State vs Vikas @ Sunil And Another on 30 January, 2010

[Cites 19, Cited by 0]

Delhi District Court

State vs Vikas @ Sunil And Another on 30 January, 2010

FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                      1

                 IN THE COURT OF MS. POONAM CHAUDHARY
                          ASJ (CENTRAL01) : DELHI

FIR NO.        : 337/07
P.S.           : Nabi Karim
U/ss           : 302/34 IPC

STATE 

VERSUS 

1        Vikas @ Sunil
         S/o Babu Ram
         R/o H. No. 6461/1 Gali 
         Hanuman Mandir
         Nabi Karim, Delhi

2        Suresh @ Bona 
         S/o Amar Singh
         R/o H. No. 6461/1 Gali 
         Hanuman Mandir
         Nabi Karim, Delhi



         Arguments heard on               : 28.01.2010
         Judgments reserved for           : 30.01.2010
         Judgments announced on           : 30.01.2010


J U D G M E N T

1. The case of the prosecution in brief is that on 17.09.2007 at about 10.25 PM, at Raod Near shop no. 5632, Qutub Road, Delhi within the jurisdiction of PS Nabi Karim both accused in furtherance of their common intention committed murder of Richpal Singh son of Pritam Singh intentionally causing his death and thereby committed an FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 2 offence punishable under section 302/34IPC.

2. The prosecution examined 20 witnesses in support of its case.

3. PW 1 Ct. Ramesh deposed the he was posted in the crime team as a photographer on 18.09.2007 and he along with SI Ashok Kumar Incharge crime team reached the spot at Qutub Road and he took 7 photographs of the dead body lying in front of shop no. 5632 on the road from different angles. He also stated that negatives were Ex. PW1/1 to Ex. PW 1/7 and the positives were Ex. PW 1/8 to Ex. PW 1/14. In his cross examination he stated that on receiving a call he along with crime team reached the spot on 17.09.2007 at 10.00 PM.

4. PW 2 HC Layak Ram deposed that on 17.09.2007 he was working as duty officer at PS Nabi Karim from 4.00 PM to 12 midnight and he received a telephonic information to the effect that a person was lying unconscious near Hanuman Mandir and was bleeding. He recorded the DD entry no. 6/A which is Ex. PW 2/A and copy of the same was sent to ASI Ashwani through Ct. Amit Kumar.

5. PW 3 HC Mehar Singh deposed that in the intervening night of 17/18.09.2007 he was working as duty officer at PS Nabi Karim from 12 FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 3 midnight to 8.00 AM. He further stated that at 12.05 AM he received a rukka sent by ASI Ashwani through Ct. Amit on which he registered the FIR and copy of the same is Ex. PW 3/A. He also stated that he made endorsement on the rukka at mark X and sent copy of FIR through Ct. Amit to Inspector Joginder Singh.

6. In his cross examination he stated that Ct. Amit left after 20 minutes with copy of FIR and he had sent special report through special messenger to the area Magistrate and senior officials. He denied that FIR was ante time and also denied that entries in the DD register were manipulated and fabricated.

7. PW 4 Laxman Kumar Indoria deposed that on 17.09.2007 at about 8.00PM he had gone to Chowk Singhara to meet his sister and at about 10.00 PM he received a telephonic call from his house informing him that some guests had arrived.

8. He deposed that he was returning home from Chowk Singhara in his Santro Car at about 10.15 PM and when he reached near Qutub Road MCD Store, Nabi Karim he saw both the accused whom he correctly identified in the court, present across the road near the Transport offices/shops i.e. outside shop no. 5632. He further deposed that accused had caught hold of one person and were scuffling with FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 4 him and trying to snatch away(Hathapai and chheena jhapti) while that person was resisting. He further deposed that there was a blue coloured TATA 407, a cycle rickshaw parked and street light was falling on the said persons and the vehicles. He further deposed that the persons whom the accused had caught hold of and robbed was passenger on cycle rickshaw. He further deposed that rickshaw wala put down two bags of the said person passenger and ran away. He further deposed that while sitting in his car he told the accused not to trouble that man. He also stated that as there was a heavy traffic jam on the road at that time and it was not possible to him to park his car and get down. He further stated that accused Suresh @ Bona took out a knife and stabbed that person while the other accused Vikas @ Sunil had caught hold of that person from the back and thereafter both the accused ran away towards gali Haunuman Mandir with the said knife,. He also stated that he returned home and attended to his guests and thereafter went to see them off at railway station.

9. PW 4 further stated that when he returned to the spot from the railway station it was very late and found many police officers present at the spot and a dead body lying there. He further stated that he disclosed to the police what he had seen and police recorded his statement at about 1.30 AM. He further stated that police seized two FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 5 bags of that dead person from the spot which contained daily wearing apparels and other articles and the passport of the deceased. A ticket from Delhi to Abu Dhabi,. Rs. 156/ in cash were found on the search of the body, 4 currency notes of Rs. 1,000/ each were found in the purse apart from Rs. 156/ in denomination of Rs. 100/, Rs. 50/ and coin of Rs. 5 & Rs. 1. Besides there were 2 coins of Kuwait, one coin of USA. He testified that the seizure memo of black colour bag with the articles is Ex. PW 4/A and seizure memo of red colour bag is Ex. PW 4/B and the seizure memo of passport , visa , currency notes of Rs. 4,000/ is Ex. PW 4/C, seizure memo of jamatalashi of dead body ( Rs. 156/ in cash and foreign currency)is Ex. PW 4/D. 4 photographs were seized vide seizure memo Ex. PW 4/E and photographs are Ex. PW 4/F1 to Ex. PW 4/F4 which were correctly identified by the witness. He also stated that a Nokia mobile phone was also recovered from the search of the dead body. He further deposed that all the seizure memos bears his signatures. PW 4 stated that the the currency note of central bank of Iraq of Rs. 25,000/ in denomination and was not recovered in his presence. He identified Nokia mobile phone black colour Ex. P 1 , Temporary Pass IMCC Delhi main station in the name of Richpal Singh Ex. P 2 , one hundred rupee note, one fifty rupee note, one five rupee note, one coin of one rupee collectively Ex. P 3, two coins of Kuwait collectively Ex. P 4 and one coin of US Ex. P 5. One brown colour FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 6 leather purse containing 4 passport size photographs of deceased, one international Metro Civil Contractors, ICard in the name of Rishpal/Raspal deceased, 4 visiting card and 45 paper slip. The witness stated that this purse and the photographs were not recovered in his presence.

10. Two air bag one red and one black colour & green colour are Ex. P 6 were identified by the witness as belonging to deceased containing the wearing apparels of the deceased. He further stated that blood stained earth control was lifted and sealed with the seal of JS. The blood was also lifted from the dead body and all the exhibits were sealed with the seal of JS.

11. He further deposed that on 15.11.207 he was brought to the court of Sh. Alok Aggarwal where he saw both the accused present in court whom he correctly identified before the IO and told him that they had inflicted stab injuries on Richpal Singh.

12. He further stated that on 27.11.2007 on the direction of crime branch he reached the spot and crime team took the measurement of the spot and inspected the spot in his presence and prepared site plan at his instance. Clarified his statement made earlier stated that there FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 7 was no purse on the deceased. He also testified that he knew both the accused very well. In response to court question he stated that he know them for the last 2025 years. He also stated that both the accused have criminal background. He also testified that since he had deposed in this case he had been receiving life threatening attacks. He further stated that exhibits were lifted from the spot and were seized vide seizure memo Ex. PW 4/G, PW 4/H, PW 4/I and PW 4/J which bears his signatures.

13. In his cross examination he stated that he stated that he was 39/40 years old and was a free lance journalist. He further stated that on the date of incident he had gone to meet her sister and had crossed Singhara Chowk. He further stated that he had gone to meet her sister in a house behind Jaipur Golden Transport but number of the house which he did not remember. He further stated that his sister did not reside there but had only come on that day to that house. He also stated that he received a phone call on his mobile and he had no land line number at his house. He further stated that the spot was at a walking distance of 23 minutes from Singhara Chowk. He also stated that he reached the spot at about 10.15 PM and had told to the police that he had seen accused persons scuffling with the deceased and there was Hathapai and Chhena Jahpti. He was confronted with the FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 8 statement Ex. PW 4/DA wherein it was not so mentioned. He further stated that he told to the police in his statement that there was a blue colour TATA 407 and cycle rickshaw parked there, he was confronted with the statement Ex. PW 4/DA wherein it was not so recorded. He further stated that he had told the IO that accused were across the road near the transport office outside the shop, he was confronted with the statement Ex. PW 4/DA wherein it was not so recorded. He also stated that he told the police that the persons to whom accused were robbing was a passenger of cycle rickshaw but he was again confronted with the statement Ex.PW 4/DA wherein it was not so recorded. He also deposed that the road was double road and was about 60 feet vide and there was no divider in between and he was in the first lane in the traffic. He also stated that there was traffic jam but he could see across the road. He also stated that he told the IO that accused Vikas @ Sunil caught hold of that person from neck. The attention of the witness was drawn to the statement given in the court on 2.06.2008 that accused had caught hold of the person from the back to which he replied that he was no felling well when he had given that statement. He further stated that police recorded his statement four times. The attention of the witness is drawn to his supplementary statement dated 15.11.2007 Ex. PW 4/DB in which he stated that Vikas caught hold the person from the neck from behind and Bona had caught hold the person from the FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 9 front portion mark A to A. he testified that Ex. PW 4/DB and Ex. PW 4/DA means the same as a person moves in all directions in such instance. He further stated that entire incident took place in about 45 minutes.

14. He further stated that he had gone to railway station from his house via Qutub Road and he left around 11/11.15.PM from his house for the railway station and returned whom railway station at about 12.30/45 AM. He further stated that he did not make effort to call the police as he did not know that the person had been killed. He further stated that IO recorded his statement at around 1.30 AM but he did not know who prepared the sketches. He also stated that Inspector Devender Singh had met him. He further stated that he had seen the site plan Ex. PW 4/C and as per site plan dead body was found lying outside 5635 again said shop no. 5632, 5633, 5634 are adjacent to each other. He further stated that accused were in muffled face when he saw them in the court of Sh. Alok Aggarwal the then Ld. MM but he recognized their by their walk/gait. He also deposed that police booth is at a distance of 150200 feet from the spot. He also deposed that transport work of loading and unloading goes on throughout night. He also testified that he was not related to any of the accused. He denied that accused Vikar is son of his real elder uncle tau and also denied that FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 10 Bona was his brother in law sala. He further deposed that accused persons were living in the same gali in front of his house. He denied that cross case of FIR no. 378/07 u/s 341/323 IPC dated 4.11.07 with him and Madan Mati was pending. He denied that he along with Ct. Arvind had gone to the house of accused asked them to dispose of their house and give share to him.

15. PW 5 Dr. Bhim Singh stated that on 18.09.2007 he conducted the postmortem examination on the body of Richapl Singh brought by Inspector Joginder Singh. He stated that on examination external injury no. 1, incised stab wound 5.5 cm x 2 cm x cavity deep was found present over the left side of trunk in the anterior axillary lying at the level of 8 rib, horizontally placed inner angle was obtusp, outer angle acute, situated 17 cm below the left nipple and 13 cm above and outer to the umbilicus.

16. On internal examination in the neck region, there was presence of clotted and fluid blood in the trachea. Chest cavity, both the lungs were pale and chest wall shows 5.4 cm cut in the 8th rib. Abdomen, peritoneum, peritoneum cavity, full of clotted and fluid blood about one liter, omentum shows 4.4 cm cut through and through. Stomach, full of clotted and fluid blood with presence of rice particles and cut FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 11 present in the greater curvature measuring 4 cm. Liver was pale weighed about 1600 grams. Spleen was pale. Both the kidneys were pale. Abdomenial vessels shows cut in the left gastro appiplocic artery. Brain was pale. He further stated that cause of death was due to heamorrahagic shock consequent to injuries due to stab wound injury no. 1. He also stated that injury no. 1 was antemortem, fresh in duration and could be caused by single sharp edged weapon and was sufficient to cause death in ordinary course of nature. He proved the postmortem report Ex. PW 5/A. He further stated that he had signed six inquest papers. He further stated that blood of deceased in gauze piece, cloth of deceased, pair of leather shoes, black belt of deceased were sealed and handed over to the police.

17. PW 6 HC Mahadev Prasad stated that on 18.09.2007 he was on duty as MHC(M)at PS Nabi Karim and on that day Inspector Joginder Singh had deposited five sealed parcels containing exhibits duly sealed with the seal of JS, one sealed parcel containing personal articles of deceased and two bags. He further stated that he took the custody of the articles and made entry in register no. 19 which is Ex. PW 6/A.

18. He further stated that on 20.09.2007 Inspector Joginder Singh again deposited four seal parcels duly sealed with the seal of JS FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 12 containing case property and he took the custody of the articles and made entry in register no. 19 which is Ex. PW 6/B

19. He further stated that on 5.10.2007 inspector Joginder Singh again deposited 2 sealed parcels containing exhibits along with sample seal and he took the custody of the same and made entry in the register no. 19 which is Ex. PW 6/C.

20. He further stated that on 31.10.2007 nine sealed pullandas containing exhibits and one sample seal were sent to FSL Rohini through Ct. Harpreet Singh on the direction of the IO and endorsement of this effect was made at Ex. PW6/D. The copy of road certificate is Ex. PW 6/E. He also stated that so long as the sealed parcels and sample seal remained in his custody it was not tampered with. In his cross examination he stated that he was on duty 24 hours and SHO had himself come on all the dates to deposit the parcels in the Malkhana. He also stated that no written permission of SHO/IO is required to send the exhibits to FSL and IO/SHO hands over a duly signed forwarding letter to be handed over to FSL director. He denied that no samples were deposited in the malkhana by SHO and no parcels were sent to FSL and also denied that case property was tampered with.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                        13

21. PW 7 Veer Bahadur stated that on 17.09.2007 he was on duty as chowkidar at Qutub Road from 9.00 PM to 5.00 AM and at about 9.30 PM while on duty he went from Hanuman Mandir to Birla Mandir side when saw a person was lying in front of shop no. 5635 and no one else was present. He further stated that said person was lying unconscious and blood was oozing from the injuries as someone had stabbed him. He further stated that two bags were lying near the said person. He further stated that no vehicles were seen near the said person. He further stated that he had seen two persons running on on the road. The street light was not on. He also stated that he could not so the faces of the said persons and he had only seen them from back side. He did not identify the accused persons. He further stated that he went to PS Nabi Karim to inform the police. He also stated that police made inquiries from him and recorded his statement.

22. PW8 SI Ashok deposed about the intervening night of 1718 Sept., 07, he was posted as Incharge Crime Team Central District and on that date on receipt of information from the duty officer of PS Nabi Karim, he alongwith Photographer Ct. Ramesh and other team officials reached the shops i.e. 5632 Qutub Road, Nabi Karim. The Photographer took the photographs and inspected the site and prepared the report EX8/8.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                       14

23. PW 9 Wasim Raj deposed that on 19907 at 11.00 pm he alongwith IO and other Police officals reached the gate of Dargah Hazart Banke Billa, Nabi Karim where they met one person Suresh, who is in custody of Police. IO told him that Suresh had thrown the purse inside the Durgah from the wall and they had to search for the said purse and at the request of IO he had jointed the investigation. He further stated that they went inside the Dargah and at the instance of accused Suresh the purse was searched after procuring a torch, the purse was found near the wall of Dargah. The Purse was of brown colour, it contained I Card few photos and papers. He also stated that the purse and its contents were sealed in Pulanda with the sealed of JS and taken into the possession vide seizure memo 9/A which bears his signature. He correctly identified the purse P 7, I Card P8, documents P9. In his cross examination he stated that 2/3 police officials came at Dargah but he did not know their names and rank. He also stated a torch of the graveyard and he had gone to take the torch. He further stated that he had not seen the face of the accused. He accompanied with the police. He testified further that it took about one and half hour to search for the purse. He further stated the IO recorded his statement. He also deposed no other public person from the Dargah was joined in the investigation. He denied that no recovery was FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 15 effected in his presence.

24. PW10 Preetam Singh deposed that Richpal was his son and on 16907 his son Richpal had come to Delhi by bus as he has to go to Abudhabi. He further stated that on 17907 after arriving at Delhi his son made a telephone call to him informing him that the had reached Delhi. He further stated that his son again made a call to him on 17.9.07 at about 9/9.30 pm informing him that his flight was cancelled and he would go to Abudhabi by Flight on 18907 and would stay in Gurgaon in the night. He further deposed that at around 12.30 am in the night, Police made a telephone call to him informing that some accident had taken place with Richpal. He accordingly asked his relative residing in Delhi to go and enquire from Police at PS Nabi Karim. Thereafter he came to know about the murder of Richpal by stabbing. He further stated when his son Richpal left for Delhi he was carrying Rs. 7,000/, two bags some eatables and Dollars to the tune of Rs. 25000 and mobile phone.

25. At the request of Ld. Addl. PP cross examine of the witness was allowed as he was resiling from the previous statement. And in his cross examine by Addl. PP he stated that Police informed him that some incident had taken with his son. He further stated his son FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 16 Richpal was carrying a purse, Dollars of 25000 and other currency and he had seen the currency, when he had taken money from the purse of his son. He further stated that he told the Police that he could identify the purse of Richpal if shown to him. He also deposed that on 29907 he came to Tis Hazari Court, Delhi and identified the purse of Richpal out of the 10 purses before the Ld. MM. He further stated as and when he used to need money he used to take it from the said purse of his son Richpal. He further stated that when the accident occurred on 17.09.2007 his son was carrying purse. He correctly identified the purse P7 I. Card, P8 Photograph collectively P9 Visting Cards and paper slips collectively P10. He also identified his signature on the TIP proceedings.

26. In his cross examination he stated that police recorded his statement once when he came to take dead body of his son and thereafter on 29.10.07 for the purpose of identification of the purse in Delhi. He denied that the purse Ex. P7 identified by him before Ld. MM, were already shown to him by the police.

27. PW11 Jagdish Kumar proved the TIP proceedings of both the accused Ex.11/2 and Ex.11/3 which bears signature at point A and the certificates appended to the same.

28. PW12 Sh. Vidya Prakash, Ld. MM proves the TIP proceedings of FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 17 case property Ex.10/A.

29. PW13 ASI Aswani Kumar deposed that on the intervening night on 17/18.09.07 he was on emergency duty at PS Nabi Karim and at 10.25 P.M. Const. Amit Kumar gave him DD No.26A dated 17.09.09 regarding a person lying unconscious in the area of Qutub Road. He stated that after receipt of the said DD he alongwith Ct. Amit Kumar reached at Shop No. 5632, Qutub Road, Delhi. He further stated on the way he met one one Chowkidar, Vir Bahadur who told him that one person was lying unconscious at Qutub Road and blood was oozing from his body. He further stated that they met Insp. Joginder Singh on the way and thereafter they all alongwith a Chowkidar, Vir Bahadur reached the spot where one person aged about 2728 years old was found lying and one TATA 407 DL 1 LB 1925 was stationed near that person. The person was wearing white linedar shirt with Baniyan and white pant. He also stated that head of the person was towards east and blood was oozing from his nose & mouth and there was injury on his stomach at left side which seemed to be inflicted by some sharp weapon. He further stated that cloths were bloodstained and blood was also lying near the body and around the spot and he died on the spot. He further deposed that two bags of and red & black colour were found lying near the dead body. No eye witness was present there. He FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 18 further stated in the meantime the SHO PS Nabi Karim also reached the spot. He also deposed he prepared the Rukka Ex.PW13/A on DD No. 26A and got the FIR registered through the Ct. Amit Kumar by sending him to PS. He also testified further investigation was handed over to Inspector Joginder Singh and he joined further investigation alongwith I.O. Inspector Joginder Singh. He further stated that I.O. called the crime team. The crime team inspected the spot and got the spot photographed . Thereafter I.O. lifted the blood from the wound of the deceased, and the blood lying near the dead body and bloodstained earth in a different plastic jars. He further deposed in the meantime eye witness Laxman Kumar Indoria came and in his presence I.O. sealed Pullandas with the seal of JS and thereafter seized vide seizure memo Ex. 4/G, Ex. PW 4/H, Ex. PW 4/I and Ex. PW 4/J which bears his signature at point B. He further deposed that he conducted personal search of deceased and from his Baniyan Rs. 4000/ in the denomination of 1000/ each and passport in the name of Rechpal were recovered. He further stated that I.O. seized the same sealed and seized it vide seizure Memo Ex. 4/C bears his signature at point C. H further stated that from the shirt of deceased Rs.156 in the denomination of currency notes of Rs.100 and one currency note of Rs. 50 and one coin of five and one coin of one and 2 foreign currency coins was recovered. Mobile phone Nokia1600 also recovered from FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 19 the right pocket of pant which was sealed and seized vide seizure memo Ex.4/D which bears signature at point D. He also stated deposed that 2 begs of different colour one of black & red and another of black colour with articles of daily use were seized by the IO vide memo Ex. PW 4 /A and Ex. PW 4/B.

30. He also deposed that two bags of different colours, one black and another red were found lying near the dead body. The same be checked by the IO and from one 45 photographs were recovered. Both the bags were having the clothes of deceased and the daily use goods such as Colgate toothpaste, toothbrush etc. The photographs Ex. PW 4/F1 to Ex. PW 4/F4 were seized by the IO vide seizure memo 4/E. IO also seized the bag containing the clothes of deceased and the daily articles of deceased vide memo Ex. PW 4/A and Ex. PW 4/B.

31. He further stated that IO prepared the site plan at the instance of eye witness Laxman Indoria. He further deposed that IO recorded his statement at the direction of the IO. He further stated that he along with Ct. Amit Kumar took the dead body of deceased to mortuary of MAMC and body was preserved for 72 hours . He also deposed that he left Ct. Amit to guard the dead body at mortuary and came back to PS. FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 20

32. He further stated that on 19.09.2007 he had joined the investigation with IO and he left PS at 6.45 PM for the search of accused persons and at about 7.00 PM they reached Qutub Road where IO received secret information that the accused wanted in the present case were consuming smack near police picket, Hanuman mandir Qutub Road behind MCD store. He further stated that IO gave direction to beat officer HC Sadhu Ram to reach the abovesaid spot and about 7.45 PM they reached they reached the said spot and at the instance of secret informer they arrested both the accused. He correctly identified both the accused. He further stated that both the accused were apprehended and were interrogated and their disclosure statement was recorded which are Ex. PW 13/A and Ex. PW 13/B, thereafter both the accused were arrested vide arrest memo Ex. PW 13/C and Ex. PW 13/D and their personal search of accused persons was conducted vide memo Ex. PW 13/E and Ex. PW 13/F. He further testified that both the accused pointed out the place of occurrence and pointing out memo was prepared which is Ex.PW 13/G and Ex. PW 13/H which bears his signatures. He also testified that thereafter they came back to police booth left accused Suresh @ Bona in the custody of beat officer HC Sadhu Ram. Accused Vikas took them to his house no. 61 /A Gali Hanuman Mandir from where he got recovered one blood stained half pant/knicker from the Iron shelf of first floor room and FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 21 also got recovered foreign currency notes of Rs. 25,000/ from the almirah kept underneath the newspapers. IO seized the currency notes and half pent/knicker vide seizure memo Ex. PW 13/I and Ex. PW 13/J. He also stated that accused Vikas was thereafter brought back to the police booth near Qutub Road and was handed over in the custody of HC Sadhu Ram. Thereafter, accused Suresh took them to a gali on the backside of Banke Birla Masjid via Hanuman mandir and got recovered one chhura from underneath the brick near wooden khokha. He also stated that IO took the measurement of it and prepared its sketch Ex. PW 13/K which bears his signatures and seized it vide seizure memo Ex. PW 13/L. He also stated that accused Suresh also got recovered one purse of brown colour from the back side wall of Banke Birla Masjid. He also deposed that IO checked the purse which contained one diary , I card on which name of Rich pal Singh was written, and 4 visiting cards. IO prepared the pullanda of it and sealed it with the seal of JS and seized it vide seizure memo Ex.PW 9/A which bears his signatures. He further stated that bot the accused were sent for medical examination through HC Sadhuram. He also testified that case property was deposited in the malkhana. He correctly identified the case property P 1 purse, P 2 plastic container containing cotton wool swab lifted from the spot , P 3 plastic container containing blood stained soil, P 4 plastic container containing earth control lifted from FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 22 the spot, P 5 A purse, , 4 currency notes P 5B, pieces of papers having brown stains P 5C, P6 knife , P 7 knicker , pent with belt having brown stains P 8 A and shirt having brown stains P 8B, Baniyan having brown coloure P 8C , underwear having brown stains P8D, pair of socks of light brown white stripes, a pair of brown coloure leather shoes P 8F, gauze clothes piece P 9.

33. In his cross examination he stated that distance between the place of occurrence and police station is about 1 1 ½ KM and he immediately left for the spot after receiving the DD entry. He further stated that SHO reached within 1520 minutes and chowkidar Veer Bahadur met him near grave yard while he was on the way to the PS to give information regarding the incident. He further stated that he met Inspector Joginder Singh at Qutub Road he was his motor cycle and IO told them to reached the spot immediately. He further stated that chowkidar followed them to the spot. He further stated that he did not remember the colour of Tata 407 however the driver side of Tata 407 was towards north and backside was towards south. The head of deceased was towards east and legs towards west and face of deceased was lying upwards. He also stated that Tata 407 was standing 34 steps from the dead body of deceased. He further stated that luggage of dead body was lying near Tata 407. He also stated that he did not know FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 23 whether IO made any inquiry about the owner of Tata 407. He also stated that he prepared rukka when SHO reached the spot and it took about half and hour to prepared the rukka. He also stated that IO gave message to the crime team and crime team reached the spot within 20 25 minutes. He also stated that crime team had not arrived when he sent Ct. Amit Kumar with rukka to PS. He also stated that Ct. Amit returned from PS after half an hour of registration of the case. He also stated that crime team remained at the spot for half an hour. He further stated that crime team took the photographs at the instance of the IO. He also stated that IO lifted 4 exhibits from near dead body. He also stated that exhibits were lifted before the crime team reached the spot. He also stated that personal search deceased was being conducted when the crime team reached the spot. He also stated that eye witness came to the spot at about 1.00 AM and when exhibits were being lifted and remained at the spot till the dead body was sent to mortuary. He further deposed that there was a street light at the place of incident and street light was at about 510 steps from the spot. He further deposed that place of incident is thickly populated area. He also stated that few people were passing by from the spot. He also stated that IO requested few passersby to join the investigation but they refused. He also stated that all the documents prepared at the spot bear the signatures of eye witness Laxman Indoria. He denied that PW FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 24 Laxman Indoria had not come to the spot and denied that seizure memo of the documents were prepared in the PS. He also denied that signatures of Laxman Indoria were obtained in PS. He further denied that accused Vikas was falsely implicated at the instance of eye witness Laxman Indoria who is his cousin on account of enmity relating to property. He also denied that accused Suresh was falsely implicated at the instance of Laxman Indoria who is jija of accused on account of enmity of property. He also stated that he did not know whether the house of both the accused and witness Laxman Indoriya is opposite each other's house. He also stated that he did not know whether Laxman Indoriya knew both the accused since childhood. He also stated that he reached the spot at about 10.45 PM and remained there till 2.00 AM. He also stated that on 19.09.2007, I.O inspector Joginder Singh had asked HC Sadhu Ram to reach at Qutub Road near MCD store as I.O Inspector Joginder Singh had received a secret information. He testified that the IO told him about the same in the P.S. He further stated that I.O reached the Qutub Road near MCD store on his vehicle and he went on separate vehicle. He also stated that the distance between the P.S and Qutub Road near MCD store was about 1½ km and HC Sadhu Ram reached Qutub Road near MCD store after about 5 minutes of their reaching.

34. He also stated that the secret informer had met them at Trikona FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 25 Park, Qutub Road and they had taken secret informer on their motorcycle from the park. He also stated that both the accused were found present at the space between the wall of MCD Store and the railway wall and they were consuming drugs at that time. He also stated that after receiving the information, I.O had requested some public persons to join the investigation but they refused. He further stated that I.O had not asked any public person outside the P.S to join the proceedings of arrest of accused. He also stated that he did not remember whether there was any chowkidar to guard MCD store. He denied that accused were not arrested from the above said place and he was deposing falsely at the instance of the I.O. He also denied that accused Vikas was lifted from his house on the intervening night of the date of incident at about 2.00AM in the presence of eye witness Laxman Indoriya and constable Arvind and HC Sadhu Ram. He also denied that accused Suresh was lifted from his house on the next date of the incident i.e., 19.09.2007 at about 11.30PM. He also denied that the disclosure statements of accused persons were recorded in the P.S. He also denied that accused persons did not make any disclosure statement. He also denied that accused persons did not point out the place of occurrence. He also deposed that no one was present in the police booth when they brought accused in the police booth and it took about 2½ hours to conduct the proceedings regarding the FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 26 pointing out memo of place of occurrence, disclosure statement and arrest memo of accused persons.

35. He further deposed that they had taken accused Vikas to his house for recovery of the incriminating articles at about 8.30PM, at that time, he and I.O Inspector Joginder Singh and accused Vikas were present. He also stated that accused Vikas was taken from Police Booth to his house for recovery which is in the street, near the Hanuman Mandir on the backside. He also stated that house of accused was on the first floor and there was one room. He further stated that IO did not make any inquiry from neighbours regarding proof of house of accused. He denied that accused Vikas had not taken them to his house. He also stated that seizure memos of the articles recovered from the house of accused do not bear the signatures of independent witness however stated that I.O had asked the neighbours to join investigation but they refused. He denied that no recovery was effected from the house of accused and the recovery was planted upon Vikas from the the recovered articles of deceased lying in P.S. He also stated that family members of accused were present in the house and also stated that seizure memo Ex.PW13/I does not bear the signatures of the family members of accused Vikas. He also stated that he did not know whether I.O seized the newspaper underneath which the FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 27 currency notes were lying. He also stated that he did not remember make of almirah whether it was wooden or iron.

36. He denied that seizure memo Ex. PW 13/I is fabricated. He also deposed that they remained in the house of accused Vikas for about 1520 minutes. He also denied that no half pant (knicker) was got recovered by accused Vikas. He also denied that saccused was beaten in the P.S., due to which blood oozed out and his clothes became stained which were seized.

37. He further stated that accused Suresh led them to back side of Gali Banke Birla Masjid from where he got recovered knife which was kept in the middle of the Gali near Khokha. He also stated that Khokha was at a distance of about 100/150 yards from the entrance of the Gali and was lying closed. He also stated that there were houses and shops near the khokha. He also stated that the distance between the Khokha and the brick from underneath which the knife was got recovered was about 2/3 feet. He also state that the chhurra was not button actuated. He also stated that one shop was open at the time of recovery of knife. He also stated that seizure memo of the knife does not bear the signature of any independent witness but I.O had asked public persons to join the recovery however they refused. He also stated that did could FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 28 not say whether I.O recorded the same in his statement under Section 161 Cr.P.C. He denied that accused Suresh did not get recovered the chhurra and same was planted upon him hence the seizure memo does not bear the signature of any independent witness.

38. He also denied that purse Ex.P7 was not recovered at the instance of accused Suresh. He also stated that they had offered their search to the accused prior to the recovery and also stated that they had not offered their personal search in the presence of chowkidar Wasim Raju. He also stated that the place from where the accused got recovered the purse, was dark, however, there was sufficient light and they remained there for about half an hour. He also denied that purse was planted by them upon the accused. He denied that he was deposing deposing falsely at the instance of I.O and nothing was got recovered by the accused persons and all the recoveries were planted on them as well as all the documents were prepared by the I.O. in the PS.

39. PW 14 Ct. Harpreet Singh stated that on 30.10.2007 he took 9 exhibits and sample seal , FSL from and other relevant documents from the malkhana vide RC 120121 and deposited the same in the FSL Rohini and reciept of the same was given to MHC(M). He further stated FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 29 that during the period the exhibits remained in his possession it was not tamper with.

40. PW 15 Gurdeep Singh stated that on the intervening night of 17/18.09.2007 he came to know that his relative Richpal Singh who is son of brother in law of Preetam Singh had been murdered in Delhi. He also stated that he came to Delhi on 18.09.2007 and identified the dead body of Richpal Singh in mortuary of JPN hospital and his statement was recorded regarding identification which is Ex. PW 15/A and bears his signature at point A. He also stated that after postmortem, dead body of Richpal Singh was handed over to them vide Ex. PW 15/B and both the memos bear his signatures.

41. PW 16 Sh. Prakash Singh also stated that on the intervening night of 17/18.09.2007 he came to know about the murder of his younger brothers son namely Richpal Singh and he along with his relatives came to PS Nabi Karim on 18.09.2007 . He also stated that they went to mortuary of JPN hospital where they identified the dead body and his statement in this regard is Ex. PW 16/A. The dead body was handed over to them vide Ex. PW 15/B and both memos bear his signatures.

42. PW 17 Ct. Ashok Kumar stated that on 05.10.2007 he joined the FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 30 investigation of this case with Inspector Joginder Singh and on that day they reached at Maulana Azad Medical College where Lab Assistant handed over one cloth pullanda sealed with the seal of SKK department of Forensic Medicine containing clothes of deceased and one envelope sealed with the seal of SKK along with one sample seal. He also stated that I.O seized these vide seizure memo Ex.PW17/A which bears his signature at point "A".

43. PW 18 Inspector Devender Singh stated that on 27.11.07 he was working as Drauhgtsman Crime Branch Delhi and on that day at request of the IO he visited the place of occurrence i.e Qutub Road near shop no. 5634 , where he took rough notes and measurements on the pointing out of Laxman Kumar Indoria, on the basis of those rough measurements he prepared scaled site plan which is Ex. PW 4/DC and bears his signature at point X. He also stated that all the rough notes were destroyed after the completion of site plan.

44. In his cross examination he stated that Inspector Joginder Singh and 23 constables were present whose names he did not remember. He also stated that it took about 1 hour to take measurements and preparation of rough notes. He denied that the rough site plan was prepared at PS. FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 31

45. PW 19 Ct. Amit stated that on 17.09.2007 at about 10.25 PM he received DD no. 26/A from the duty officer and he took said DD to Purani Chowki and same was handed over to ASI Ashwani Kumar. He further stated that Inspector Joginder Singh met them on the way and they reached the spot together and found one person lying dead and blood lying near the dead body. He also stated that at about 11.50PM, ASI Ashwani Kumar prepared rukka and same was handed over to him for registration of the FIR. He also stated that he went to P.S Nabi Karim and after registration of the FIR, he came back at the spot and handed over copy of FIR and rukka to the I.O. He also stated that thereafter he and ASI Ashwani Kumat took the dead body to the Maulana Azaad Medical College, Mortuary and dead body was preserved for 72 hours and he remained present with the dead body till the postmortem. He also stated that after postmortem, dead body was handed over to the relatives of deceased.

46. In his cross examination he stated that two bags were lying at the spot and one Tata 407 was stationed near the dead body at a distance of 45 feet. He also stated that IO made inquiry from the public persons. He denied that he had not accompanied ASI Ashwani Kumar to the spot. He also denied that rukka was prepared at the PS and no FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 32 proceedings was conducted during his presence in the hospital. He further stated they had taken dead body to the mortuary and he remained in the mortuary till the postmortem was conducted and dead body was handed over to the relatives of the deceased. He denied in his cross examination that no postmortem was conducted in his presence.

47. PW 20 Inspector Joginder Singh stated that on 17.09.2007, information of the incident was received at 10:30 PM from the duty officer regarding that one injured person lying at Qutub Road. He accordingly went to Qutub Road, ASI Ashwani Kumar and Ct. Amit met him on the way and they all reached Qutub Road at shop no. 5632 where a man aged about 27/28 years old having stab injuries was lying on the road and two bags were lying near the dead body. He further stated that ASI Ashwani Kumar sent a rukka for registration of case through Ct. Amit and investigation was handed over to him by SHO PS Nabi Karim who was also present at the spot. He further stated that he called the crime team which investigated the scene of crime and took photographs. He also stated that SI Ashok Kumar incharge crime team handed over to him crime team report Ex. PW 8/A and he recorded the statement of SI Ashok Kumar and Ct. Ramesh. He further stated that he inspected the scene of crime and prepared site plan Ex. PW 20/A FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 33 which bears his signatures. He further deposed that he lifted the exhibits containing blood oozing from the wound of the deceased and blood lying near the dead body, earth control and blood stained earth which was seized vide seizure memos Ex. PW 4/G, H, I, J and bears his signatures. He also testified that he conducted the search of dead body and from the pocket of wearing baniyan, one passport in the name of Richpal, Viza, one electronic ticket from Delhi to Abudabi in the name of Richpal. 4,000/ cash in denomination of Rs. 1000/ each which was blood stained was recovered and from the pocket of wearing shirt, Rs. 156/ in denomination of currency of Rs. 100/, one currency of Rs. 50/, one coin of Rs. 5/ and one coin of Rs. 1/ were recovered. One NOKIA 1600 was recovered from the pant worn by deceased. He also stated that the bags lying near the dead body were checked and found containing the clothes and daily use articles and 4 photographs. He also stated that the passport, currency notes and visa were sealed and was seized vide seizure memo Ex. PW 4/L. Currency notes of Rs. 156/ and mobile phone was sealed and seized vide seizure memo Ex. PW 4/D and both the bags along with the articles were seized vide seizure memo Ex. PW 4/D and 4/A, four photographs were seized vide Ex. PW 4/E all the memos bears his signatures. He further stated that the site plan was prepared at the instance of eye witness Laxman Indoriyaa whose statement was also recorded. He further deposed that FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 34 Ct. Amit came back to the spot and handed over to him the FIR and Rukka. He also stated that he sent the dead body to the mortuary of Maulana Azad Medical College through ASI Ashwani Kumar and Ct. Amit. He also deposed that on the same day i.e. 18.09.07 he also went to the mortuary along with the relatives of the deceased and after identification of dead body he conducted the inquest proceedings U/s 174 Cr.P.C. and recorded the identification statement of relatives of deceased. He also deposed that after postmorten, dead body was handed over to the relatives of the deceased vide memo Ex. PW 15/B and all the said documents bears his signatures. He further deposed that thereafter he return to the spot and recorded the statement of Ct. Amit and made inquiries at the spot and thereafter return to PS and deposited the case property in the malkhana.

48. He further stated that on 19.09.07 he received a secret information that the assailants wanted in the present case were present at the backside of MCD, Railway Line. Accordingly, he along with ASI Ashwani went near the MCD Store where the secret informer met them and they apprehended both the accused at the instance of the secret informer. He correctly identified both the accused and further stated that he conducted the personal search of accused and after interrogation he arrested them vide arrest memos Ex. PW 13/C FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 35 and D and their personal search was conducted vide memos Ex. PW 13/E and F and all the memos bears his signatures.

49. He further stated that recorded the disclosures statements of both the accused which are Ex. PW 13/A and B and bears his signatures. He also testified that after arrest, both the accused were taken to the nearby the police booth at Qutub Road near Hanuman Mandir Gali. He further stated that Suresh @ Bona was left in the custody of HC Sadhu Ram whereas Vikas was taken to his residence at H. No. 6461, Gali Hanuman Mandir. He further deposed that accused Vikas took them to his house i.e 6461/ 1 Gali Hanuman Mandir and got recovered one blood stained half pent/knicker from the iron shelf of the first floor room and also got recovered foreign currency note i.e. Dinar of Rs. 25,000/ from the almirah underneath the newspaper. He also deposed that he prepared separate pullanda of knicker and currency notes and seized them vide seizure memo Ex. PW 13/I and Ex. PW 13/J. He further stated that he thereafter accused Vikas brought to the police booth near Qutub Road and handed over to HC Sadhu Ram.

50. He further stated that accused Suresh then led them to Hanuman Mandir gali near a khoka where some bricks were lying and FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 36 got recovered one chhura from underneath the bricks lying there. He also stated that chhura was blood stained. He further stated that he prepared the sketch of the same which is Ex. PW 13/L and it was seized vide seizure memo Ex. PW 13/L. He also stated that accused Suresh also led them to Banke Birla Masjid where one Wasim met them at the gate of masjid and they went inside the Masjid and at the instance of of accused Suresh @ Bona a brown colour purse was got recovered . He also stated that both the accused pointed out the place of occurrence i.e. 5632 near MCD store and pointing out memo in this regard was already Ex. PW 13/G and Ex. 13/H. He further stated that he moved an application for conducting the TIP of accused which is Ex. PW 20/A and bears his signature. He also deposed that accused refused to take participate in TIP. He further deposed that he collected the exhibits and postmortem report of deceased from mortuary of Maulana Azad Medical Collage. He further testified that he also moved an application for TIP proceedings of recovered purse which is Ex. PW20/B, which bears his signature. He also stated that on 29.10.07 father of deceased identifed the purse. He also testified that scaled site plan was prepared. At request of Ld. Addl. PP one leading question was put regarding recovery of foreign currency coins. He stated that two foreign currency coins i.e. one coin of Kuwait and another of USA were also recovered from the front pocket of shirt of the deceased. He correctly identified FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 37 Rs. 156/ in denomination of Rs. 100/, Rs. 50/, one coin of Rs. 5 and one coin of Rs. 1 which are Ex. P 10 collectively, two Kuwait coins Ex. P11 (collectively), one coin of USA Ex. P12 . He also correctly identifed the mobile phone Ex. P13 and card/pass Ex. P 14. he also correctly identified the purse which Ex. P 15 and Icard Ex. P 16, photograph of deceased Ex. P 17, visiting cards and torn papers Ex. P

18. He also correctly identified one currency note i.e Iraq's Deenar of 25,000/ P 19 which were recovered from the house of accused Vikas.

51. In his cross examination he stated that ASI Ashwani Kumar and Ct. Amit met him at the Tpoint of Qutum Road and they were on foot while he was on motorcycle. He also stated that he verbally told them to reach the spot. He also stated that he reached the spot first and found no one present near the deadbody and public persons passing by. He also stated that shops were closed. He also stated that within 24 minutes ASI Ashwani Kumar and Ct. Amit reached at the spot. He also stated that before checking the bags lying near the dead body Rukka was prepared by ASI Ashwani Kumar and it took about 45 minutes in preparing the said rukka. Rukka was sent at 11.50 PM for registration of FIR through Ct. Amit.

52. He further stated that he informed the crime team at about FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 38 10.4511.30 PM and at about 12 (midnight) Crime Team reached the spot. Crime Team consisted of three persons i.e. Crime Team In charge SI Ashok Kumar, one photographer and one finger print developer. He also stated that Crime Team inspected the place of crime at the instance of their Incharge. He further stated that they inspected the spot till 12.45 AM (night) and photographer took the photographs at his instance. He also stated that at about 1.00 AM Crime team left the spot. He also stated that before the crime team inspected the spot but did not check the goods lying there. He also stated that it took about 1 hours and 15 minutes in collecting the exhibits from the spot with the help of ASI Ashwani Kumar. He also stated that writing work was done by him and some documents were prepared by ASI Ashwani Kumar on his direction. He also stated that site plan does not bear the signature of eyewitness Laxman Indoria. He denied that the site plan Ex. PW20/A was not prepared at the instance of eyewitness Laxman Indoria. He also stated that dead body of deceased was removed to hospital at about 2.303.00 AM and ASI Ashwani Kumar, Ct. Amit, eyewitness Laxman Indoria and other beat staff remained at the spot till 2.30 AM. He denied that no one was present at the spot as stated above . He also stated that he went to mortuary at about 10 AM with the father of deceased and other relatives and reached there by 10.30/10.45 AM. He also stated that he FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 39 recorded statement of Ct. Amit on 18.09.07 at about 2 PM after postmortem of deceased and reached police station at about 10 PM on 18.09.07 and deposited the case property at PS Pahar Ganj.

53. He also stated that he received secret information on 19.09.07 at about 6.45 PM and at that time he was present at P.S. Nabi Karim and ASI Ashwani Kumar was also present at P.S. at that time. He further stated that he gave direction to ASI Ashwani Kumar to meet him at the corner of Tikona park, Qutub Road and he reached Tikona Park within 57 minutes while ASI Ashwani Kumar simultaneously reached on his motor cycle. He also stated that secret informer met them at Qutub Road near Tikona Park and from there ASI Ashwani Kumar took him on his motorcycle behind MCD Store Qutub Road where accused persons were present between the railway line and backside wall of MCD Store and were consuming drugs. He also stated that secret informer pointed out towards the accused persons from a distance about 50 meters thereafter accused persons were overpowered by both of them. Nothing was recovered from the place where accused were apprehended. He also stated that place of Qutub Road was a thickly populated area and there were so many shops there. He denied that no secret information was received by him that is why no public witness was joined at the time of apprehension of the accused persons.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                        40

He denied that that accused Vikas was lifted from his house at about 2 AM (night) on 17.09.07 and accused Suresh @ Bona was lifted from his house on 18.09.07 at about 11/11.30 PM.

54. He also stated that nothing was recovered from the personal search of the accused persons and he had given information regarding arrest of accused to their family members. He also stated that thereafter they returned to Police booth . He also stated that at the time of recording the disclosure statements of the accused persons ASI Ashwani Kumar was present however, HC. Sadhu Ram was present outside the booth as one of the accused was in his custody . He denied that accused persons did not give any disclosure statements that is why no public person was made as witness while recording the disclosure statement i.e. Ex. PW13/A and Ex. PW13/B.

55. He also denied that police booth was situated near the wall of MCD Store. He also stated that police booth was situated near the wall of masjid opposite Hanuman Mandir gali. He also stated that they had taken accused Vikas from police booth to Qutub Road for recovery at 10.00 PM and the distance between the place of recovery and police booth was about 3040 meters and they reached within 5 minutes at house no. 6461/1 Gali Hanuman Mandir, Qutum Road. He also stated FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 41 that he had not obtained any search warrant for the recovery from the house of accused Vikas. He also stated that he called the neighbours of the accused to join the investigation but none agreed. He also stated that he had not noted down the name and addresses of the persons who refuse to joined the investigation. He denied that he had not called the neighbours to join the investigation. He also stated that at the time of recovery he alongwith ASI Ashwani Kumar were only present alongwith accused Vikas. He also stated that they did not offer their personal search to the wife of accused before taking the search of the house of accused of Vikas. He denied that that foreign currency note of 25,000/ was not recovered from the almirah. He also denied that recovery of foreign currency note of 25,000/ was planted that is why no public person was joined in the investigation. He denied that seizure memo of the currency note was prepared in the P.S. He also denied that recovery of halfpant / knicker was not effected and same was also planted upon him. He also denied that seizure memo of half pant /knicker was prepared in the P.S. He stated that he had not prepared the site plan of place of recovery of currency notes, half pant/knicker. He also stated that returned to police booth with accused Vikas at about 10.50 PM. Thereafter they immediately left with accused Suresh @ Bona for the recovery at Hanuman Mandir Gali and distance between police booth and the wooden khoka was about 6070 FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 42 meter from where accused Suresh @ Bona got recovered one chhura from underneath the bricks. He also stated that no person was standing near the kokha bricks were lying near the kokha. He also stated that he had not got lifted the finger prints from the recovered Chhura. He denied that they did not go to the place of recovery and knife was planted upon the accused Suresh @ Bona. He denied that sketch of recovered Chhura Ex. PW13/K was prepared at the PS. He stated that he had not prepared site plan of recovery of Chhura. He further stated that it took about 3035 minutes at the place of recovery of Chhura. He further stated that thereafter they went to Masjid Banke Billa and reached there around 11.20 P.M where one Wasim Raja met them at the gate of Masjid. He also stated that the distance between the main gate of the Masjid and place of recovery of purse was about 25 meters. He stated that PW Wasim Raja had accompanied him till the place of recovery of purse. He also stated that he and ASI Ashwani Kumar had not offered their search to Wasim. He also stated that there was light at the place of recovery of purse. He denied that the purse was planted upon the accused and seizure memo Ex. PW 9/A was prepared in the PS . He also stated that they reached Police Booth with accused Suresh @ Bona at about 12.10 A.M. He further denied that place of incident as well as Police Booth are situated opposite to each other.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                     43

56. He further denied that both the accused persons had not pointed out the place of occurrence i.e Qutub Road. He also denied that all documents regarding pointing out memo, arrest of accused persons, disclosure statement of accused persons were prepared in the PS. He further stated that eye witness Laxman Indoria resided in the same gali where the accused person reside but he could not say whether the house of Laxman Indoria and accused Vikash are situated opposite to each other. He also stated that he did not know whether any cases of quarrel and theft were pending against the PW Laxman Indoria. He denied that accused were falsely implicated at the instance of Laxman Indoria. He also stated that he did not know whether Laxman Indoria was related to accused persons and denied that Laxman Indoria was the stock witness of the police. He denied that he was deposing falsely.

57. Thereafter statement of both the accused recorded under section 313 Cr.P.C. Accused Vikas @ Sunil denied all the allegation of prosecution witnesses. He further stated that case was registered against him at the instance of his step brother Laxman Indoria who was residing in front of his house and was informer of the police and wanted to grab his property. Accused Suersh @ Bona also denied all the allegation of prosecution witnesses. He further stated that he was FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 44 falsely implicated at the instance of PW Laxman Indoria who was his brother in law and was habitual complainant and informer of the police and wanted to grab the property of accused Vikas.

58. Accused examined 2 witnesses in support of their defence.

59. DW 1 Smt. Sunita stated that PW Laxman Indoria and accused Vikas @ Sunil were her cousins and their grandmother was Smt. Hardai. She also stated that relations between the family members of accused persons and Laxman Indoria were not cordial because Laxman Indoria was an informer ofthe police and extorted money by blackmailing people. She also stated that Laxman Indoria reside opposite to the house of accused Vikas @ Sunil and ground floor of house of accused Vikas @ Sunil already grabbed from father of accused Vikas by brother of Laxman Indoria. She also stated that Laxman Indoria demanded Rs. 5 Lakh from the father of accused Vikas @ Sunil and threatened him to implicate in the false case in case demand was not made.

60. In her cross examination she stated that they had not made any complaint to senior police official regarding the lifting of her brother as well as Jija and their falsely implication in the present case. She denied FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 45 that she was deposing falsely against Laxman Indoria due to strain relations between accused Vikas and Laxman Indoria. She further stated that no complaint was made to the police regarding the demand of Rs. 5 lakh by Laxman Indoria from the family member of accused Vikas.

61. DW 2 Aarti wife of accused Vikas @ Sunil stated that Laxman Indoria was her Jeth and step brother of her husband Vikas @ Sunil. The grandmother of Vikas and Laxman Indoria was Smt. Haridai. She also stated that Laxman Indoria resided opposite to their house and on 17.09.2007 at about 2:00 AM Ct. Arvind came to their house and took her husband. She also stated that on the next date at about 6.007.00 AM, Laxman Indoria reached PS with 23 press reporters and asked for Rs. 5,00,000/ or share in the property from her husband or else threatened to implicated him in the present case.

62. In her cross examination she stated that she was married to accused Vikas @ Sunil was Sunil @ Bona was her brother in law. She further stated that she came to know about the murder on 17.09.07 at about 2.00AM. She denied that on 17.09.2007 at about 10:15 PM her husband accused Vikas @ Sunil and Suresh @ Bona committed the murder of one Richpal after causing him stab injury and snatched FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 46 money from him. She also stated that they did not make any written complaint against Laxman Indoria for demand of Rs. 5 lakh or share in the property or any threat by Laxman Indoria to falsely implicate her husband Sunil in the present case. She also stated that Laxman Indoria and his brother has spent money in the cremation of her father in law and also admitted that relations between them were cordial. Thereafter she stated that relations were not cordial.

63. I have Ld. Addl.PP for state and Ld. Amicus curiae Ms. Sunita Gupta and carefully perused the evidence and material on reocrd.

64. Ld. Addl. PP stated that prosecution has succeeded in proving its case against both the accused beyond reasonable doubt. On the other hand Ld. Amicus curiae has contended that prosecution has failed to prove its case against the accused beyond reasonable doubt. It is contended on behalf of accused that they have been falsely implicated on ground of enmity with eye witness Laxman Indoria who is step brother of accused Vikas @ Sunil and brother in law of accused Suresh @ Bona. It is also submitted that motive for the commission of the crime has not been established. It is also submitted that there are material contradiction in the testimony of eye witnesses hence his testimony cannot be relied upon.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                   47

65. The case of prosecution hinges on the account of eye witness PW4 Laxman Indoria and as well as circumstantial evidence.

66. According to the prosecution story on the date of incident i.e. 17.09.2007 a telephonic information was received at PS Nabi Karim that a person was lying in unconscious condition behind Hanuman Mandir and was bleeding, DD entry 26/A was recorded in this regard by PW 2 HC Layak Ram which is Ex. 2/A. The information of incident was sent to PW 13 ASI Ashwani Kumar through Ct. Amit and ASI Ashwani and PW 19 Ct. Amit reached the spot shop no. 5632 Qutub Road. On the way they met PW 7 chowkidar Vir Bahadur who informed them about one person lying unconscious and PW 7 accompanied them to the spot and in the meantime Inspector Joginder Singh also met them and they all reached the spot where they found a person aged 2728 years found lying dead. ASI Ashwani Kumar thereafter prepared the rukka Ex. PW 13/A and sent Ct. Amit Kumar to PS for registration of FIR . Thereafter further investigation was handed over to Inspector Joginder Singh. ASI Ashwani Kumar stated that when he reached the spot no eye witness was present but after sometime eye witness Laxman Indoria came to the spot and in his presence IO lifted the exhibits containing blood oozing from the wounds of deceased, FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 48 blood stained soil, earth control, one passport of deceased having brown stain , currency notes having brown stains and clothes of deceased having brown stain. The exhibits were seized by the IO. Both site plan was prepared at the instance of eye witness PW 4 Laxman Indoria.

67. The dead body of deceased was sent for postmortem to the mortuary of Maulana Azad college through ASI Ashwani Kumar and Ct. Amit Kumar. PW 5 Dr. Bhim Singh deposed that he conducted the postmortem of the dead body of deceased and proved postmortem report Ex. PW 5/A. He stated that cause of death was due to heamorrahagic shock consequent to injuries due to stab wound. He also stated that injury no. 1 was antemortem, fresh in duration and could be caused by single sharp edged weapon and was sufficient to cause death in ordinary course of nature. PW 5 further stated that after the postmortem clothes of deceased, blood of deceased in gauze, pair of leather shoes and black belt of deceased were handed over to the police.

68. Thereafter on 19.09.2007, secret information was received by the IO that both the accused wanted in this case were present at the backside of MCD store Railway Line. Accordingly IO and ASI Ashwani FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 49 Kumar went to the MCD Store along with the secret informer and at the instance of the secret informer they apprehended both the accused. Both the accused were arrested vide arrest memo Ex. PW 13/C and Ex. PW 13/D and their personal search was conducted vide memo Ex. PW 13/E and EX. PW 13/F. Both the accused made disclosure statement Ex. PW 13/A and Ex. PW 13/B. IO proved the disclosure statement of accused.

69. Ld. Amicus curiae for accused alleged that accused persons have been falsely implicated by PW 4 Laxman Indoria who is a stock witness of the police. It was also alleged that PW 4 made improvements in his testimony, hence his version cannot be relied upon. Ld. amicus curiae for accused has also alleged that in view of the improvements in the testimony of eye witness his testimony cannot be relied upon.

70. It was contended by Ld. Amicus Curiae that PW 4 had not stated in his statement Ex. PW 4/DA that there was Hathapai and Cheena Jhapti and there was blue colour Tata 407 and cycle rickshaw parked there and that accused were present across the road near transport office outside the shop and that the person was a passenger of cycle rickshaw.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                              50

71. However I find that PW 4 had stated in his statement u/s 161Cr.P.C. Ex. PW 4/DA that there was Hathapai and Marpeet between the accused and deceased, in front of MCD Store gate and the person was resisting, one cycle rickshaw puller was standing near the place of occurrence and he put the luggage of the person on the road.

72. It was also stated by Ld. Amicus Curiae that PW 4 had deposed on 02.06.2008 that Vikas had caught hold of that person from back. It was also contended that PW 4 had stated that his statement was recorded about 4 times. It was also alleged on behalf of accused that in the supplementary statement Ex. PW 4/DB PW 4 stated that Vikas had caught hold of the person from behind the neck and Bona caught hold of the person from the front. PW 4 had given clarified his stand stating that his statements Ex. PW 4/DA and PW 4/DB meant the same thing as a person moves in all direction in such instances. It was further alleged by Ld. Amicus curiae tat the site plan does not bear the signature of PW 4 although IO stated it was prepared at his instance hence it casts a doubt regarding the presence of PW 4 at the spot. However, I find that the said contention is without any merits as PW 4 had deposed that on the direction of IO he had reached the spot and crime team had inspected the spot in his presence and prepared the sketches and he had identified all the points. Therefore only because FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 51 signature of PW 4 not obtained on rough site plan prepared by the IO. The presence of PW 4 at the spot cannot be doubted. PW 4 further stated that as per scaled site plan Ex. PW 4/DC the body was found lying outside shop no. 5632 to 5635. Hence PW 4 has supported the version of the IO that site plan was prepared at his instance and he was present at the spot on the date of incident at about 1.00 AM till the dead body was removed to the mortuary.

73. I find that there are no contradictions which are serious enough in the testimony of PW 4 to discredit the testimony of PW 4. The credibility of testimony PW 4 could not be shaken in his cross examination.

74. Ld. Amicus Curiae further submitted that DW 2 stated that PW 4 was enemical towards accused and he blackmailed them for extorting money and demanded Rs. 5 lakhs from the father of Vikas and the ground floor of house of accused Vikas was grabbed by the brother of PW 4. Ld. Addl. PP had argued that in her cross examination DW 2 stated that they had not fileld any complaint with the police against PW 4 regarding demand of Rs. 5 lakhs neither any document was filed to show that PW 4 had grabbed the property of accused Vikas.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                      52

75. Ld. Amicus Curiae further contended that PW 4 could have informed the police the moment he saw the incident of stabbing but he did not do so and proceeded to his house. This also shows PW 4 did not witness the incident and was a planted witness. On the other hand PW 4 had stated that he did not make effort to call the police as he did not know that the person had been killed. Nothing had been elucidated in the testimony of PW 4 to show that he had any special relation with the police to falsely implicate the accused and shield the real culprits PW 4 had denied that he was related to the accused.

76. Ld. Addl. PP argued that PW 4 was a natural and trustworthy witness.

77. Besides the eye witness account the prosecution has also relied upon circumstantial evidence to prove the guilt of accused.

78. The prosecution has relied upon the following circumstances to establish the charges against accused persons:

(a) Recovery of dead body of Richpal on 17.09.2007 at about 10.25 PM near shop no. 5632, Qutub Road, Nabi Karim with blood oozing from mouth, nose, stomach and blood lying near the spot.

FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 53

(b) Arrest of accused at the instance of secret information and their disclosure statement Ex. PW 13/A and PW 13/B. (C) Recovery of blood stained knicker/half pant at the instance and on the disclosure statement of accused Vikas worn by him while causing injuries to deceased and knicker getting blood stained in the incident.

(D) Recovery of Rs. 25,000/ foreign currency note at the instance and disclosure statement of accused Vikas. (E) Recovery of Chura and Purse at the instance and on the disclosure statement of accused Suresh @ Bona. (F) Possibility of use of knife in causing injury to victim due to which he died as per postmortem report Ex. PW 5/A and opinion by doctor regarding weapon of offence. (G) Time of death as per postmortem report Ex. PW 5/A corresponding to possible presence of accused on the spot of crime and commission of offence at about 10.15PM. Time FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 54 gap when deceased was last seen alive in the company of accused and his death with accused and his death very small.

(H ) Motive of crime Robbery.

79. It was incumbent upon the prosecution to establish that the circumstances relied upon were wholly consistent with the sole hypothesis of guilt of accused.

80. It has been held in 2009 III AD (S.C.) 389 Pawan & Ors. Vs. State of Uttaranchal & Ors. as follows:

When a case rests on circumstantial evidence, such evidence must satisfy oftquoted tests viz: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused; (3) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 55 complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

81. Thus In order to proved the guilt of accused beyond reasonable doubt it was incumbent upon the prosecution to establish that the chain of circumstantial evidence is complete.

82. I have carefully perused the material and evidence on record in order to ascertain whether chain of circumstances relied upon by the prosecution is complete.

83. PW 2 HC Layak Ram deposed that on 17.09.2007 he was working as duty officer at PS Nabi Karim and he received a telephonic information to the effect that a person was lying unconscious near Hanuman Mandir and blood was oozing and DD no. 26/A was recorded which is Ex. PW 2/A. A copy of the same was sent to PW 13 ASI Ashwani Kumar through Ct. Amit. The information of incident was sent to PW 13 ASI Ashwani Kumar through Ct. Amit and ASI Ashwani and PW 19 Ct. Amit reached the spot shop no. 5632 Qutub Road. On the way they met PW 7 chowkidar Vir Bahadur who FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 56 informed them about one person lying unconscious and PW 7 accompanied them to the spot and in the meantime Inspector Joginder Singh also met them and they all reached the spot where they found a person aged 2728 years found lying dead.

84. PWs 15 & 16 and relatives of deceased deposed that they had identified the dead body of deceased Richpal in the mortuary of RML hospital and stated that their statements regarding identification of the dead body were recorded which are Ex. PW 15/A and 16/A.

85. The photographs of the scene of crime were taken by the crime team called to the spot by PW 20 IO Inspector Joginder Singh. The photographs Ex. P 1/1 to 1/7 along with negatives and the postmortem report Ex. PW 5/A establish that deceased had been stabbed on his stomach and blood was oozing from the mouth, nose and the stab injuries inflicted near his stomach. Accordingly prosecution has established that the recovered body was of deceased Richpal Singh.

86. IO deposed that both accused were arrested at the instance of secret informer vide arrest memo Ex. PW 13/C and PW 13/D and their personal search was conducted vide memo Ex. PW 13/E and 13/F. IO proved the disclosure statements of both accused Ex. PW 13/A and FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 57 13/B. In pursuance of disclosure statement made by accused Vikas @ Sunil recovery of half pant/knicker Ex. P 7 having stains of brown blood and one foreign currency note of Rs. 25,000/ Ex. P 9 recovered at his instance from his house seized vide seizure memo Ex. PW 13/I and Ex. PW 13/J, while Chura Ex. P 6 and Purse Ex. P 15 were recovered at the instance of accused Suresh @ Bona, seized vide seizure memo Ex. PW 13/L and Ex. PW 9/A.

87. The contention of the Ld. Amicus Curiae for accused is that non joining of public witness at the time of arrest of accused casts a doubt on the case of prosecution. It was further alleged that non joining of public witness at the time of recovery also casts a doubt on the case of prosecution. It was also alleged that recovery was planted upon the accused persons from the recovered articles of deceased lying in the PS. It was also alleged that seizure memos are fabricated and were prepared in the PS.

88. Ld. Amicus Curiae also contended that half pant/nikkar was planted upon the accused Vikas after taking the same from the wife of accused Vikas. Ld. Amicus Curiae further argued that accused Vikas was beaten in PS due to which his clothes became blood stained. In this regard it is pertinent to mention that recovery of knicker Ex. P 7 FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 58 was effected on the day when accused Vikas was arrested and he was medically examined, as per his MLC there was no fresh injury on his body, hence this this contention of Ld. Amicus Curiae is rejected.

89. Ld. Amicus Curiae further alleged that recovery of knicker Ex. P 7 and currency notes Ex. P 9 from the house of accused Vikas was also shrouded with suspicion as IO and PW 13 had not offered their search to wife of accused Vikas before taking search of the house. Moreover the search warrant was not obtained for recovery from the house of accused Vikas. It was also alleged that the foreign currency notes of Rs. 25,000/ was planted upon the accused Vikas from the recovered articles lying at PS.

90. The next contention of Ld. Amicus curiae is that recovery of chhura was effected at the instance of accused Sursh @ Bona from a place which was accessible to the public. It was alleged that there were shops and houses near the khokha from where accused Suresh is stated to have got recovered the knife. It is also alleged that PW 13 stated that one shop was open at the time of recovery but despite the said fact no independent witness joined at the time of recovery. It is further stated by Ld. Amicus curiae that PW 13 had sated in his cross examination that the said fact was not mentioned in his statement u/s FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 59 161 Cr.P.C. . It is further submitted on behalf of accused that non joining of public witnesses at the time of recovery casts a doubt on the case of prosecution. It is further submitted by Ld. amicus curiae that knife was planted upon accused Suresh.

91. On the other hand Ld. Addl. PP stated that IO had asked public witnesses to join the investigation but they had refused.

92. It is further submitted on behalf of accused Suresh that recovery of purse is also shrouded with suspicion although independent witness PW 9 was joined at the recovery by the IO but as this witness stated in his cross examination that he had gone to fetch a torch from the watchman of the graveyard and it took about 2 minutes to bring the torch . It is submitted that while the independent witness PW 9 had gone to fetch the torch purse was planted upon accused Suresh @ Bona by IO and PW 13. It is also contended that IO had stated that he and PW 13 had not offered their search to PW 9. on the other hand Ld. Addl. PP stated that IO had deposed that Wasim Raja remained with them throughout the period till the recovery of purse was effected. It is also stated by Ld. Addl. PP that and the Ld. MM PW 12 proved the TIP proceeding of purse Ex. PW 10/A and the purse was correctly identified in the TIP proceeding by father of deceased PW 10.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                        60

93. The next contention of Ld. amicus curiae is that recoveries are not admissible in the evidence as the disclosure statement of accused are hit by section 25 of evidence act. However the said contention is rejected as section 27 of the Indian evidence act is an exception to section 25 of the evidence act and provides as under :

" How much of information received from accused may be proved. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

94. Moreover It has been held in AIR 1976 SUPREME COURT 483 Md. Inayathullah Vs. State of Maharashtra as follows:

Section 27 is in the nature of an exception to the preceding sections particularly Section 25 and 26. the first condition necessary for bringing this section into operation is the discovery of a fact , albeit a relevant fact , in consequence of the information received from a person accused of an offence. The second is that the FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 61 discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only" so much of the information" as related distinctly to the fact thereby discovered is admissible . The rest of the information has to be excluded . The word " distinctly" means "directly", "individually", " strictly ", "unmistakably".

95. In view of the above said judgment the portion of disclosure statement made by accused which leads to discovery of a fact is admissible in evidence.

96. The next contention of Ld. amicus curiae is that the recoveries were not admissible in the evidence as no independent witness was joined is also without any merits as it is submitted by Ld. Addl. PP that the deposition of police witness is reliable and trustworthy regarding the recoveries. It is further submitted by Ld. Addl. PP that police witnesses had sufficiently explained that public witnesses were not wiling to join investigation at the time of recovery of incriminating articles and have also that neighbour of accused Vikas were not willing to join recovery proceedings. Ld. Addl. PP further argued that it is very FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 62 difficult to join independent witness in cases of murder . It was also argued by Ld. Addl. PP that there was no infirmity in the evidence of recovery witnesses. Ld. Addl. PP also submitted that deposition of official witnesses in this regard is reliable and trustworthy and there is no bar to believe them and there was no mandatory requirements of joining public witnesses at the time of recovery if the deposition of official witnesses is reliable.

97. Regarding the nonjoining of public witness at the time of recovery in pursuance of the disclosure statement of accused, it has been held in :

141 (2007) DELHI LAW TIMES 145 (DB) DELHI HIGH COURT SHASHI SHEKHAR @ NEERAJ @ RAJU Appellant versus STATE - Respondent as follows :

(i) Indian Penal Code, 1860 -- Sections 302, 392, 392, 411 - Evidence Act, 1872 - Section 114 Illustration

(e) - RobberycumMurder - Appreciation of evidence

- Evidence of two recovery witnesses cannot be discarded being suspicions for reason that no public witness joined at time of recoveries - They had no axe to grind against appellant nor any motive attributed to them in crossexamination - Both witnesses are FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 63 Government servants and there is presumption under Section 114 Illustration (e) of Evidence Act regarding fact that all official acts by Government servants were regularly performed - Appellant not offered any explanation for being found in possession of recovered articles which police seized under Section 102, Cr.P.C.

Trial Court rightly concluded those articles were stolen articles - Test identification parade conducted by PW 16, M.M., who has proved test identification parade proceedings - ComplainantPW 1 identified various stolen articles - Recovery in facts of case particularly nature and quantity of jewellery recovered soon after incident of robbery and murder in complainant's house on 16/17.11.1995 - Appellant accused was not affluent enough to possess amount of jewellery items recovered from him or at his instance - Recovery of huge amount of stolen articles from appellantaccused makes appellantaccused not only robber but also murderer of two deceased - Trial Court rightly held robbery and murder were part of same transaction - Further finger prints expert who examined specimen finger prints of appellantaccused and chance prints lifted from place of occurrence and found one of those chance prints matching with specimen finger prints of appellant - Judgment of conviction passed by Trial Court upheld."

98. In view of the above said judgment there is a presumption under FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 64 section 114 illustration (e) of the evidence act regarding the fact that all judicial and official acts by government servants were regularly performed. No motive was attributed in the cross examination of PW 13 and IO to show they had any motive to falsely implicate them. Moreover no serious infirmity was pointed out in the testimony of recovery witnesses by accused. In view of the above judgment if accused wanted to rebut the presumption they could do so by bring on record relevant material either by their own evidence or doing cross examination of witnesses from which a doubt may enter the judicial mind regarding the genuineness of the acts of official witnesses performed while discharging their duties during investigation of crime. In the present case I do not find any infirmity in the deposition of PW 13 and IO regarding the recovery of incriminating articles at the instance of accused on their disclosure statements. Further the accused Vikas @ Sunil had not offered any explanation regarding the recovery of blood stained half pant/knicker, foreign currency note from his house. Accused Vikas merely denied that in his statement u/s 313 Cr.P.C. the recovery of foreign currency notes and knicker . The recoveries were made soon after the incident on 19.09.2007. the nature of recovery i.e foreign currency note soon after the incident clearly establish that robbery was the motive of crime as accused Vikas did not belong to affluent class of sourly to possess foreign currency note of FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 65 Rs. 25,000/ . The accused did not rebut the presumption u/s 114 E of the evidence act by bringing anything on record his defence which may create any doubt regarding the recoveries made by the police officer during the investigation of the case.

99. The recovery of the purse was also establish by the prosecution as PW 9 the independent witness deposed that the recovery of purse was effected at the instance of accused Suesh @ Bona in his presence and seizure memo Ex. PW 9/A bears his signature. Although in his cross examination he stated that he had not seen the face of accused, the Ld. MM also proves the TIP proceeding of purse Ex. PW 10/A and purse was correctly identified by the father of deceased PW 10 in the TIP proceedings.

100. I find that testimony of PW 13 and IO is reliable and suffers from no infirmity. Moreover the FSL results lends credence to the prosecution version as human blood was detected on half pant/knicker was recovered at the instance of accused Vikas worn by accused at the time of offence and blood spreading on the same.

101. The Ld. amicus curiae has contended on behalf of accused Suresh that the knife stated to be recovered at the instance of Suresh @ FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 66 Bona does not bears any blood stains neither finger prints were lifted from the same, hence knife/chhura was planted upon accused Suresh @ Bona and it is fabricated document. However to prove the use of knife as a weapon of offence for committing the murder of deceased, prosecution has relied upon the postmortem report Ex. PW 5/A and the opinion of PW 5 Dr. Bheem Singh on the same regarding the possible use of knife for causing injuries. PW 5 had stated that in his opinion cause of death was due to heamorrahagic shock consequent to injuries due to stab wound. He also stated that injury no. 1 was antemortem, fresh in duration and could be caused by single sharp edged weapon and was sufficient to cause death in ordinary course of nature. The testimony of PW 5 has gone unchallenged. Therefore prosecution has succeeded in proving beyond reasonable doubt that injuries were caused by single sharp edged weapon and was sufficient to cause death in ordinary course of nature.

102. It was also argued by Ld. Amicus curiae that PW 7 chowkidar had deposed that street light was not 'on' hence there was no light at the place of incident, however this contention is without any merit as street light is shown in the site plan Ex. PW 20/A. Moreover site plan Ex. PW 4/DC also reflected the place from where dead body of the deceased was recovered and also shows the place of electric poll of FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 67 sodium light and also shows the place of started beating and snatching with the victim who was sitting in the cycle rickshaw. It further shows the place from where eye witness PW4 had witnessed the incident of beating and snatching. It further shows the place from where articles of the deceased were seized by the IO vide seizure memo Ex. PW 4/G, PW 4/H, PW 4/I and PW 4/J. The eye witness stated that crime team inspected the spot in his presence and prepared the sketche. The testimony of PW 4 was not challenged in this regard.

103. Chemical examination report also lends credence to the prosecution version as the articles of the deceased i.e. Passport Ex. P 5/A, currency notes recovered in the personal search of deceased, pant with belt, shirt, underwear and his shoes were also found stained with human blood.

104. Both the accused had refused to join TIP proceeding held on 27.09.2007 soon after their arrest stating that they had been shown to the witness by the police and their photographs have been taken by the police. Whereas in their defence accused examined witnesses DW 2 who deposed that accused were falsely implicated by PW 4 who had visited the PS on the next day of incident when accused were in police custody and demanded Rs. 5 laks or share in the property or else FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 68 threatened to falsely implicate accused in the false case. In case the said defence raised by accused was true they would have stated so before Ld. MM. In this circumstances adverse influence is drawn against the accused of their refusal to join the TIP proceedings.

105. Regarding the motive of the crime prosecution has proved that robbery was the motive. The recovery of foreign currency of Rs. 25,000/ from the house of accused Vikas @ Sunil soon after the incident has been fully established by the prosecution. Accused Vikas did not belongs to affluent class of society to possess such huge amount of foreign currency.

106. Moreover, it has been held in JT 1999 (9) SC 513 as follows "that a false answers can be counted as providing "missing link" in completing chain."

107. Hence answers given by accused in their statement under section 313 Cr.P.C. in the present case being false case provide missing link in completing the chain.

 FIR No. : 337/07
P.S.         : Nabi Karim
State versus Vikas @ Sunil and another
                                                                                          69

108. Section 34 IPC lays down the principal of common intention/joint liability in doing of criminal act. Common intention implies acting in concert which is to be seen from the fact and circumstance of the given case. Prior consent or prior meeting of mind is essential ingredient of common intention as envisaged under section 34 of IPC.

109. It has been held in 1999 (008) SCC, 055SC as follows:

" The common intention implies acting in concert , existence of prearranged plan which is to be proved either from conduct or from circumstances of from any incriminating facts. It requires a prearranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the movement but there must be prearrangement or premeditated concert."

110. In view of the said judgment common intention can be formed at the spur of moment. The common intention of accused persons is to inferred from the testimony of eye witness PW 4 Laxman Indoria who deposed that accused Vikas @ Sunil caught hold of the victim from the FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 70 back and accused Suresh @ Bona stabbed him with the knife. Hence, prosecution has succeeded in proving that both the accused persons in furtherance of their common intention stabbed the deceased with the motive to commit robbery and murder.

111. Regarding the circumstances that deceased was last seen in the presence of accused, PW 4 stated that he had seen the accused scuffling with the deceased on the date of incident i.e. 17.09.2007 at about 10:15 PM. As per the postmortem report the time of death of deceased was 10:25 PM. This circumstance establishes that deceased was seen last alive in the company of accused just prior to his murder and the time gap between the deceased being seen last alive in the company of accused and his death is very small. This circumstance also establishes conclusively that the accused were the author of the crime.

112. In this regard it has been held in 2009 III AD (S.C.) 610 Raju Vs. The State, By Inspector of Police Indian Penal Code, 1890 - Sect. 302 and 341 Part I

- Held, PW7's evidence is clear and cogent - his presence at the spot has been established - He used FIR No. : 337/07 P.S. : Nabi Karim State versus Vikas @ Sunil and another 71 to have business transactions with the deceased - He stated about the present appellant holding a handle of soil cutter - Though the deceased and the present appellant were engaged in exchange of hot words, that could not have given an impression to PW7 that accused would take the life of the deceased - Therefore, the fact that he left the place on being told by the deceased to do so cannot be a ground to disbelieve his evidence - Time gap when the deceased was last seen alive in the company of the accused and when his dead body was seen is not very large.

113. For the forgoing reasons, I am of the view that the prosecution has succeeded in proving its case beyond reasonable doubt from the account of eye witness, other evidence and the proved circumstances which complete the chain cumulatively. Hence there is no escape from the conclusion that within all human probabilities the crime was committed by the accused and none else. Both the accused are accordingly held guilty for the offence U/s 302/34 IPC. Accused to be heard on point of sentence on 03.02.2010.

Announced in the open Court (POONAM CHAUDHARY) On this day of 30th January 2010 ASJ (Central01) : DELHI

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Delhi District Court

State vs Vikas @ Sunil And Another on 30 January, 2010