Delhi District Court
State vs Nirmal Kumar//Fir No.914/04 on 30 September, 2010
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THE COURT OF SHRI SANJAY KUMAR,
ADDITIONAL SESSIONS JUDGE - I,
DISTRICT NORTH WEST, ROOM NO. 308,
ROHINI COURTS, DELHI
SC No. 73/2008
FIR No. 332/2005
PS : SHALIMAR BAGH
U/s. 302 IPC
STATE
VERSUS
VIRENDER SINGH
S/O. SUKH DEV SINGH
R/O. 61-A, WEST SANT NAGAR
KAMAL VIHAR, KAMALPUR
BURARI, DELHI.
Date of Institution : 12.09.2005.
Date of receipt of case in this court : 25.11.2008.
Arguments heard On : 27.09.2010.
Order Announced On : 30.09.2010.
SHRI P.K. VERMA, APP FOR THE STATE.
SHRI C. L. GUPTA COUNSEL FOR THE ACCUSED.
STATE VS NIRMAL KUMAR//FIR NO.914/04
PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.
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JUDGMENT
1. The factual matrix of the case is that on 11.04.05 on receiving DD No. 2 ASI Sultan Singh went to Saroj Hospital and collected MLC of injured Sandeep. Doctor declared him unfit for statement and result on nature of injuries was also remained open. This DD entry was kept alive. On 22.04.05 DD no. 27 regarding the death of injured Sandeep was received by SI Mohar Singh who along with Ct. Raj Kumar went to Saroj Hospital where one Avdesh Kumar Singh, father of injured Sandeep met him. SI Mohar Singh recorded his statement.
2. In the statement, Avdesh Kumar Singh alleged that his deceased son was having an affair with one girl living in LP 39E, Pitampura, New Delhi. On 10.04.05 his son was seen with girl Kanchan in a park at around 6.00 / 6.30 pm. Accused Virender Singh, who is maternal uncle of girl Kanchan, saw them and on 10.04.05 he called deceased Sandeep in the night at around 8.30 p.m. The friends and STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :3: room mates of deceased Sandeep inquired when Sandeep did not return up to 10.00 pm. Then they went to the house of girl Kanchan and found that at the third floor accused and deceased were talking in a loud voice on the affair of deceased with Kanchan. Accused started beating the deceased and threw him from the third floor. Deceased Sandeep was admitted by his friends at Saroj Hospital.
3. Avdesh Kumar Singh further alleged that deceased Sandeep was having a mobile sim car which is in the possession of accused. The police registered FIR u/s 304 IPC on 22.04.05. SI Mohar Singh carried out inquest proceedings and post mortem on the body of deceased was conducted on 23.04.05. After post mortem dead body was handed over to Avdesh Kumar Singh and one Suman Kumar, cousin of deceased. After the postmortem SI Mohar Singh seized the sealed pullanda handed over by doctor. SI Mohar Singh prepared the site plan at the instance of eye witness Kumud Kumar and inquired about accused Virender. SI Mohar Singh also visited the place of crime but no blood STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :4: stains were found at the spot. The offence was thereafter converted from U/s 304 IPC to 302 IPC and further investigation was handed over to Insp. Hari Darshan Dahiya on 23.04.05. Insp. Hari Darshan Dahiya on 23.04.05 arrested accused Virender Singh and recorded his disclosure statement. In pursuance to his disclosure statement accused got recorded one sim card on which IDEA Chit Chat 16 K and 899910401080315128028 was written on the other side of the sim. The same was seized in a match box and sealed. Thereafter it was deposited in the malkhana. On 02.05.05 Insp. Hari Darshan Dahiya recorded statement of Mala Jain. On 23.05.05 the investigation was handed over to Insp. A. S. Dhaka of DIO (NW).
4. Insp. A. S.Dhaka during investigation met Dr. L. C. Gupta who conducted the postmortem on the body of deceased and took him to the spot of crime and conducted inspection. Insp. A. S. Dhaka also examined Kanchan and seized one Hindi language written register of Kanchan and obtained specimen handwriting and one love letter. All these STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :5: were seized by him. On 19.06.05 Avdesh Kr. Singh also handed over a love letter which was written by Kanchan and one photograph of Kanchan and deceased to Investigation Officer Insp. A. S. Dhaka. The same were seized by Insp. A. S. Dhaka. The seized register and admitted handwriting was sent to FSL Hyderabad for analysis. Investigation Officer Insp A. S. Dhaka also got photographs of the spot of crime from his own camera. During investigation scaled site plan was got prepared from draftsman. The final opinion from the doctor was collected after taking the opinion. The print out of mobile number of deceased no. 9891650005 was analyzed. On analysis it was found that deceased Sandeep received a phone call from landline number 27327605 which was installed at the house of Kanchan. After completion of investigation, charge sheet was filed for trial of offence u/s 302 IPC.
5. Ld. MM after compliance of section 207 CrPC committed the case to the court of Sessions.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :6:
6. My Ld. Predecessor framed the charge for trial of offence u/s 302 IPC vide order dt. 03.07.06 and accused pleaded not guilty and claimed trial.
7. Prosecution in support of the present case examined in total 30 witnesses.
8. As per statement of Ld. APP for the State Sh. P.K. Verma, prosecution evidence was closed vide order dt. 23.09.10.
9. Statement of accused u/s 313 CrPC recorded and the accused pleaded innocence in this case. Accused wished not to examine witness in his defence.
10. PW1 HC Vijay Kumar has deposed that on 22.04.05 while being posted as Duty officer at PS Shalimar Bagh at about 7.15 pm received a tehrir sent by SI Mohar Singh through Ct. Raj Kumar for registration of FIR. This witness has proved the FIR recorded by him copy of which is Ex. PW1/A. After registration of FIR, PW1 made endorsement in rukka vide Ex. PW1/B. STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :7:
11. PW2 Kumud Kumar, is eye witness and deposed that on 10.04.05 he was residing at H. No. LP 25 F, Pitampura, Delhi with his friends Raj Kumar, Sandeep (deceased), Pankan and Raj Kumar and on that day at about 10.30 pm when he came back to his room after taking dinner, Raj Kumar came and told him that Sandeep, who had gone to the building opposite their house had not come back. When he went towards that building he saw a crowd under the balcony of third floor of that building. When they went near they saw that Sandeep (deceased) was lying on the floor under the balcony of 3rd floor and was alive. Gold chain and mobile, which was without sim card and was in broken condition, were lying near him. He has further deposed that he along with Raj Kumar brought the TSR immediately and took Sandeep to Muni Mayaram Hospital and on the opinion of doctor they brought Sandeep to Saroj Hospital, Rohini. Sandeep was unable to speak at that time and they immediately called parents of Sandeep. PW2 has further deposed that Raj Kumar told him that Sandeep was having an affair with a girl named Kanchan who was resident of the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :8: same building where they saw Sandeep lying in pool of blood and that maternal uncle of Kanchan, i.e. the accused in this case had called Sandeep to there.
12. This witness was declared hostile by the Ld. APP and was cross examined by him but nothing favourable to prosecution could be extracted from his evidence. He stated in cross examination that he did not recollect if Sandeep and Kanchan used to exchange signals (isharebaazi) from their balconies to each other or that deceased had ever told him about his affair with Kanchan. He further volunteered to add that parents of Sandeep (deceased) had mounted pressure on him to make statement against accused as they had lost their son and so he had told the police whatever the parents of Sandeep desired. PW2 has admitted that he had told the police as per the desire of parents of deceased that accused, who is the maternal uncle of Kanchan, had seen deceased and Kanchan talking to each other in a park on 10.04.05 and had slapped Kanchan in front of Sandeep and due to this reason Sandeep felt guilty and that as per wishes of parents STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :9: of Sandeep he told the police that Sandeep had told him that he was going to Kanchan's house as he received call from her house and he was going there and that he went to her house. He further stated in cross examination by Ld. APP for state that PW2 gave several calls to Sandeep when he did not return till 10.00 pm. PW2 further added that as per wishes of parents of Sandeep (deceased) he told the police that he saw deceased and uncle of Kanchan talking to each other in a loud voice and Sandeep (deceased) was saying the he wanted to marry Kanchan and on this accused became angry and threw Sandeep from the third floor and ran away. He denied the suggestion of Ld. APP that he deposed falsely under there the pressure of parents of deceased or that under the pressure or threats from the side of accused or that he has been won over by accused or that he had full knowledge of the incident and so he told everything to the police on his own. He further denied the suggestion of Ld. APP that site plan was prepared at his instance or that complaint Ex PW 2/A was not given by him at the instance and as per wishes of father of Sandeep.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :10:
13. In his cross examination by counsel for accused, PW2 has stated that TSR took 15-20 minutes to reach Muni Maya Ram hospital from the spot and initial treatment was given to Sandeep in Muni Maya Ram hospital. He has further deposed that doctor at Saroj Hospital and Muni Maya Ram Hospital enquired about Sandeep. This witness was confronted with his statement Ex. PW2/DA where he had told the police about broken mobile and gold chain. He has further stated in cross examination that he narrated the incident to the police on the day of incident. He has further stated that he was joined in the investigation on 22.04.05 by the police. He denied the suggestion of the defence counsel that he had introduced first time in the court about the fact of broken chain and broken mobile.
14. PW3 Suman Kumar has stated that on 23.04.05 he had identified the dead body of his cousin brother Sandeep at BJRM hospital and after post mortem body of Sandeep was handed over to Avdesh Kumar, father of deceased.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :11:
15. PW4 Smt. Mala Jain, another star witness of the prosecution while deposing in this case she has stated that she does not know anything about this case. She has further stated that on the day of incident she went off to sleep at 10.00 pm on the day of incident as she was suffering from back pain and also from blood pressure. She has then stated that she never made any statement to the police or met her. This witness was cross examined by Ld. APP after declaring her hostile but nothing could be extracted from her evidence also. She denied the suggestion of Ld. APP that police met her on 02.05.05 and recorded her statement or that on 10.04.05 at about 10.00 pm she her sound of dhum as something had fallen down or that when she went out she saw deceased Sandeep lying injured on the floor or that after that she saw accused running with the halmet or that she has deposed falsely due to pressure of accused.
16. PW5 Shivender has deposed on 10.04.05 when he was present at his house, he received a call from PW2 Kumud and PW6 Raj Kumar that Sandeep had fallen from the roof and was admitted in Muni Maya Ram Hospital. On STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :12: hearing this he went to the hospital and was told that doctor had advised that Sandeep should be taken to a bigger hospitals and thereafter Sandeep was taken to Saroj Hospital.
17. PW6 Raj Kumar, another eye witness of prosecution has stated that on the day of incident he was living with deceased Sandeep, Kumud Kumar and others and Sandeep was having love affair with one Kanchan, who was residing in front of their house. He has further deposed that when he returned after taking dinner on 10.04.05 he saw Sandeep lying on the ground in front of house of Kanchan and on seeing him he called his friend Kumud Kumar and they removed Sandeep to Muni Maya Ram Hospital and from there he was taken to Saroj Hospital. He has further stated that after the death of Sandeep he had learnt that accused has been arrested in this case.
18. This witness too was declared hostile by Ld. APP and was cross examined at length but nothing could be extracted out from his cross examination by Ld. APP for the state. In his cross examination by Ld. APP for state, PW6 has STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :13: stated it as correct that on 10.04.05 at about 6.00/6.30 pm deceased Sandeep and Kanchan were talking in a park and some one rebuked Kanchan and took her but he has denied that he knew who that person was or what was that persons relation with Kanchan. After seeing the accused in court, PW6 has stated that he cannot say with certainty if he was the same person who took Kanchan along with him on 10.04.05 as he had seen the incident from a distance of about 300 yards and could not see him properly. PW6 has denied the suggestion of Ld. APP that he had told the police that uncle of Kanchan (Mama) had rebuked Kanchan and took her along with him or that at 8.30 pm deceased Sandeep had told him that he had received a call from Kanchan's house and so he would be going to her house. PW6 however, admitted it as correct that Sandeep did not return till 10.00 pm and on repeated calls from PW6, deceased Sandeep did not respond and later on his calls could not reach him.
19. PW6 Raj Kumar has then again denied the suggestion of Ld. APP that he along with Kumud Kr. went towards the house of Kanchan and saw maternal uncle STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :14: (mama) of Kanchan having hot words with Sandeep (deceased) or that Sandeep was saying he cannot live without Kanchan and he would marry her or that on hearing this maternal uncle of Kanchan uttered that he would finish Sandeep or that he had thrown Sandeep from the third floor on he ground floor or that he had seen mama of Kanchan running from there later on. PW6 has further denied the suggestion of Ld. APP that he is deliberately not disclosing the true facts under the pressure of accused or that he had joined hands with accused. PW6 Raj Kumar has admitted the complaint Ex. PW6/A made by him to SHO Shalimar Bagh on 22.04.05. He has further stated that complaint Ex. PW6/A was got written from him by the parents of deceased Sandeep and under their pressure.
20. During cross examination by counsel for accused PW6 has stated that parents of Sandeep arrived after 2/3 days of the incident from Jharkhand and remained in Delhi till Sandeep expired. He has further admitted it as correct that complaint Ex. PW6/A dt. 22.04.05 was written by him under the pressure of parents of deceased Sandeep after Sandeep STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :15: had died. In cross examination he has further stated that injured Sandeep was bleed from near his ear after falling on the ground. He has denied the suggestion of counsel for accused that deceased Sandeep was lifted by him and Kumud Kumar from main Pitam Pura Road in injured condition.
21. PW7 Sonu Rathore, another material witness of prosecution has stated that on 10.04.05 at 6.00 pm he was playing with his friends and Sandeep was also playing with them. He has then deposed that he went to his house after playing and on the next day he came to know that Sandeep was lying on the main road in Pitam Pura in injured condition. This witness too was declared hostile by Ld. APP for the state and was cross examined after getting permission from the court. In his cross examination by Ld. APP for the state, PW7 has denied the suggestion that he had told the police in his statement Ex. PW7/A recorded u/s 161 CrPC that he along with Sandeep went to Phulwari Park where one girl named Kanchan met them or that Sandeep (deceased) and Kanchan STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :16: started talking to each other or that in the meanwhile maternal uncle of Kanchan came there and she left with him or that at about 8.15 pm he saw Sandeep climbing on the stairs of Kanchan. He was accordingly confronted with his statement Ex. PW7/A.
22. PW8 Balwant Singh, while appearing as prosecution witness, has deposed that he knew accused Virender who is his brother-in-law (saala). He has further deposed that deceased Sandeep was not know to him or that he was residing in their locality or that deceased Sandeep was having any king of relations with his daughter Kanchan. This witness was also declared hostile by Ld. APP for state and during his cross examination by Ld. APP for State, he denied the suggestion that police made any enquire from him and he made any statement to the police or that he had told the police that Sandeep Kumar was living in H. No. LP- 25F, with his friends or that accused was living with him in the same house ever since he came to Delhi. He has further stated in cross examination by Ld. APP that he was not STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :17: present in his house on 10.04.05 and so he cannot say if on that day accused had brought his daughter Kanchan home while scolding her. He has denied the suggestion of Ld. APP for state that on the day of incident deceased Sandeep had come to his house or that deceased told him that he was in love with Kanchan and wanted to marry her. PW8 was confronted with his statement Ex. PW8/A made by him u/s 161 CrPC. He has further denied the suggestion of Ld. APP that he has deposed falsely in order to save the accused being his close relative. In his cross examination by counsel for accused, PW8 had produced the driving licence and voter I. Card of accused to show that accused was residing at 61-A, West Sant Nagar, Kamal Vihar and not with him.
23. PW9 Smt. Roshni has deposed that accused is his real brother. She has deposed that accused did not visit his house on 10.04.05. She has then stated that she did not know any Sandeep or any such boy had not visited her house on 10.04.05. She has then stated that neither police made any enquiry from her nor she made any statement to the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :18: police. After declaring this witness hostile, Ld. APP for state cross examined her also but nothing favourable to prosecution could be extracted from her cross examination. PW9 denied the suggestion of Ld. APP for state that on 10.04.05 accused had visited her house or told her that Kanchan was talking to one Sandeep in the park or that her husband and accused had scolded her daughter Kanchan on this issue or that in the meanwhile Sandeep (deceased) also came to her house and accused had scolded him too. PW8 was confronted with her statement Mark PW9/A on this aspect. She has denied the suggestion of the Ld. APP that since she has been worn over by accused being her brother, she has deposed falsely.
24. Prosecution in support of its case has also examined Kanchan as PW10. She has stated that accused is known to her as he is her maternal uncle. She has denied that deceased Sandeep was known to her or that she had any talk with Sandeep on 10.04.05. She has also stated that police did not record her statement. This witness was also STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :19: declared hostile by Ld. APP for state and after getting permission from the court cross examined this witness also.
25. In cross examination by Ld. APP for the state, PW10 Kanchan has denied his suggestion that she made any statement to police on 03.06.05 Ex. PW10/A or that she has been won over by the accused as he is her maternal uncle (mama) and due to this reason she has deposed falsely in the court.
26. An application u/s 311 CrPC was moved by Ld. APP for the state for further examination of PW10 Kanchan. The same was allowed and PW10 Kanchan was re-examined on 23.09.10. On that date PW10 stated after seeing photograph Ex PW16/A1 that she is seen in the photograph but she cannot tell as to who is the boy with her in photograph. She further stated that she cannot say if boy in the photograph is Sandeep. She has further denied that PW10 did not wrote any letter Ex. PW16/B to deceased Sandeep. She has admitted it as correct that Ex. PW16/B was written by him STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :20: and that in the year 2005 her landline number was 27327605. PW10 Kanchan has denied the suggestion of Ld. APP for state that she has deliberately not told the mobile number of her mama and deceased Sandeep or that she had written Ex. PW16/B to Sandeep or that she was having love affair with Sandeep or that her mama i.e. the accused was at her house on 11.04.05 or that flat no. LP-25F, is situated in front of flat no. LP-39E, Pitampura. She has further denied the suggestion of Ld. APP for state that on 10.04.05 at about 7.00 pm she along with deceased Sandeep were roaming in a park or that accused saw them and then took her forcibly to her house or that accused telephoned Sandeep (deceased) and called him to her house or that during altercation, accused gave beatings to Sandeep and pushed him from the third floor of our house and then ran away from there or that she has deposed falsely to save the accused who is her maternal uncle.
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27. During cross examination by counsel for accused PW10 has stated that she was forced to write letter Ex. PW16/B and Ex. PX2 by the Investigation Officer in DIU cell on 03.06.05. She has further stated that photograph Ex. PW16/A1 seems to have been manufactured later on as she did not got herself photographed with deceased Sandeep.
28. PW11 SI Manohar Lal, draftsman has deposed that on 15.06.05 he was called by Insp. DIU NW in his office and from there he went to spot at LP Block, Opp. House No. 39, Pitam Pura and on the pointing out of Insp. Attar Singh he took measurements and on the basis of same scaled map Ex. PW11/A was prepared by him on 16.06.05. He has further stated that after preparation of scaled map, rough notes were destroyed.
29. PW12 Ct. Ram Kishan, has deposed that on 22.04.05 he was working as DD write at PP Pitam Pura and on receipt of information he recorded DD no. 27 Ex. PW12/A. He has further deposed that he handed over the copy of DD entry to SI Mohar Singh.
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30. PW13 Ct. Meghpal, in his evidence has stated that he joined the investigation on 23.04.05. Dead body of deceased Sandeep was handed over to its rightful claimants in the presence of this witness and their statements were also recorded by the Investigation Officer.
31. Prosecution also examined PW14 Dr. L. C. Gupta, who conducted postmortem on the body of the deceased Sandeep and proved postmortem report Ex. PW14/A prepared by him as well as by Dr. Anil Shandilaya. This witness has deposed that deceased remained hospitalized till his death. He has further deposed that deceased remained conscious and capable to respond to verbal command between 19.04.05 to 22.04.05 but no attempt has been made by the Investigation Officer to record statement of deceased about the incident in question. PW14 has further deposed that from the record it appears that a deliberate attempt was made in this case to give face of road traffic accident and no FIR was choked out after getting the MLC of deceased and same was choked out u/s 304 IPC after STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :23: 11 days of incident i.e. on 22.04.05, only after on receipt of information of death of the deceased. Dr. Gupta, PW14 has deposed that cause of death in this case was coma resulting from extensive cranio cerebral damage (head injury) which was caused by other party by forceful infliction of heavy blunt and broad object.
32. PW15 Pawan Singh, is the nodal officer of Idea Cellular Ltd., and he has proved record of mobile phone no. 9891650005 from 01.02.05 to 10.04.05 and the same is Ex. PW15/A.
33. PW16 Avdesh Kumar Singh, who is the father of deceased Sandeep, has deposed that on 19.06.05 he joined the investigation of this case and handed over one photograph of deceased with Kanchan and a letter addressed to Sandeep written by Kanchan. Investigation Officer seized the same vide memo Ex. PW16/A. PW16 has further stated that he identified dead body of deceased Sandeep vide Ex. PW16/C. STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :24:
34. During cross examination by counsel for accused, PW16 has admitted it as correct that Ex. PW 16/B does not bear any date as to when it was written and the paper of Ex. PW16/B seems to have been taken out from a register. He denied the suggestion of counsel for accused that during investigation police got recorded the letter Ex. PW16/B from Kanchan or that photograph Ex. PW16/A was manipulated or that he pressurized PW2 Kumud and PW6 Raj Kumar to make statement to implicate the accused false in this case.
35. This witness was recalled for further examination after application u/s 311 CrPC moved by state was allowed by the court. He further stated in examination in chief that at the time of incident he was working at Bokaro Steel Plant and was there only. He had denied the suggestion of counsel for accused that PW2 Kumud and PW6 Raj Kumar had not told him anything.
36. PW17 Ct. Jag Mahender has deposed that on 11.04.05 he was posted as DD writer at PP Pitam Pura and on receiving message he registered DD no. 2 Ex. PW 17/A on the said date and copy of this DD was given to ASI Sultan Singh STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :25: who went to the spot with Ct. Rajender. This witness has further deposed that he again received information about admission of a boy Sandeep in Saroj Hospital on 11.04.05 and recorded DD entry no. 3 Ex. PW 17/B and handed over the same to Ct. Vikas who took the same to ASI Sultan Singh.
37. PW18 Ct. Veer Pal while deposing has stated that on 11.04.05 when he was on duty in PCR, Police HQ, he received a call at 1.36 am from Dr. Anand of Saroj Hospital regarding admission of one boy Sandeep in injured condition and on receipt of this information he filled up the PCR form copy of which is Ex. PW 18/A.
38. PW19 Dr. Surya Kant, has proved the MLC Ex. PW19/A of injured Sandeep, prepared by Dr. Anand. PW19 has further proved the death summary prepared by Dr. Chandrika at Saroj Hospital. He has further proved certificate of death Ex. PW19/A-2 of deceased Sandeep. PW20 WHC Nirmala, has deposed that on 03.06.05 when she was posted as HC in DIU, NW District one girl named Kanchan came to DIU office and handed over a register to Investigation Officer of the case containing 196 pages along STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :26: with one letter consisting of three pages. The same were seized by Investigation Officer vide memo Ex. PW20/A.
39. In cross examination by counsel for accused, PW20 has denied the suggestion that Investigation Officer had manufactured / prepared the register and letter and at the instance of Investigation Officer she had signed the seizure memo.
40. PW21 Ct. Prakash Joshi, has deposed that on 19.06.05 Avdesh Kumar Singh handed over a photograph of his son Sandeep (deceased) and one girl Kanchan and one original love letter to the Investigation Officer which were seized vide memo Ex. PW16/A. The said photograph was Ex. PW16/A-1 and original letter is Ex. PW16/B. During cross examination PW 21 has denied the suggestion of counsel for accused that original letter and the specimen letter were got manufactured by the Investigation Officer or that no letter or register was seized by Investigation Officer or that Investigation Officer got prepared the photograph also and she had signed the seizure memo at the instance of Investigation Officer.
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41. Ct. Harish has deposed as PW22 in this case and has deposed that he had sent the information about this case on the net after receiving call at the PCR.
42. PW23 Insp. Deen Dayal Kalshan, has deposed that on 23.04.05 when he was posted as SI at PS Shalimar Bagh, he joined the investigation of this case. On that day itself accused was arrested vide memo Ex. PW23/A and he was interrogated at PP Pitam Pura. Disclosure statement of accused Ex PW 23/C was also recorded on same day. He has further deposed that accused took the police party to 39E, LP Block, 3rd Floor, Pitam Pura, Delhi and got recovered a SIM of IDEA which was sealed vide memo Ex. PW23/D and thereafter accused was brought to PS Shalimar Bagh and lodged in lock up and case property was deposited in Malkhana. During cross examination by counsel for accused, PW23 has deposed that disclosure statement of accused was recorded by HC Surender on the dictation SHO. He denied the suggestion of counsel for accused that no disclosure statement was made by accused or that the accused led the police party to recover the IDEA sim card.
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43. PW24 ASI Sultan Singh, has deposed that on 11.04.05 he was posted at PP Pitampura of PS Shalimar Bagh and was on emergency duty from 8 pm to 8 am. He has proved DD No. 2 Ex. PW17/A and DD No. 3 Ex. PW 17/B. He has further deposed that at Saroj Hospital, MLC of injured was collected and as injured was unfit for making statement, DD No. 2 & 3 were kept pending.
44. PW25 SI Mohar Singh deposed that on 22.04.05 he was posted as Incharge of PP Pitampura of PS Shalimar Bagh and on that day on receipt of DD No. 27 about the death of injured Sandeep, Ex. PW 12/A he reached hospital along with Ct. Raj Kumar. He has further deposed that he collected the MLC and death summary of deceased Sandeep from the hospital. As per statement of this witness, father of deceased was also present there and he recorded statement of father of deceased which is Ex. PW25/A. PW25 has further deposed that he prepared rukka Ex. PW25/B and handed over the same to Ct. Raj Kumar for getting the FIR registered. Thereafter he went to place of occurrence along with father STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :29: of deceased, PW2 Kumud Kumar and PW3 Raj Kumar and prepared the site plan Ex. PW 25/C at the instance of PW2. Subsequently Ct. Raj Kumar reached the spot and handed over copy of FIR and original rukka to him and he directed Ct. Raj Kumar to reach Mortuary, BJRM hospital and thereafter he himself went to PS and recorded statements of Ct. Jag Mahender and Ct. Ram Kishan and also briefed the SHO about the entire facts.
45. PW25 SI Mohar Singh has further deposed that on 23.04.05 he along with Ct. Meghpal he went to mortuary BJRM hospital and prepared request for autopsy vide Ex. PW25/D. After postmortem dead body was handed over to its claimants vide memo Ex. PW3/B. This witness has further deposed that after postmortem the doctor handed over three sealed parcels with the sample seal and the same were seized vide memo Ex. PW 13/A and PW13/B. Thereafter on 23.04.05 the investigation of this case was handed over to SHO as per his direction.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :30:
46. In his cross examination by counsel for accused. PW 25 has stated that no blood stains were available at the spot and no blood stained earth or any other material from the earth were lifted. PW5 has further stated in cross examination by counsel for accused that nothing is mentioned on the site plan that it was prepared at the pointing out of PW2 Kumud Kumar. He has denied the suggestion of counsel for accused during the process of conducting of post mortem, photographs were taken, which were given to him by the doctors or that he did not conduct the investigation fairly and properly or that case was got registered under the pressure of the father of deceased and statement of PW2 Kumud Kumar and PW6 Raj Kumar were also recorded under pressure of father of deceased.
47. PW26 Ct. Raj Kumar has deposed that on 22.04.05 when he was posted at PP Pitam Pura of PS Shalimar Bagh, he along with SI Mohar Singh removed the dead body of deceased Sandeep from Saroj Hospital to BJRM hospital for postmortem.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :31:
48. PW27 ACP Hari Darshan deposed that on 23.04.05 he was posted as SHO PS Shalimar Bagh and on that day investigation of this case was handed over to him by SI Mohar Singh. He has deposed that on 23.04.05 he reached the place of occurrence, inspected the same and apprehended and interrogated the accused. PW27 has further deposed that he recorded disclosure statement of accused and accused got recovered one IDEA Chit-Chat 16 k sim card belonging to deceased from the house of his sister which was kept in a note book. The same was taken into possession vide memo Ex. PW23/D. Statement of witnesses was recorded by him and accused was taken into the lock up after his medical examination. PW27 has further deposed that on 17.05.05 the investigation of this case was transferred to DIU and file was sent to DIU.
49. During cross examination by counsel for accused, PW27 has stated during investigation he did not collect any documentary evidence in respect of ownership of the sim card as he had mentioned it in case diary for collecting the same by DIU. He has further stated in cross examination that STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :32: he sent a request to the company for suppling the call details containing the IMEI number of the mobile set in which the sim was used but prior to the supply of call details the case was transferred to DIU. He has denied the suggestion of counsel for accused that sim card has been planted upon the accused or that accused was not arrested from the place as stated by me or that accused did not make any disclosure statement.
50. PW28 V. Shankarnarayanan, Sr. Scientific Officer (Biology), FSL, Rohini has deposed that two sealed parcels were sent to FSL, Rohini and has proved detailed biological report prepared by him Ex. PW28/A. He has also proved serological report prepared by him as Ex. PW 28/B.
51. Insp. A. S. Dhaka has deposed as PW 29 in this case. He has deposed that on 23.05.05 while he was posted as Inspector DIU, NW District, when file was transferred to DIU, the same was given to him for further investigation. He has deposed that on 25.05.05 he inspected the place of STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :33: occurrence with ASI Sultan Singh and thereafter on 01.06.05 he along with Dr. Gupta and Dr. Anil visited the place occurrence and thoroughly examined the same. PW 29 has further stated that on 03.06.05 he recorded statements of Ms. Kanchan, her father Balwant and mother Smt. Roshni and also took specimen handwriting of Ms. Kanchan on the basis of love letter Ex. PWX2. He has also stated that on 15.06.05 SI Manohar Lal, draftsman handed over to him scaled site plan.
52. PW29 Insp. A. S. Dhaka has also stated that on 19.06.05, he recorded statement of complainant Avdhesh Kumar. He has further deposed that on 16.07.05 exhibits were sent to CFSL, Hyderabad and thereafter on 21.07.05 after completion of investigation, challan was prepared and filed before the court through SHO, PS Shalimar Bagh.
53. During cross examination by counsel for accused PW29 has admitted it as correct that no incriminating article was recovered from the place of occurrence during investigation. He has denied the suggestion of counsel for accused that letter Ex. PW 16/B was got written from STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :34: Kanchan on 03.06.05 at DIU office during investigation. PW 29 has admitted that he did not conduct any investigation regarding the joint photograph of Kanchan and deceased Sandeep as to from where it was got photographed and as to the place from where it was photographed. He has denied the suggestion of counsel for accused that the said photograph was subsequently manufactured to create evidence in connivance with the father of the deceased or that he did not record statements of witnesses correctly or that he did not fairly investigate the case or that investigation has been done at the instance of father of deceased. PW29 has further denied the suggestion of counsel for accused that during the postmortem doctors had taken 20 photographs or that they were given to him during investigation by the doctors.
54. PW29 Insp. A. S. Dhaka recalled for further examination in chief u/s 311 CrPC. He deposed that during investigation he came to know that landline no.27327605 installed in the name of Bharat Lal at LP-39E,Pitam Pura, Delhi and deceased mobile no. was 9891650005 but he did STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :35: not investigated whether the sim recovered at the instance of accused having the number of deceased. He has not investigated this aspect and also the seizure memo of sim Ex. PW15/A which was prepared by PW27 SHO Hari Darshan Dahiya. In cross examination he admits that he did not record any supplementary statement of PW10 Kanchan except mark 10/A.
55. PW30 HC Mukesh Chand has proved the entries made by HC Abdul Aziz, who was working as MHC(M) during the investigation of this case.
56. I have heard Ld. APP Sh. P. K., Verma on behalf of state and Sh. C. L. Gupta, counsel for accused. I have considered respective submissions of both the counsels and perused the entire record.
57. The star witness of the prosecution is PW6 Raj Kumar. The testimony of PW6 Raj Kumar has been discussed herein above in detail. He has testified that deceased Sandeep was having love affair with PW10 Kanchan, who is the niece of accused. Deceased was residing at LP 25F, Pitampura, Delhi and girl Kanchan was residing in front of his STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :36: house. On 10.04.05 at about 6.00/6.30 pm, Sandeep deceased had gone somewhere and did not return. Thereafter when PW6 was coming after taking dinner he saw one person lying on the ground in front of the house of Kanchan. When he saw that the injured person lying there was Sandeep, he called his friend Kumud Kumar and removed him to Muni Maya Ram Hospital and from there to Saroj Hospital. After Sandeep expired he learnt that Virender, maternal uncle of girl Kanchan was arrested by police. This witness turned out to be hostile on material aspects of the case and Ld. APP for the state cross examined him at length. He denied the suggestion of Ld. APP that accused is the person who refuted Kanchan on 10.04.05 at about 6.00 / 6.30 pm when he had seen Sandeep, the deceased and Kanchan walking in the park.
58. Further he admitted that both were walking in the park. This witness has denied another important fact that at about 8.30 pm, deceased Sandeep received a call from the house of Kanchan. He however admitted that Sandeep did not return till 10.00 pm and on repeated calls on his phone, STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :37: he did not respond. He has denied that he went to house of Kanchan and saw that accused and Sandeep, the deceased, were standing in the balcony of third floor and were exchanging hot words and Sandeep was saying that he cannot live without Kanchan and he would marry her. He denied that accused uttered words that he would finish him and then threw him from the third floor. PW6 Raj Kumar denied that he had made complaint voluntarily to the police. This witness has explained that he had made the complaint under pressure of parents of deceased Sandeep. The testimony of PW6 Raj Kumar is totally contradictory and is fatal to the prosecution case.
59. PW2 Kumud Kumar also testified that on 10.04.05 he was residing with friends Raj Kumar, Sandeep (deceased), Pankaj and another Raj Kumar at house no. LP 25 F, Pitampura, Delhi. This witness has deposed that after taking dinner he was coming to his room at about 11.00 pm, then Raj Kumar told him that Sandeep went to another building just opposite to their house and had not returned. These STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :38: facts are hear-say and are objected by the Ld. Counsel for accused. The objection of the Ld. Counsel for accused is legal as he deposed these facts but never witnessed these facts and, therefore, the same are not admissible. He further testified that along with Raj Kumar went to the other building and saw crowd on the road. Crowd had gathered just below the balcony of the third floor of that building and when he went near he saw that one person was lying with face towards ground and found that it was Sandeep and he was alive. His clothes were torn as if some one dragged him. His gold neck chain was lying there and his mobile phone was in broken condition and there was no sim card in it at that time.
60. Ld. Counsel for the accused further made objection on the opinion given by witness that Sandeep (deceased) was apparently thrown by somebody from the third floor of the building. The objection is legal and is, therefore, sustained as PW2 Kumud Kumar did not witness the fact that deceased was thrown by somebody from the third floor. He further corroborated that he along with Raj Kumar removed the deceased to hospital.
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61. This witness too turned out to be hostile and Ld. APP for state cross examined him at length. He expressed that he does not remember whether there was affair between deceased Sandeep and PW10 Kanchan. He explained that the parents of deceased Sandeep were pressurizing him to make statement as they lost their son. However, he admitted that on 10.04.05 he had seen at about 6.00/6.30 pm deceased Sandeep and Kanchan talking to each other in part and they were seen by maternal uncle of Kanchan and he object to Kanchan and thereafter Sandeep was in a sad mood as Kanchan was slapped by her maternal uncle. This witness explained that he had told the facts to the police as per wishes of the parents of deceased. He had not given any telephone to Sandeep on his mobile when he failed to return till 10.00 pm. He further testified that he had told the police that he saw deceased Sandeep and maternal uncle of Kanchan i.e. accused on the third floor of LP 39E, Pitampura, Delhi and they were quarreling and exchanging hot words with each other and thereafter deceased was thrown by accused from the third floor and ran away from STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :40: the spot. He explained that these facts were told to police as per wishes of parents of deceased though he had not seen these facts by himself.
62. The testimony of PW2 Kumud Kumar is also not supporting the prosecution case. He has also denied all other material facts as recorded by police in his statement.
63. The prosecution further relied upon another witness of the incident PW7 Sonu Rathore. This witness also turned out to be hostile. In the cross examination by Ld. APP for the State, he denied all the suggestions put to him. He denied that he saw Sandeep (deceased) with Kanchan in the park on 10.04.05 at about 6.00/6.30 pm. He also denied the fact that at about 8.15 pm he saw Sandeep climbing on the stairs of Kanchan's house.
64. Apart from hostile nature of material witnesses PW2 Kumud Kumar, PW6 Raj Kumar and PW7 Sonu Rathore, the Investigation Officers PW27 ACP Hari Darshan Dahiya and PW29 Insp. A. S. Dhaka also committed legal error which cannot be cured. In the charge sheet both investigation STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :41: officers attached signed statements of these three witnesses Ex.PW2/A, PW6/A an PW6/DA out of which one of the statement mentioning date 22.04.05 and others are without any date. These statements are hit by Section 162 CrPC and not a legal piece of evidence.
65. Prosecution in support of the case examined three material link witnesses namely PW8 Balwant Singh, PW9 Roshni and PW 10 Kanchan. PW8 is the brother in law of accused and father of girl Kanchan while PW9 is the sister of accused and mother of girl Kanchan. PW10 Kanchan is the girl who as per prosecution story was allegedly having love affair with deceased Sandeep. All these three witnesses have not supported the prosecution case in any manner. These witnesses turned out to be hostile and Ld. APP for state cross examined these witnesses at length but nothing incriminating to the accused could be extracted from their cross examination.
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66. PW8 Balwant Singh during his cross examination by Ld. APP for State has denied the suggestion that police made any enquire from him and he made any statement to the police or that he had told the police that Sandeep Kumar was living in H. No. LP-25F, with his friends or that accused was living with him in the same house ever since he came to Delhi or that deceased Sandeep had come to his house or that deceased told him that he was in love with Kanchan and wanted to marry her.
67. Smt. Roshni as PW9 in her cross examination by Ld. APP for the state denied the suggestion of Ld. APP for state that on 10.04.05 accused had visited her house or told her that Kanchan was talking to one Sandeep in the park or that her husband and accused had scolded her daughter Kanchan on this issue or that in the meanwhile Sandeep (deceased) also came to her house and accused had scolded him too .
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68. Ms. Kanchan as PW10 in cross examination by Ld. APP for the state has denied his suggestion that she made any statement to police on 03.06.05 Ex. PW10/A. She has further stated that in photograph Ex PW16/A1 she is seen in photograph but has stated that she cannot tell as to who is the boy with her in photograph or if boy in the photograph is Sandeep. She has further denied the suggestion of Ld. APP for the state that she had written Ex. PW16/B to Sandeep or that she was having love affair with Sandeep or that her mama i.e. the accused was at her house on 11.04.05 or that flat no. LP-25F, is situated in front of flat no. LP-39E, Pitampura or that on 10.04.05 at about 7.00 pm she along with deceased Sandeep were roaming in a park or that accused saw them and then took her forcibly to her house or that accused telephoned Sandeep (deceased) and called him to her house or that during altercation, accused gave beatings to Sandeep and pushed him from the third floor of our house and then ran away from there or that she has deposed falsely to save the accused who is her maternal uncle.
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69. After going through the entire record of this case, I find that the investigation in this case has not been done properly by all the investigating officers. The incident of this case happened on 10.04.05 at 6.00 / 6.30 pm and the injured expired on 22.04.05 at 1.05 pm. The investigating officers of this case ie. PW24 ASI Sultan Singh and PW25 SI Mohar Singh took no pains to either record the statement of alleged eye witnesses Kumud Kumar, Raj Kumar and Sonu Rathore during this crucial 12 days period and also of father of deceased. According to PW Dr. L. C. Gupta the deceased remained conscious and also was capable to respond to verbal commands between 19.04.05 to 22.04.05 but none of the investigation officers make any effort to visit hospital to inquire about the possibility of examination of deceased as per guidance of doctors who were treating him for crucial three days i.e. 19.04.05 to 22.04.05. The investigation officers deliberately and intentionally did not investigate and join deceased Sandeep when he was alive and in condition to respond. Perusal of record further reveals that FIR of this case was registered after the death of Sandeep on 22.04.05.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :45: Prosecution has miserably failed to show any plausible reason as to why DD no. 2 recorded on 11.04.05 was kept pending till 22.04.05 i.e. the date on which injured Sandeep expired.
70. Prosecution further relied upon PW10 Kanchan's handwritten love letter which were seized during investigation. As per PW29 Insp. A. S. Dhaka one original Hindi language register of PW10 Kanchan and one love letter written to deceased in original having 03 pages were seized. Thereafter same contents were written in admitted hand writing vide memo Ex. PW20/A. The investigation further revealed that father of the deceased PW16 Avdesh Kumar Singh on 19.06.05 also handed over one original love letter written in Hindi by Kanchan to deceased having 04 pages and one photograph of deceased Sandeep with Kanchan to PW29 Insp. A. S. Dhaka who seized vide Ex. PW 16/A. The admitted handwriting and subsequent hand writing was sent to FSL Hyderabad. As per admitted report Ex.PW20/B and PW20/C, Specimen signatures mark S1 to S4 and admitting handwriting Ex. A1 to A190 have also been written by the STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :46: same person who has written asked Q. 1 to Q. 4. The handwriting expert established that the lover letter Ex. PW16/B is the hand writing of PW10 Kanchan. It was the letter which was handed over by father of the deceased. However, there is no letter proved which was seized vide memo Ex. PW20/A dt. 03.06.05. However, on this aspect, PW10 Kanchan failed to support the prosecution that she had written any love letter to deceased Sandeep. She also denied her photograph with the deceased. PW29 Insp. A. S. Dhaka seized two love letter letters but on record proved only one love letter. In his testimony, he also created doubt that he got written the same handwritten letter again in the police station for sample hand writing. It created doubt and the possibility is not ruled out that Ex. PW16/B and Ex. P2 may be written in the police station at the same time. Another glaring fact is that no date has been written on the love letter and how it came in the possession of PW16 Avdhesh Kumar Singh i.e. father of deceased. The prosecution miserably failed to explain these important aspects of investigation.
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71. The prosecution further relied upon another incriminating piece of evidence that is the recovery of sim card Ex. P4 which is alleged to be belonging to deceased Sandeep. PW23 Insp. Deen Dayal Kalshan proved the seizure of Sim in pursuance to disclosure statement of accused on 23.04.05 vide memo Ex. PW23/D from the house LP 39E, third floor, Pitampura from the iron rack in between books and copies. Further no efforts were made by the Investigation Officer to connect this sim card with the mobile number of the deceased and how it came in the possession of the accused. There is no specific piece of corroboration on the aspect that the recovered sim card Ex. P4 is the same which was used by deceased Sandeep in his mobile phone till the date of incident. PW29 Insp. A. S. Dhaka, PW27 ACP Hari Darshan Dahiya and PW 23 Insp. Deen Dayal Kalshan did not make any efforts to investigate and find out that recovered sim Ex. P4 is the same sim card belonging to the deceased.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :48:
72. PW 23 Insp. Deen Dayal Kalshan, PW27 ACP Hari Darshan Dahiya and PW 29 Insp. A.S. Dhaka and specially PW29 Insp. A. S. Dhaka although collected the call details of the deceased mobile Ex. W15/A no efforts made by them to analyze them. PW27 ACP Hari Darshan Dahiya and PW29 Insp. A. S. Dhaka made no efforts to investigate the call details of deceased mobile specially on the day of incident. Specifically a call was made about 18.38 pm from the landline number to the phone of deceased but it has not been investigated by any Investigation Officer. The family members of Kanchan, PW8 Balbir Singh and PW9 Smt. Roshni were not examined on the aspect of call details Ex. PW15/A as they mentioned the landline number belonging to them.
73. The most important and vital aspect of the present case is the testimony of PW14 Dr. L. C. Gupta. In his testimony he has specifically deposed that the deceased remained conscious and capable to respond to verbal commands between 19.04.05 to 22.04.05 but the investigating officers on that day and SHO Shalimar Bagh STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :49: PW27 Hari Darshan Dahiya seems that they remained negligent and made no efforts to visit and to know the condition of the deceased in the hospital and a deliberate and intentional attempt was made to keep DD No. 2 pending till 22.04.05. The testimony of PW14 Dr. L. C. Gupta also reflects that during autopsy 20 photographs were taken by photographer but they never saw the day of light. On this aspect, this court examined CW1 Insp. A. S. Dhaka, CW2 SI Mohar Singh and CW3 SI Rakesh Kumar but they all wriggled out from this important fact that they never received any photographs. PW14 further pointed out that he along with Dr. Anil Shandilya visited the scene of crime after conducting the post mortem and preparation of the report. A report was prepared which was not filed by the Investigation Officer with the charge sheet. PW29 in his examination in chief has also stated that on 23.06.05 he again visited the place of occurrence and took photographs by private digital camera. Perusal of the record reveals that no such photographs were placed on the judicial file by the police.
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74. Hence on the basis of above discussion and the fact that eye witnesses of the prosecution turned out to be hostile and failed to support the prosecution case and that the incriminating recovery of sim card and love letter is not established beyond reasonable doubt, the prosecution has failed to prove the charge beyond reasonable doubt. Hence the accused is granted benefit of doubt and is accordingly acquitted u/s 302 IPC.
75. Before parting with the present case, it is essential to draw the attention of Commissioner of Police on the intentional, negligent, deliberate, unscientific and unprofessional investigation carried out by the Investigation Officers in this case namely PW23 Insp. Deen Dayal Kalshan, PW24 ASI Sultan Singh, PW25 SI Mohar Singh, PW27 ACP Hari Darshan and PW 29 Insp. A. S. Dhaka. The most important aspect is that the SHO who remained posted from 10.04.05 to 22.04.05 kept the DD no. 2 pending and there was no effort to know the condition of deceased and any possibility of his examination as testified by PW 14 Dr. L. C. Gupta.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC. :51:
76. This is a case of where protectors of the society turn out to be predators of the society. PW29 Insp. A. S. Dhaka who was assigned special duty to investigate the case being member of DIU investigation branch but he also deliberately and intentionally made no efforts to bring the truth in the day of light so that the real culprits may be brought to books. All the five Investigation Officers who investigated the case in highly unscientific, unprofessional and negligent manner, shall be subject to strict departmental inquiry and if found guilty shall be punished as per law. Hence, Commissioner of Police is directed to institute a detailed inquiry and take appropriate action as per law against erring police officials. This court shall be informed accordingly. Operative portion of judgment be sent to Commissioner of Police for compliance.
Announced in the open court (SANJAY KUMAR) today i.e. 30.09.2010 ASJ-01 (NW),ROHINI COURTS: DELHI.
STATE VS NIRMAL KUMAR//FIR NO.914/04 PSASHOK VIHAR//U/S. 302/397/379/411/120B/34 IPC.