and took the same into police possession vide seizure memo Ex. PW24/G. The accused Veer Bahadur @ Budhiya also handed over some clothes i. e. capri and sweater shirt to Inspector Binod which were also hanging on the above­said khunti and stated that those clothes were wearing by him at the time of incident. Thereafter, Inspector Binod prepared pullanda of the said clothes and sealed the same with the seal of BKS and took the said pullanda into police possession vide seizure memo Ex. PW24/H. During the PC remand of the accused Veer Bahadur @ Budhiya when they were searching for co­accused Varun @ Juri and reached at the gate of MCD colony, near Kewal Park, PS Adarsh Nagar, accused Veer Bahadur @ Budhiya pointed towards one boy as Varun @ Juri. On the instance of accused Veer Bahadur @ Budhiya, they apprehended the accused Varun @ Juri FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 34 of 66 and on query from Varun @ Juri, they came to know that his age was less than 18 years. Inspector Binod called Sh. Jagmohan, father of the accused Varun @ Juri at the said place and also called JWO SI Sunny. In presence of the those persons, they formally searched the co-accused Varun @ Juri and on his search one cherry colour mobile phone make Soly Blison without sim and battery was recovered from the right side pocket of his jeans pent. The accused Varun @ Juri disclosed that the said mobile phone was robbed along with Veer Bahadur @ Budhiya on the date of incident. Thereafter, the said mobile phone was seized vide seizure memo Mark X­1. Thereafter, the apprehension memo Mark X­2 of accused Varun @ Juri was prepared and he was personally searched vide personal search memo Mark X­3 and he also pointed the place of incident and pointing out memo Mark X­4 was prepared on his instance. Thereafter, accused Varun @ Juri was produced before the members of Juvenile Court at Kingsway Camp, Delhi. PW24 identified one cherry coloured mobile phone make Soly Elisom Ex. PW9/P­1 which was recovered from the possession of co-accused Varun @ Juri; one black coloured purse and some documents including one card in the name of Rahimuddin, photocopy of electoral identity card of Rahimuddin, one builty, one receipt FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 35 of 66 regarding weighing, one builty dated 13.11.2011, builty dated 10.11.2011, three currency notes of Rs. 10/­ each and some visiting cards vide Ex. PW9/P­2 which was recovered from the pointing out of accused Veer Bahadur; one knife (khanjar) as Ex. PW9/P­5 which was got recovered by accused Veer Bahadur; one capri/nikar and one sweater shirt Ex. PW24/A1 which were got recovered by accused Veer Bahadur.

26. During cross­examination, PW24 stated that on 16.12.2011 when he had joined the investigation of the present case along with Inspector Binod and Ct. Parshu Ram, they left the PS Adarsh Nagar at about 10:30 am - 11:00 am. The secret informer gave the secret information to Inspector Binod in their presence. They reached at house no. B­24, Mahender Ki Dairy at about 4:45 pm and the said dairy was about 1-1½ km away from the PS Adarsh Nagar. On receipt of the said information, they directly visited Mahender Ki Dairy on a four wheeler. The accused Veer Bahadur was arrested at about 5:00 pm. Inspector Binod inquired from the accused Veer Bahadur at B­24, Mahender Ki Dairy for about 5 ­ 10 minutes and during such inquiry, accused Veer Bahadur disclosed about the name of Varun @ Juri. Accused Veer Bahadur did not disclose about the mobile phone, knife and purse at B­24, Mahender FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 36 of 66 Ki Dairy and about the address of Varun @ Juri, during his inquiry. Accused Veer Bahadur was found present in the house i.e. B­24, Mahender Ki Dairy when they entered the house. The gate of the said house was not locked, when they pushed the door, the same was opened and they entered inside that house. They left that house with accused Veer Bahadur at about 6:00 pm. PW24 further stated in his cross­examination that on the basis of disclosure statement of the accused Veer Bahadur, they came to know about the involvement of his associate (juvenile) and his address in the present case. First of all, they along with accused Veer Bahadur reached at the place of incident of the present case and thereafter, reached at the place from where knife was recovered. The accused Veer Bahadur himself lifted the knife from the place of recovery and handed over the same to the IO. On 16.12.2011, after recovery of the said knife on the pointing of accused Veer Bahadur, they reached at the house of accused Veer Bahadur along with him at about 9:30 pm. Nobody was present in the room from where the accused Veer Bahadur got recovered the purse. No person was present at the first floor where the said room was situated from where the purse was recovered. PW24 denied that no secret information was received on 16.12.2011 regarding the accused Veer FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 37 of 66 Bahadur or that he did not join the investigation at any point of time. PW24 further denied that accused Veer Bahadur did not disclose of his involvement in the present case. PW24 also denied that no pointing out was done by accused Veer Bahadur. PW24 further denied that no recovery was affected at the instance of accused Veer Bahadur. PW24 also denied that the signatures of the accused Veer Bahadur have been taken forcibly on the documents/memos.

27. PW25 Constable Parshuram, in his examination in chief stated that on 15.12.2011, he joined the investigation in this case along with the IO Inspector Binod Kumar Singh and eyewitness Mohd. Iliyas. They left the PS together at about 2:00 pm and went to the spot at Road No. 51, in front of Delhi Jal Board office from Mukandpur to Azadpur side Road. They reached on the divider/patari between service road and main road. Mohd. Iliyas told them that this was the spot where his associate met with accident and his blood which was dried was found on the cemented tiles on the patari. IO gave the message to the Crime Team and prepared site plan. Crime Team took photographs of the spot. After the proceedings of the Crime Team, IO removed tiles with blood stains and earth control from the spot with the help of screwdriver. These tiles and earth control were kept in separate pieces of cloth of white FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 38 of 66 colour and prepared pulandas and sealed these pulandas with the seal of BKS. The same were seized vide seizure memo already Ex. PW9/A. Thereafter, on 16.12.2011, he along with the IO and HC Naresh Kumar left the Police Station in the morning between 10:30 to 11:00 am for search of the accused within the jurisdiction of P.S. Adarsh Nagar. When they reached Rameshwar Nagar, they met one secret informer who told the IO that accused Veer Bahadur who was involved in this case had just reached his house for taking his clothes and was about to abscond. Then they along with the secret informer went to H. No. B­24, Kewal Park and went to the room of the accused after taking permission from the dairy owner who was the owner of the house namely Mahender Singh. Accused Veer Bahadur was present in his room and he was arrested at the pointing out of the secret informer. Then, PW25 called Mahender Singh who signed on arrest memo Ex. PW24/A at point C.

28. PW25 further stated that accused Veer Bahadur @ Budhiya took them to the place of incident i.e. Road No. 51, pavement in front of MCD colony on the road which leads from Mukundpur to Azadpur and pointing out memo was prepared in this regard. From there, the accused Veer Bahadur @ Budhiya by walking ahead took them towards bushes behind north side direction FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 39 of 66 wall of MCD colony near Kewal Park and took out one blood stained knife (khanjar) from the said bushes. Thereafter, the accused Veer Bahadur @ Budhiya took them to his house i.e. at B­24, Kewal Park, st PS Adarsh Nagar in the room situated at 1 floor of the said house and took out one black coloured purse from the right side pocket of the capri/short (nikar) which was hanging on the khunti affixed at back side of the door of the room. On the said purse, some alphabets in English made up of iron metal were affixed and these alphabets were "Pindengbno". These letters were also engraved on the purse. From the said purse, photocopy of identity card of the father of the deceased, visiting card, a cash of Rs. 30/­ and some documents related to the transport were recovered. The accused Veer Bahadur @ Budhiya also handed over some clothes i.e. capri and sweater shirt to Inspector Binod which were also hanging on the above­said khunti and stated that these clothes were wearing by him at the time of incident in question. Thereafter, accused Veer Bahadur took them to the house of his associate Varun @ Judi but he was not present in the house. On 17.12.2011, PW25 again along with Inspector Binod and HC Naresh joined the investigation of the present case. They took out the accused Veer Bahadur @ Budhiya from the lock up and left the PS for search of the co­accused Varun FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 40 of 66 @ Juri but he was not traced. During the PC remand of the accused Veer Bahadur @ Budhiya when they were searching for co­accused Varun @ Juri and reached at the gate of MCD colony, near Kewal Park, PS Adarsh Nagar, accused Veer Bahadur @ Budhiya pointed towards one boy and stated that the said boy was Varun @ Juri. On the instance of accused Veer Bahadur @ Budhiya, they apprehended the accused Varun @ Juri and on query from Varun @ Juri, they came to know that his age was less than 18 years. PW25 also identified one cemented tile Ex. PW9/P­4; earth sample Ex. PW25/A which was taken out by the IO from the spot in his presence.

29. PW25 stated in his cross­examination by the Ld. defence counsel that IO recorded the statement of Mohd. Iliyas at the spot i.e. Road No. 51, in front of the O/o Delhi Jal Board. The blood was lying on the patri. The spot where the blood was lying was 50 yards away from Traffic Malkhana. Several vehicles were parked in Traffic Malkhana. Two or three vehicles were also parked outside the Malkhana and those vehicles included all type of vehicles. Mohd. Iliyas had told the IO that accused jumped from the MCD wall and escaped in the MCD colony. PW25 remained at the spot throughout the proceedings and once he went to take screw driver (pech­cus) FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 41 of 66 from the police booth. IO prepared arrest memo and personal search memo of the accused in his presence at B­24, Kewal Park, Delhi, after arresting the accused. They went in the search of Varun @ Juri and for the recovery of the case property i.e. weapon of the offence at the same time when they proceeded from PS. The accused Veer Bahadur was not with them when they went in search of Varun @ Juri. PW25 denied that he did not join the investigation at any point of time. PW25 also denied that no secret information was received. PW25 further denied that accused Veer Bahadur did not disclose of his involvement in the present case. PW25 also denied that no pointing out was done by accused Veer Bahadur. PW25 further denied that no recovery was affected at the instance of accused Veer Bahadur.

30. PW26 Ct. Kishan Gopal in his examination in chief stated that on 12.12.2011, at about 10:55 pm, SI Baljeet Singh received DD no. 91B and they both reached at the spot i.e., Road No. 51, Azadpur near Traffic Malkhana where they came to know that the injured was taken to the BJRM Hospital by PCR van. They reached at BJRM Hospital and SI Baljit Singh obtained MLC of Arif S/o Rahamuddin. As per the said MLC, doctor referred Arif to LNJP Hospital. They reached at LNJP Hospital where injured Arif was FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 42 of 66 found under treatment. No eyewitness met there. They reached at the spot but no eyewitness met there. SI Baljit prepared ruqqa and got the FIR registered through PW26. PW26 denied in his cross­ examination that he never reached the spot on receipt of DD No.91B along with SI Baljit. PW26 further denied that he never went to PS Adarsh Nagar for registration of the case.

31. PW27 Retired SI Baljeet Singh, in his examination in chief stated that on 12.12.2011, he received DD No. 91­B and regarding stabbing to one boy at Road No. 51, Red Light, Azadpur, Delhi and he along with Ct. Krishan Gopal reached at Road No. 51, near Traffic Malkhana, Azadpur, Delhi, where they came to know that the injured was taken to BJRM Hospital, Jahangir Puri, Delhi, by PCR van. PW27 along with Ct. Krishan Gopal reached at BJRM Hospital and collected MLC of injured Arif. From the MLC, PW27 came to know that the injured was referred to LNJP Hospital. Accordingly, PW27 along with Ct. Krishan Gopal reached at LNJP Hospital where the injured Arif was found under treatment. The patient was unfit for statement. No eyewitness met him at the hospital. PW27 along with Ct. Krishan Gopal came back to the above stated spot i.e. Road No. 51, near Traffic Malkhana, Azadpur, Delhi, but no eye­witness met him there. As per the MLC, the FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 43 of 66 offence u/s 307 IPC was made out. PW27 prepared tehrir Ex. PW27/A and got the FIR registered through Ct. Krishan Gopal. On 13.12.2011 at about 8:30 am, Ct. Puranmal of PS Adarsh Nagar handed over to him DD No. 10­A regarding the death of injured Arif in the hospital. PW27 along with Ct. Puranmal visited LNJP Hospital and collected the death summary documents regarding the deceased Arif. The Doctors of LNJP Hospital handed over him one sealed pullanda with the seal of LNJP Hospital containing clothes of deceased Arif and the same was taken into police possession vide seizure memo Ex. PW27/B. In the Mortuary, relative of deceased Arif were present and they identified the dead body of Arif and PW27 recorded their statements in this regard vide Exs. PW5/A and PW18/A. PW27 prepared inquest papers regarding deceased Arif vide Ex. PW5/B. PW27 got conducted the post­martem on the dead body of deceased Arif and after post­martem, dead body of Arif was handed over to his relatives vide handing over memo Ex. PW5/C. The Doctors of LNJP Hospital handed over to him one sample seal and blood gauze which was sealed with the seal of MAMC KB­10. PW27 took them into police possession vide seizure memo Ex. PW20/A. PW27 stated in his cross­examination that he reached LNJP Hospital in between 1:30 am to 2:00 am. The injured was FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 44 of 66 present in LNJP Hospital and was under medical treatment. PW27 had seen the MLC of injured Arif. Ct. Krishan Gopal/ PW26 came to the spot at about 4:15 am/4:30 am after registration of the FIR.

32. PW28 Inspector Binod Kumar, in his examination in chief stated that on 13.12.2011, investigation of the present case was marked to him. He searched for the eyewitnesses of the present case but no one was traced. On 14.12.2011, PW28 met with HC Swaroop Singh of PCR who took the injured Arif to BJRM Hospital and inquired from him and recorded his statement. The traffic police official who made call at 100 number in the present case, could not meet as his duty hours were got over. Eyewitness Iliyas could not be examined as he had gone for his village. On 15.12.2011, eyewitness Iliyas came to PS Adarsh Nagar and PW28 interrogated him and along with him and accompanying staff, reached at the place of incidence i.e. Road No. 51, near Traffic Red Light, Malkhana, Azadpur, Delhi. Eyewitness Iliyas pointed the place of incidence. The spots of blood were found on the tiles which were affixed on the pavement. Crime Team officials were called at the spot and photographer of the Crime Team took the photographs of the spot and Crime Team Incharge inspected the spot and prepared crime report Ex. PW2/A and handed over the same to FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 45 of 66 PW28. PW28 recorded statements u/s 161 Cr.PC of the staff of Crime Team and supplementary statement of eyewitness Iliyas. PW28 prepared site plan of the spot on the instance of eyewitness Iliyas vide Ex. PW28/A. PW28 removed the blood stained tiles and earth stained tiles from the said pavement with the help of screw driver and prepared two separate pullandas. The same were sealed them with the seal of BKS in the presence of eyewitness Iliyas and Ct. Parshuram and took the same into police possession vide seizure memo already Ex. PW9/A. Seal after use was handed over to Ct. Parshuram. Thereafter, PW28 reached at the Traffic Malkhana near the spot where Traffic Ct. Sombir, who made call at 100 number, was found present on his duty and PW28 interrogated him and recorded his statement u/s 161 Cr.PC. On 16.12.2011, PW28 searched for the accused of the present case along with staff. On secret information, accused Veer Bahadur @ Budhiya was arrested at about 5:00 pm from his house i.e. B­24, Kewal Park, Delhi, vide arrest memo already Ex. PW24/A and personal search memo Ex. PW24/B. The information regarding the arrest was given to his employer Mahender.

33. PW28 further stated in his examination in chief that they brought accused Veer Bahadur @ Budhiya to the PS in muffled face FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 46 of 66 where he was interrogated and disclosure statement of accused was recorded vide Ex. PW24/C. In his disclosure statement, accused Veer Bahadur disclosed that he could get recovered the knife which was used in the offence in question and also pointed out the place of incidence. Thereafter, PW28 along with HC Naresh, Ct. Parshuram and accused Veer Bahadur left the PS and on the instance of accused Veer Bahadur, they reached at the place of incidence i.e. Road No. 51, near Traffic Red Light, Electric Poll No. 167, above the divider service road, near MCD Colony, Azadpur, Delhi. The pointing out memo of the spot was prepared vide already Ex. PW24/D. Accused Veer Bahadur by walking ahead took them to the North side Wall of MCD Colony, Azadpur, Delhi, and got recovered one blood stained knife from the bushes. PW28 prepared site plan of the place of recovery of the said knife vide Ex. PW28/B. PW28 prepared sketch of the said knife vide Ex. PW24/E and its measurements were done. The total length of knife was 28.7 cms, length of handle was 9.7 cms, length of blade was 19 cms and width of blade was 4.1 cms. PW28 kept the said knife in a piece of cloth and sealed the same with the seal of BKS. Seal after use was handed over to HC Naresh. Sealed parcel was taken into police possession vide seizure memo Ex. PW24/F. Accused as per his FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 47 of 66 disclosure statement took them to his house at B­24, Kewal Park, Azadpur, Delhi, for the recovery of purse and accused took to a room at first floor of the said house and got recovered one black coloured purse on which PINDEN GBNO was written with iron metal from the capry (half pent) which was hanging on the nail which was affixed on the back of the door of the room. The purse was containing photocopy of identity card of deceased Arif, some visiting cards of transport, Rs. 30/­ and some other documents related to transport and other documents of father of the deceased Arif were found. PW28 prepared a pullanda the sealed the same with the seal of BKS and it was taken into possession vide Ex. PW24/G. Accused Veer Bahadur also handed over to PW28 one green coloured capry and one black and white coloured swatter shirt from the said room and told that the said clothes were worn by him at the time of offence. PW28 prepared pullanda of said clothes and sealed the same with the seal of BKS and took them into police possession vide seizure memo Ex. PW24/H. On 17.12.2011, PW28 along with staff and accused Veer Bahadur left the PS for the search of Varun @ Juri but he could not be traced.

34. PW28 further stated that during PC remand of accused Veer Bahadur when they were returning to PS Adarsh Nagar and at FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 48 of 66 about 4:30­5:00 pm when they reached at the gate of MCD Colony, Road No. 51, Adarsh Nagar, Delhi, accused Veer Bahadur pointed towards one boy who was standing at the gate of MCD colony and told that he was Varun @ Juri. On the pointing out of accused Veer Bahadur, PW28 with the help of accompanied staff apprehended Varun @ Juri. PW28 inquired from him and came to know that he was under 18 years of age. Since the said Varun @ Juri was juvenile, PW28 called his father namely Jagmohan at the spot and also called Juvenile Welfare Officer SI Sunny from PS Adarsh Nagar at the spot. PW28 formally searched JCL Varun @ Juri and one Chinese cherry coloured mobile phone make Soly Elison (without any battery and sim card) was recovered from the right side pocket of his pent and the same was sealed with the seal of BKS and it was taken into police possession vide seizure memo already Mark X­1. The genuineness of photocopy of seizure memo Mark X­1 was not disputed by the Ld. Defence Counsel. Thereafter, Juvenile Welfare Officer SI Sunny prepared apprehension report already Mark X­Z, social background report Mark Y­Z, personal search memo already Mark X­3 of JCL Varun @ Juri. Genuineness of these documents was not disputed by the Ld. Defence Counsel. SI Sunny interrogated the said JCL Varun @ Juri in detailed and recorded his FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 49 of 66 version which Mark Y­Z1. In the said version, Varun @ Juri disclosed that the mobile recovered from his possession belongs to deceased Arif. Genuineness of these documents was not disputed by the Ld. Defence Counsel. PW28 stated that they got conducted the medical examination of JCL Varun @ Juri and produced him before the Members of JJB at his house at Kingsway Camp, Delhi and the Members JJB ordered him to keep in Sewa Kutir, Kingsway Camp, Delhi.

35. Thereafter, permission for judicial TIP of Varun @ Juri and accused Veer Bahadur was taken but accused Veer Bahadur refused for his TIP and JCL Varun @ Juri was identified by eyewitness Iliyas during the TIP. PW28 also got conducted the TIP of recovered mobile phone from Varun @ Juri and purse recovered on the instance of accused Veer Bahadur from the eyewitness Iliyas. The said mobile phone and purse were correctly identified by the eye witness Iliyas during TIP. PW28 also got prepared site plan of the spot through Draughtsman on his instance. PW28 collected the postmartem report of deceased Arif. Exhibits were sent to FSL Rohini, Delhi, for expert opinion. On 30.01.2012, eyewitness Iliyas identified accused Veer Bahadur in Rohini Court Complex, Delhi, when accused Veer Bahadur was being produced before the FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 50 of 66 concerned Court to take JC remand. The statement of eye witness Iliyas was recorded in this regard on 21.02.2012. PW28 collected the copy of traffic challan from ZO Alipur namely Shri Krishan, by which he had challaned the truck bearing registration no. HR­55F­0625 and the traffic challan was taken into police possession vide seizure memo already Ex. PW7/B. During the investigation, PW28 came to know that the above stated truck was the same truck on which deceased Arif was working as a conductor and eyewitness Iliyas was working as a driver/owner and on the date of incidence, they both came to Delhi from Pipli and the said truck was challaned and was impounded and was kept at Malkhana, Road No. 51, Azadpur, Delhi. Thereafter, PW28 recorded supplementary statements of the witnesses and filed challan against accused Veer Bahadur. PW28 also identified one cherry coloured mobile of make Soly Elison Ex. PW9/P­1; one black coloured purse and some documents including one card in the name of Rahimuddin, photocopy Electoral Identity Card of Rahimuddin, one builty, one receipt regarding weighing, one builty dated 13.11.2011, builty dated 10.11.2011, three currency notes of Rs. 10/­ each and some visiting cards Ex. PW9/P­2 (colly); one knife Ex. PW9/P­5; one capry/nekar and one swetter shirt Ex. PW24/A­1 (colly); one cemented tile Ex. FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 51 of 66 PW9/P­4; one earth control sample tile Ex. PW25/A; photographs of the spot Exs. PW1/B­1 to PW1/B­6.

36. PW28 stated in his cross­examination by the Ld. defence counsel that on 13.12.2011, the investigation of the present case was marked to him in the evening hours after the post­martem of the dead body of Arif and he recorded only supplementary statement of PW Tarif. On 13.12.2011 at the time when case file was handed over to him, he had discussed the facts of the present case with the previous IO SI Baljeet. Till 14.12.2011, they were not certain about the exact location of the spot and it was certain on 15.12.2011 in the noon hours when PW Iliyas pointed the spot of incident in question. PW28 further stated that he tried to contact PCR officials who took deceased to the hospital on 13.12.2011, but could not meet them due to their duty off. On 14.12.2011, he met with them and along with them reached at Road No. 51, Adarsh Nagar, Delhi, for the search of the actual spot, but they did not state anything about the actual spot as they took the deceased Arif from Traffic Malkhana, Road No. 51, Adarsh Nagar, Delhi. On 13.12.2011, it did not come to his knowledge that purse and mobile phone were robbed. PW28 again said that on 13.12.2011, he came to know that the mobile phone and purse were robbed in the present case as SI Baljeet told FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 52 of 66 about the same to him and he had mentioned this fact in the case diary. PW28 also tried to contact PW Mohd. Iliyas on 13.12.2011on his mobile phone and the receiver told that they will come to Delhi within 1­2 days. This fact has also been mentioned in his case diary. On 15.12.2011 after the noon hours, PW Iliyas met with him and he came alone. On 15.12.2011, PW28 did the investigation related to the present case upto 8:00 ­ 9:00 pm. On 15.12.2011, PW Iliyas pointed out the place of incidence and also the wall from where the accused persons jumped in the MCD colony and he inspected the area located on both the sides of the said walls, from where PW Iliyas pointed that the accused persons had entered the MCD colony. PW28 inquired about the present case from the residents of MCD colony near the said wall, but no clue was found. Nothing about specification of accused persons was told to him by PW Iliyas except that one of them looked like Nepali and his age and another was of less age. On 15.12.2011, PW Iliyas joined the investigation of the present case and thereafter, on 30.12.2011, he again joined the investigation at Rohini Courts Complex, Delhi. On 16.12.2011, PW28 received secret information at about 4:00 pm - 4:30 pm. In the morning hours, they left the PS for the search of accused persons of the present case. They left the PS on a private vehicle FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 53 of 66 on receipt of the secret information. Some ladies and accused Veer Bahadur met them at the house of Veer Bahadur. Arrest memo and personal search memo were prepared at the house of the accused Veer Bahadur. Thereafter, they along with the accused came back to PS Adarsh Nagar and after his detailed interrogation, they recorded the disclosure statement of the accused Veer Bahadur. The knife was lying at the distance of 15­20 feets away from the north boundary wall of MCD colony. The accused lifted the said knife and handed over the same to them. On 16.12.2011, they searched for his associate Varun @ Juri (juvenile) in MCD colony. PW28 tried to call the residents of the MCD colony at the time of recovery of said knife, but none agreed by telling their genuine reasons. PW28 denied that PW Mohd. Iliyas was not the eyewitness in the present case or that he has been planted. PW28 further denied that no secret information was received on 16.12.2011. PW28 also denied that all the documentation work was done while sitting in the PS and that the signatures of accused Veer Bahadur have been forcefully taken on the documents. PW28 further denied that no disclosure, pointing out and recovery were done at the instance of accused Veer Bahadur. PW28 also denied that photographs of accused Veer Bahadur were clicked at his FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 54 of 66 instance on 16.12.2011 in the PS. PW28 further denied that the above said purse and mobile belonged to Mohd. Iliyas and that the same were planted upon the accused.

37. The Ld. defence counsel argued that there are contradictions in the testimonies of PWs, therefore, testimonies of PWs cannot be relied upon. I have found that there are some contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. As far as independent public persons joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because independent public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 55 of 66 benefit can be given to the accused for non­joining of independent public witnesses. In this context, I am supported with the judgements reported in the case of State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC

194.

38. The Ld. counsel for the accused further argued that the police has not fairly investigated the case and the investigation is defective. Ld. APP for State argued that if there is a defective investigation, the accused cannot also take the benefit of it. It is relevant to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this regard, I would place reliance upon the Judgment reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 56 of 66 of investigating officer if investigation is designedly defective.

39. The Ld. defence counsel for the accused also argued that prosecution has failed to prove motive for the murder. But in the present case, the prosecution has proved motive for the offence of robbery and murder committed by the accused as discussed above. Even otherwise, the defence, to my view, cannot dig out any advantage from the fact that motive has not been proved. No doubt, the court generally tries to asses the motive behind any murder but most often only the perpetrator of crime alone knows as to what circumstances prompted him/ her to certain course of action. Motive is in the mind of accused and can seldom be fathomed with any degree of accuracy. Therefore, absence of motive cannot dislodge the entire prosecution story. In this context, I would place a reliance upon the judgement reported in the case of State of UP Vs. Babu Ram 2000 (II) AD 285, it was held that:

"Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the Prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 57 of 66 any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them due to the ban imposed by law. In this context, we would reiterate what this court has said about the value of motive evidence and the consequences of prosecution failing to prove it, in Nathuni Yadav Vs. State of Bihar, [1998 (9) SCC 238] and State of Himachal Pradesh Vs. Jeet Singh [1998 (4 SCC 370)].

Following passage can be quoted from the latter decision:

No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the Prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the Prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered."

40. It is evident from the testimonies of PWs as discussed above that PW9 Mohd. Iliyas is the eyewitness of the occurrence. PW9 categorically stated that two persons were snatching from Mohd. Arif and he saw in the light of electric pole (jabardast light as said by PW9) one person who appeared to be Nepali stabbed Arif with knife on the left side of his stomach and after stabbing both went away towards East side after crossing the wall and went inside FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 58 of 66 the colony. PW9 correctly identified the accused who had stabbed Arif by knife. Mohd. Arif was taken to BJRM Hospital. PW9 also accompanied them in the PCR. However, considering serious condition of Mohd. Arif, he was referred to LNJP Hospital. Doctor treated him at the said hospital and during treatment, Arif expired in the hospital. PW9 also identified the knife used by the accused at the time of stabbing Mohd. Arif. PW9 also identified mobile phone, purse, jacket, T­Shirt, one shirt and one baniyan which were blood stained clothes of the deceased Mohd. Arif. PW9 in his cross­ examination, also stated that the accused Veer Bahadur @ Budhiya along with his associate was grappling with Arif at the time of incident. Due to odd night hours, no public person was moving there. PW9 did not go near Arif to save him due to fear of knife which was in the hand of accused Veer Bahadur @ Budhiya. PW9 also accompanied Arif from BJRM hospital to LNJP hospital and remained there till the time Arif was alive. In this context, I would also place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 59 of 66 Crimes 175 (Del.), it was held that it is well­known principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted.

41. In the present case, the testimony of PW9 has not only inspired the confidence but he is also trustworthy. The clear and consistent stand of PW9 about the presence of the accused at the time of incident and his identification by PW9 creates no doubt in the testimony of PW9. In Gulshan Vs. State through Govt. of NCT of Delhi, 2010 (1) JCC 562, it was held that identification in a court is a substantive piece of evidence. The Ld. counsel for the accused cross­examined PW9 but nothing has come out from the cross­ examination of PW9 which could support the case of the accused.

42. PW10 Doctor Meena Kumari proved that Mohd. Arif FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 60 of 66 was brought with alleged history of assault with stab injury on left lower chest and further proved death summary in her handwriting and signatures. Cause of death was stab injury on the lower chest with volumeic shock with cardiac arrest. PW11/ PW14 Dr. R. S. Mishra also observed on examination the injuries on the body of Mohd. Arif i.e. incised wound 6 cm x 3 cm on left lower interior coastal area and small incised wound superficial on left side of cheek and proved MLC of Arif as Ex. PW14/A. PW22 Dr. Rattan also proved that as per the said postmortem report, death was due to haemorrhage shock consequent to stab injury to chest and injury No. 3 was sufficient to cause death in ordinary course of nature individually and collectively. PW22 also proved that after examination of the weapon of offence and going through the PM report, all the injuries were found to be possible by weapon (knife) submitted.

43. PW1 Constable proved the photographs taken by him of the spot from his official camera. PW2 SI inspected the spot on 15.12.2011 from 07.10 pm to 07.30 pm. PW3 Ld. MM proved that she conducted TIP of accused Veer Bahadur @ Budhiya but he refused to participate in the TIP. PW4 W/HC recorded the information of injured Arif who was admitted in the hospital vide DD FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 61 of 66 No. 10A. PW5 Mohd. Tahir identified dead body of his brother­in­ law Arif. PW6 SI prepared the scaled site plan on the basis of rough note. PW7 SI proved the challan and seizure memo of challan of the vehicle no. HR­55F­0625 which was impounded u/s 260 of MV Act. PW8 Ld. ARC who conducted TIP of the case property where the witness Iliyas identified the same. PW12 HC registered the FIR and also recorded kayami DD regarding registration of FIR. PW13 HC proved that they took Arif and Iliyas in their PCR van and got Arif admitted at BJRM Hospital. PW13 specifically stated that he had a talk with the injured and he told him that he was working as a Conductor on the truck and he was going to take meal and he further told him that near red light two boys robbed him of his purse, mobile and Rs. 3000/­ and stabbed him. PW13 in his cross­examination stated that injured (since deceased) was bleeding profusely and his clothes were blood stained. PW15 Ct. who was posted at traffic circle Model Town as constable also proved that on the day of incident at about 10.45 pm, owner of the truck Mohd. Iliyas along with his helper Arif came to him. Mohd. Arif was having a wound on the left side of his abdomen and he was bleeding from his wound. PW15 also stated in his cross­examination that Mohd. Arif was bleeding profusely and what to say of his shirt, even his pants and FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 62 of 66 left side sleeper (chappal) were wet with blood.

44. PW18 Mohd. Tarif proved that he received a call from Mohd. Iliyas who was his co­villagers and owner / driver of truck No. HR­55F­0625 and in the said truck his younger brother Arif was working as a Conductor. Mohd. Iliyas told PW18 that Arif was caught hold by two persons and they assaulted Arif with knife on his stomach and thereafter fled away from the spot after jumping the MCD wall. PW18 also identified dead body of his younger brother Mohd. Arif. PW18 also proved that he had purchased mobile phone from one truck driver at Alwar and he inserted his own SIM bearing No. 9992514341 and it was handed over to his younger brother Arif since deceased for its use. PW18 in his cross­examination also stated that PW9 Mohd. Iliyas informed him telephonically that his brother was stabbed with knife. PW24 HC proved that he along with Inspector Binod and Ct. Parshuram joined the investigation and at the instance of the secret informer, they arrested the accused Veer Bahadur @ Budhiya. The accused took them to the place of incident and got recovered the blood­stained knife (khanjar) and also the accused took them to his house and got recovered one black colour purse. The accused also handed over some clothes i.e. capri and sweater shirt which were worn by him at the time of incident. The FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 63 of 66 associate namely Varun @ Juri (juvenile) was also apprehended at the instance of accused Veer Bahadur @ Budhiya and one mobile phone make Soly Blison (without Sim and battery) was recovered. In his cross­examination, PW24 also stated that the accused Veer Bahadur @ Budhiya himself lifted the knife from the place of recovery and handed over the same to the IO. PW24 further stated that accused got recovered the purse from his house. PW25 Ct. stated in his cross­examination that the IO recorded statement of Mohd. Iliyas at the spot. The blood was lying on the patri (pavement). PW27 Retd. SI stated that he along with Ct. Krishan Gopal reached LNJP hospital and found Arif under treatment but he was not fit for statement. PW28 Inspector prepared the site plan. In his cross­examination, PW28 stated that PW9/ Mohd. Iliyas pointed out the place of incident and also the wall from where the accused jumped in the MCD colony. PW28 also stated that the accused Veer Bahadur @ Budhiya lifted the knife from the spot and handed over the same to them.

45. The court has the power to examine the accused u/s 313 Cr.P.C. In Raman Saikia Vs. State of Assam (1997) 2 Crimes 555 (Gau.), it was held that section 313 is an important section and salutary provision which should not be slurred over. In Pudhu Raja FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 64 of 66 & Anr. Vs. State, Rep. by Inspector of Police, 2012 [4] JCC 2751, it was held that it is obligatory on the part of the accused while being examined u/s 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (The Transport Commissioner, AP, Hyderabad & Anr. Vs. S. Sardar Ali & Ors, AIR 1983 SC 1225; State of Maharashtra Vs. Suresh, 2000 (1) JCC (SC) 93: (2000) 1 SCC 471; and Musheer Khan Vs. State of Madhya Pradesh, 2010 (3) JCC 1648: (2010) 2 SCC 748). In the present case, the accused, in his statement u/s 313 Cr.P.C., has merely denied all the incriminating evidence. Whereas, the Prosecution has satisfactorily proved the case of robbery, use of knife and murder by the accused Veer Bahadur @ Budhiya. However, section 411 IPC is not directed against the principal offender i.e. a thief, robber or misappropriater FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 65 of 66 but against the class of persons who trade in stolen articles and are receivers of stolen property. Therefore, principal offenders are outside the scope of this section.

46. In view of my aforesaid discussions, I am of the considered opinion that the prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold the accused Veer Bahadur @ Budhia guilty and convict him for the offence u/s 394/302/34 IPC and u/s 397 IPC. Copy of judgement be given to the convict free of cost.

(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW­03:ROHINI:DELHI.

ANNOUNCED IN THE OPEN COURT on 29­11­2014 FIR No. 334/11; State Vs. Veer Bahadur @ Budhiya Page 66 of 66