Delhi District Court
State vs (1). Abdul Samad @ Guddu on 9 March, 2022
IN THE COURT OF SH. MANISH GUPTA: ADDITIONAL
SESSIONS JUDGE: 04, WEST DISTRICT: TIS HAZARI COURTS :
DELHI
CNR No.DLWT010005682014
SC No. 56460/2016
FIR No. 293/2014
PS Kirti Nagar
U/s 302/34 IPC
State
Vs.
(1). Abdul Samad @ Guddu
S/o Mohd. Umar
R/o Village Jaliff Nangla,
P.S. Milak, District Ram Pur, U.P.
(2). Nazarul Hassan @ Ali
S/o Shamim Ahmed
R/o Village Bhikanpur Mondha,
P.S. Didoli, Amroha, U.P.
(3) Jalees Ahmed @ Lal Batti
S/o Bashir
R/o RZ132, Gali No.1,
Masjid Road, Nihal Vihar, Delhi : Accused Persons
Date of Institution of case : 30.09.2014
FIR No. 293/2014 PS Kirti Nagar Page no. 1 of 74
Date of decision : 09.03.2022
Final order : All three accused persons
acquitted
JUDGMENT
(1) The chargesheet in the present case was received by the concerned Ld. M.M. on 04.09.2014. The Ld. M.M. has taken cognizance of the offence on said date and after making compliance of provisions of Section 207 Cr.P.C. the Ld. M.M. ordered the matter to be put up before concerned Ld. District & Sessions Judge, West, Delhi for 30.09.2014 and thereafter it was assigned to the Ld. Sessions Court for trial.
(2) It is also relevant to note here that the Ld. M.M. has also passed detailed order dated 25.09.2014 u/s 7A of J.J. Act regarding the age enquiry of accused Nazarul Hassan @ Ali and it was held and concluded by Ld. M.M. that accused Nazarul Hassan @ Ali was major at the time of commission of the offence. Moreover, on 03.09.2014 accused Abdul Samad @ Guddu was declared to be "NOT JUVENILE"
on the date of commission of offence, as per order passed by Juvenile Justice Board concerned.
(3) The present case has been registered on the basis of complaint of complainant Mahesh Kumar Yadav S/o Lt. Sh. Ram Vilas Yadav and the said complaint is dated 02.05.2014 which is exhibited as Ex.PW 12/A. FIR No. 293/2014 PS Kirti Nagar Page no. 2 of 74 (4) In brief the relevant facts of the case as mentioned in the said document Ex. PW12/A are that the complainant Mahesh Kumar Yadav is resident of Madhubani, Bihar and he runs a shop of Chhole Bhature near A85, Lakkar Mandi, Kirti Nagar, Delhi along with his friend Saroj Yadav and also resides there. It is also mentioned in the said complaint that there is also a workshop of wood (Lakri ka karkhana) at A85, Lakkar Mandi, Kirti Nagar, Delhi wherein Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmed @ Lal Batti and their associates work as well as reside. It is also stated therein by the complainant that on 02.05.2014 at about 09:15 hours, Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmed @ Lal Batti as well as their associates brought one person namely Hari Shankar Sharma S/o Sh. Shiv Pujan Sharma R/o A148, Kirti Nagar, Delhi from the said workshop situated at A85, Kirti Nagar, Delhi and they had thrown the said person namely Hari Shankar Sharma in front of said premises No. A85, Kirti Nagar, Delhi near electric pole and had also put water over him and number of persons gathered there and when the said persons enquired about the incident then Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmed @ Lal Batti and their associates fled away from there. The complainant has also stated therein that during that time Nazarul Hassan @ Ali was saying that "Ye sala (Hari Shankar) chor hai aur pahle bhi isne mera mobile churaya tha aur aaj phir phone nikalne ke liye aaya hai ".
(5) Complainant has also stated therein that subsequently it came to light that Hari Shankar Sharma had died. Complainant has further stated FIR No. 293/2014 PS Kirti Nagar Page no. 3 of 74 therein that he is having full confidence that Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmed @ Lal Batti and their associates are involved/having role in the death of Hari Shankar Sharma. Complainant had stated that legal action be taken against them.
(6) On 22.05.2015, the detailed order on charge was passed by the then Ld. ASJ, West, THC, Delhi and the charges were framed against the accused persons namely Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmed @ Lal Batti. The said charge was u/s 302 IPC r/w Sec. 34 IPC against the said accused persons. In the chargesheet, it is mentioned that eyewitness Saroj Kumar Yadav stated that the deceased was beaten and tortured in second floor of A85, Lakkar Mandi and site plan of the place of incident in second floor was also prepared on his instance and his statement u/s 161 Cr.P.C. was recorded wherein he stated that on 02.05.2014 at about 07:30 AM he went to use the toilet on second floor, A85, Lakkar Mandi, Kirti Nagar and he found that the deceased Hari Shankar Sharma was confined in the workshop of Jalees Ahmed @ Lal Batti and beaten by Nazarul Hassan @ Ali, his helper (chela) Rafique @ Raffi and Abdul Samad @ Guddu with wooden stick, kicks and fists. He further stated that at 9:15 AM deceased was brought down from second floor and thrown on the road by the above accused persons including Jalees Ahmed @ Lal Batti and others. He further stated that the deceased was unable to walk at that time and he fell down on the road and died at the spot. The charge framed against the said three accused persons namely Abdul Samad @ FIR No. 293/2014 PS Kirti Nagar Page no. 4 of 74 Guddu, Nazarul Hassan @ Ali and Jalees Ahmed @ Lal Batti on 22.05.2015 reflects that the coaccused Rafique @ Raffi could not be traced out by the police.
(7) The charge was read over and explained to the accused persons in vernacular and they were asked as to whether they want to plead guilty or claim trial. All the three accused persons pleaded not guilty and claimed trial. Thereafter, the prosecution witnesses were examined on behalf of State. Prosecution has examined thirty witnesses in total and on 24.07.2019 prosecution evidence was closed. Thereafter, the statement of accused persons u/s 313 Cr.P.C. was recorded. The accused persons also examined one witness in defence i.e. DW1 Zubair. No other defence witness was examined in this case and thereafter defence evidence was closed.
(8) I have already heard final arguments and perused the record including the written arguments filed on behalf of accused persons.
(9) The prosecution has examined PW1 ASI Ajeet Singh, PW2 Ct. Satpal, PW3 Sh. Saroj Kumar Yadav, PW4 Rajesh Sharma, PW5 Dinesh Sharma, PW6 Mohd. Fayeem, PW7 HC Babita, PW8 SI Kuldeep Singh, PW9 HC Dhanesh, PW10 Ct. Virender Singh, PW11 Mr. Sayeed, PW12 Mr. Mahesh Kumar Yadav, PW13 Dr. Komal Singh, PW14 ASI Om Parkash, PW15 Sh. Mohan Lal Daga, PW16 HC Naresh Kumar, PW17 ASI Yogesh Dutt, PW18 Dr. Manoj Singh, PW19 Dharmender Pandey, PW20 H.Ct. Anil Pandey, PW21 Ali FIR No. 293/2014 PS Kirti Nagar Page no. 5 of 74 Sher, PW22 Fakir Ali, PW23 ASI Padam Singh, PW24 Ct. Vikas Singh, PW25 Ajit Singh, PW26 Amit Madan, PW27 Manisha Upadhyaya, PW28 Ct. Mahavir, PW29 M.L. Meena and PW30 Insp. B.M. Bahuguna.
(10) PW1 ASI Ajeet Singh deposed that on 02.05.2014 he was posted as Incharge Crime Team and on that day a call was received in control room regarding lying of the dead body at A85, Timber Market, Kirti Nagar and he along with crime team staff, Ct. Satpal photographer and HC Uttam Singh, Finger Print Proficient reached at the spot and a male dead body was found at the spot. He also deposed that Insp/SHO, SI Harbhajan and other police persons were also present on the spot. PW1 further deposed that he conducted examination of the dead body and 7 photographs of dead body were got snapped through Ct. Satpal which are marked A1 to A7. He further deposed that he prepared detailed record which is Ex.PW1/A bearing his signature at point A. In cross examination conducted on behalf of accused persons, he admitted that many public persons had gathered there and also admitted that there were wooden factory and other shops near the spot. He also stated in crossexamination that IO and other police officials had not enquired the public persons in his presence.
(11) PW2 Ct. Satpal deposed that on 02.05.2014 he took the photographs of the dead body at the spot which are Ex.PW2/1 to PW2/7 and its negatives are Ex.PW2/8 to PW2/14. Nothing material has come out in his crossexamination.
FIR No. 293/2014 PS Kirti Nagar Page no. 6 of 74 (12) PW3 Sh. Saroj Kumar Yadav s/o Sh. Anuja Yadav deposed that during summer season in 2014, he was residing at A85, Timber Market, Kirti Nagar, which was a three storey building and he was residing at ground floor along with 23 other persons. He further deposed that he was employed at a kiosk of ChholaBhatura, being run near A85, Timber Market, Kirti Nagar. He further stated that on 02.05.2014, he had gone to attend call of nature at around 6:45 a.m. at common toilet situated at second floor and he saw Guddu and Ali, both accused who were present in the court (correctly identified by the witness), who were present along with one more person and he had not seen the said other person prior to said date. He stated that he knew Guddu and Ali before hand since they had been working there in wooden work. He also deposed that after attending the call of nature he went downstairs and had seen nothing else. He also stated that police officials visited the building and made inquiries from him.
Ld. Addl. P.P. for the State sought permission of the court to crossexamine the witness as he was resiling from his previous statement. Same was heard and allowed. In said crossexamination, PW3 deposed that in the year 2015, he was residing near Atlas Chowk, Gurgaon, Haryana and IO made inquiries from him but his statement was not recorded. He admitted that he had stated that Nizarul @ Ali, Rafiq @ Rafi and Guddu Contractor had apprehended one person. He denied the suggestion that he stated to the police that aforesaid persons were making inquiries from that person about mobile. He denied the suggestion that Ali informed him that they apprehended that person while he was stealing mobile. He also denied the suggestion that FIR No. 293/2014 PS Kirti Nagar Page no. 7 of 74 aforesaid persons were beating that person with leg blows, fist flows and wooden plank mercilessly. PW3 admitted that after 15 minutes, he came downstairs and at that time accused Lal Batti was not present. He denied the suggestion that he stated to the police that about 9:15 a.m., accused Lal Batti, Nizarul @ Ali, Rafiq @ Rafi and Guddu Contractor brought that person down stairs and threw him on the road near electric pole or that thereafter they went away or that that person was not able to walk or that he was under the influence of liquor or that he was lying over there. He also denied the suggestion that somebody sprinkled water on the head of that person and he did not respond and after sometime he came to know that said person had expired. He also denied the suggestion that accused Lal Batti, Nizarul @ Ali, Rafiq @ Rafi and Guddu Contractor alongwith other workers who used to work at A85 had absconded. He denied the suggestion that name of deceased was disclosed as Hari Shankar Sharma or that he stated to the police that Hari Shankar Sharma died due to the beatings given by Nizarul, Rafiq, Guddu and Lal Batti. He also denied the suggestion that IO prepared the site plan at his instance. He further deposed that accused Nizarul, Guddu and Lal Batti are present in the court (correctly identified) and are known to him as they were working in building no.A85. He denied the suggestion that he is deposing falsely as he has been won over by the accused persons.
PW3 was also crossexamined by Ld. Counsel for accused Nazarul Hassan wherein he deposed that he did not know whether there was any dispute between the landlord and accused persons. He again stated that there might be any dispute and the name of landlord was FIR No. 293/2014 PS Kirti Nagar Page no. 8 of 74 Shera. The crossexamination of PW3 on behalf of accused Abdul Samad @ Guddu and Jalees Ahmad @ Lalbatti is nil despite opportunity given.
(13) PW4 Rajesh Sharma deposed that on 02.05.2014, he came to Delhi after receiving the information regarding death of his brother Hari Shankar Sharma and identified the dead body before the police in hospital vide identification statement Ex.PW4/A bearing his signature at Point A. He deposed that after postmortem of dead body of his brother he received the dead body vide receipt memo Ex.PW4/B bearing his signature at Point A. Crossexamination of this witness is nil despite opportunity given.
(14) PW5 Dinesh Sharma S/o Sh. Shiv Pujan Sharma deposed that on 30.04.2014 he was residing in Kirti Nagar, Delhi along with his brother Hari Shankar Sharma and on same day he returned from the village. He deposed that on 01.05.2014 his brother Hari Shankar Sharma told him in the morning hours that he was going for his duty and in the lunch hours he met him outside his company and on his asking he did not take lunch and went away and on the same day he did not turn up at their rented room. PW5 deposed that he searched him but he could not met him and on 02.05.2014 while he was on his duty in the morning hours he came to know that the body of his brother Hari Shankar Sharma was lying in front of A85, Kirti Nagar and thereafter he went there and saw that the dead body of his brother was lying there and on local enquiry he came to know that resident of A85 gave beatings to his brother and FIR No. 293/2014 PS Kirti Nagar Page no. 9 of 74 he further came to know that assailant's name was Lalbatti. He further deposed that he made complaint to the police after 2 days and he identified the dead body of his brother Hari Shankar before police vide identification statement Ex.PW5/A bearing his signature at Point A and after the postmortem he received the dead body of his brother vide receipt memo Ex.PW4/A bearing his signature at point B. He also deposed that he can produce the complaint given to the police. This statement was recorded on 29.04.2016 and his further examination in chief was deferred for seeking clarifications from IO. On 09.05.2016 PW5 deposed that he has not brought the complaint as he has not given any complaint to the police. He deposed that on previous date he had stated that he had filed the complaint after two days of the incident, due to confusion and actually he was simply called at the PS. It has come interalia in the crossexamination of PW5 that his brother Hari Shankar Sharma had no fixed place of work and on 01.05.2014 his brother had not told him as to where he was going for work. He also stated in crossexamination that they did not make any complaint with police on 01.05.2014 when his brother did not return. He also deposed that he did not remember the name of persons through whom he came to know about the presence of dead body of his brother, though he received the information at about 09:00 a.m. on 02.05.2014. He also deposed that he saw his brother Hari Shankar Sharma lastly on 01.05.2014 at about 01:00 p.m. when he met him during lunch break. He denied the suggestion that he had beaten his brother due to some quarrel and after killing him he has put his dead body at the place of recovery of dead body. He denied the suggestion that since he had FIR No. 293/2014 PS Kirti Nagar Page no. 10 of 74 beaten his brother therefore he did not lodge any complaint regarding his missing. The above crossexamination was done on behalf of accused Abdul Samad @ Guddu.
Ld. Counsel for accused Nazarul Hassan also cross examined this witness wherein the witness has interalia deposed that he had not stated to the police that "jin logo ne mere bhai ko mara hai, unke khilaf karwahi ki jaye". He deposed that he had told the police that he made local enquiry and came to know that residents of A85 had given beatings to his brother (he was confronted with his statement u/s 161 Cr.P.C. Ex.PW5/BA wherein it is not so recorded). He deposed that he had not disclosed to the police the names of persons from whom he came to know that resident of A85 had given beatings to his brother. He denied the suggestion that his statement was not recorded by police on 02.05.2014. This witness was also crossexamined on behalf of accused Jalees Ahmed @ Lalbatti wherein he has stated that police did not record statement of any witness in his presence. He denied the suggestion that he has deposed falsely about the accused Lalbatti in his statement. The witness also deposed that he did not name accused Lalbatti before the police and volunteered that it was not asked by the police.
(15) PW6 Mohd. Fayeem S/o Mohd. Usman deposed in chief examination that he do not know anything about this case. He further deposed that however police made inquiry from him in respect of one murder which took place in the area of Kirti Nagar but he do not know as to whose murder has been committed. This witness was also cross FIR No. 293/2014 PS Kirti Nagar Page no. 11 of 74 examined by Ld. Addl. P.P. for the State as he was not disclosing the facts of the case. In said crossexamination PW6 deposed that he is a carpenter and in the month of May 2014 he worked at A85, Lakkar Mandi, Kirti Nagar under one contractor namely Hasan and that he used to sleep there only during night. He admitted that on 02.05.2014 he woke up in the morning at around 5:00 am and came outside. He volunteered that he had come outside for answering the call of nature. He denied the suggestion that he had stated before the police that he came outside for walking and he returned after an hour. He admitted that he had come to know that mobile thief has been caught at A85, second floor but it was not when he returned from walk. He volunteered that he came to know when he returned after taking bath etc. He admitted that after coming to know about the said fact, he had also gone to second floor of A85 and further admitted that when he reached at second floor, he saw that Nazarul Hassan @ Ali, his helper Rafiq @ Rafi & Guddu thekedar, resident of third floor had caught hold of one person. He denied the suggestion that he has stated before the police that above mentioned three persons were beating the said person with kicks, fist blows and fatti. He also denied the suggestion that he stated before the police that said person was under influence of intoxicant and was unable to speak. He admitted that during enquiry, Nazarul Hassan @ Ali told him that the said person was apprehended while he was stealing the mobile phone. He also denied the suggestion that he stated before police that Nazarul Hassan @ Ali has also told that his earlier mobile was also stolen by the said person. He denied the suggestion that he has stated before police that Nazarul Hassan @ Ali further told him FIR No. 293/2014 PS Kirti Nagar Page no. 12 of 74 that he has suspicion on Guddu Thekedar in respect of the theft of his earlier mobile. He also denied the suggestion that he has stated before police that he asked Nazarul Hassan @ Ali not to beat that person and said person should be handed over to police but he did not pay any heed to his suggestion. He volunteered that he has stated "chhor do, police ko de do", and thereafter he left the room. This witness admitted that after about 23 hours, he again visited third floor and at that time Lalbatti was also present there and he was making enquiry from the said person. He denied the suggestion that he had stated before the police that at that time Lalbatti was beating the said person with kick and fist blows or that said person was bearing the beatings silently. He also denied the suggestion that he had stated before the police that Lalbatti asked him "tu bhi nasa karta hai, tu bhi is se pooch kar dekh". He also denied the suggestion that he has stated before police that thereafter Lalbatti said that "ye nase main lagta hai, isko niche chhod do". He further denied the suggestion that he has stated before police that on asking of Lalbatti, Nazarul Hassan @ Ali his helper Rafiq @ Rafi, Gudu Thekedar & Lalbatti took the said person on ground floor and left him near the electric pole. He volunteered that he was not there. He denied the suggestion that he has stated before police that said person was unable to move and was sitting there and thereafter he was laying there. He also denied the suggestion that he has stated before the police that someone poured water on his head but he did not wake up and after some time he came to know that he had died. Witness also denied the suggestion that he has stated before police that after death of said person, public persons started gathering there and thereafter, Lalbatti FIR No. 293/2014 PS Kirti Nagar Page no. 13 of 74 and his associates fled away. He also denied the suggestion that he has stated before the police that after fleeing of Lalbatti and his associates, he alongwith one Sayeed remained at A85 and that after seeing the crowd Sayeed also went away. Witness admitted that after some time, Sayeed received telephone call of landlord namely Amit Shera, who called them. He also admitted that thereafter, they were taken to the PS Kirti Nagar by Amit Shera. He further admitted that police had made enquiry from them. He admitted that he had not seen the said person who was apprehended at the second floor, prior to the date of incident. He deposed that he cannot say if the name of deceased was Hari Shankar Sharma. He further deposed in the said crossexamination as conducted by Ld. Addl. P.P. for the state that he knew Lalbatti, Nazarul Hassan @ Ali, Rafiq @ Rafi and Guddu Thekedar for about 810 days prior to the incident as he was working there for about 810 days. He stated that contractor namely Hasan had brought him at the said place for work and further deposed that Lalbatti was working as thekedar separately from Hasan. He denied the suggestion that he used to take food from above mentioned four persons. He deposed that aforesaid four persons did not reside there at A85 and he again stated that Guddu thekedar, Sayeed, he himself and Nazarul @ Ali were residing in the said building. He stated that he do not know the native place of Lalbatti and volunteered that he resides somewhere near Bareli. He also deposed that he do not know the native place of Nazarul Hassan @ Ali, Guddu Thekedar, Rafiq @ Rafi. He admitted that accused Guddu Thekedar and Nazarul Hassan @ Ali who are present in the court were the persons who had caught hold the said person alongwith Rafiq @ Rafi. He FIR No. 293/2014 PS Kirti Nagar Page no. 14 of 74 volunteered "Pakda lekin chhod diya". He admitted that accused Lalbatti who is present in the court was also present there and making enquiry from the said person. He volunteered that he had come there subsequently. Witness denied the suggestion that he is deposing falsely as he has been won over by the accused persons. He denied the suggestion that he had deliberately not disclosed all the material facts of the case with a view to save the accused persons.
Brief crossexamination of PW6 was conducted on behalf of accused persons. In crossexamination PW6 deposed that on date of incident he had left A85 at about 7:05 am for walk and went towards PS Kirti Nagar and he returned at about 10 a.m. He admitted that he had not seen any person on the spot when he returned there. He further deposed that he do not know accused Nazarul Hassan @ Ali. He admitted in his crossexamination that he had wrongly deposed that when he reached at second floor, he saw that Nazarul Hassan @ Ali, his helper Rafiq @ Rafi and Guddu thekedar had caught hold one person. He volunteered that he had become a bit confused at the time of his earlier examination. He also stated in crossexamination that he earned Rs.100150200/ per day. He also deposed that he do not know as to what clothes the said person namely Hari Shankar was wearing. He volunteered that he was not present.
(16) PW7 HC Babita deposed that on 02.05.2014, she was posted at PS Kirti Nagar and working as duty officer from 8:00 am to 4:00 pm and at about 10:00 am she received a wireless message through wireless operator that one dead body was lying at A85, Kirti Nagar, Lakkar FIR No. 293/2014 PS Kirti Nagar Page no. 15 of 74 Mandi and on the basis of same she recorded DD No. 12A and thereafter informed SI Harbhajan about the said DD for further necessary action. She produced original DD register and copy of the said DD is Ex.PW7/A. She is the formal witness who got recorded FIR No.293/2014 on the basis of Tehrir. She brought FIR register containing the competerized copy of FIR. Copy of same is Ex.PW7/B. Cross examination of this witness is nil despite opportunity given.
(17) PW8 SI Kuldeep Singh deposed that on 18.07.2014 he was posted at PS Kirti Nagar and on that day he was working as Juvenile Welfare Officer and on the same day, father of juvenile Abdul Samad (now accused in this case) had produced Abdul Samad and he made interrogation about Abdul Samad in the presence of his father. He prepared social background report. He further deposed that IO of the present case prepared the apprehension memo of accused Abdul Samad and recorded the version of the child. Crossexamination of this witness is also nil despite opportunity given.
(18) PW9 HC Dhanesh deposed that on 02.06.2014, he was posted at PS Kirti Nagar as constable and on that day duty officer handed over him the envelopes containing copies of FIR addressed to Ld. M.M. and other senior police officers in order to deliver the same to them and he left the police station by govt. motor cycle along with said envelopes containing copy of FIR. He deposed that he reached THC and delivered the copy of the FIR and thereafter he reached at the offices of Joint CP Western Range, DCP West and ACP and delivered the copy of FIR No. 293/2014 PS Kirti Nagar Page no. 16 of 74 FIR and thereafter he came back to the police station. Cross examination of this witness is also nil despite opportunity given.
(19) PW10 Ct. Virender Singh deposed that on 02.05.2014, he was posted at PS Kirti Nagar and was on emergency duty from 8:00 am to 8:00 pm. He further deposed that while he was attending call alongwith SI Harbhajan Singh where SI Harbhajan Singh received another call and he do not remember DD number of the same and thereafter he alongwith SI Harbhajan Singh went to A85, Lakkar Market, Kirti Nagar where they saw that one dead body was lying near the electric pole. He further deposed that SI Harbhajan Singh called crime team and crime team officials inspected the spot and took the photographs and thereafter on the directions of SI Harbhajan Singh, he took the dead body to the mortuary of DDU hospital. In crossexamination PW10 deposed that he do not remember the place where SI Harbhajan Singh received information about the present case. Witness volunteered that at that time they were attending another call in the area of PS Kirti Nagar. He also deposed that he do not remember the time when the crime team officials reached at the spot and also do not remember the number of officials of crime team. He also deposed that there were a lot of public persons at the spot and he do not remember the time, but the dead body was removed in hearse van. He denied the suggestion that he did not join the proceedings at any point of time or that he was deposing falsely. He further deposed in crossexamination that IO had made enquiry from public persons in his presence at the spot but he can not tell their names and rukka was sent in his presence but he do not know FIR No. 293/2014 PS Kirti Nagar Page no. 17 of 74 the name of police official who took the rukka. He further deposed that he do not remember the name of persons on whose instance the rukka was prepared.
(20) PW11 Mr. Sayeed deposed that on 02.05.2014 he was residing at 3rd Floor of A85, Lakkar Mandi, Kirti Nagar and at around 7:00 am when he woke up and went to answer the call of nature and when he returned, he received a call from the owner namely Shera and he called him at a petrol pump situated near Maya Puri. He further deposed that he took him to PS Kirti Nagar and Shera told him that a quarrel took place and he has to give the statement to the police. He further deposed that during enquiry made by the police, he told them that he had gone to toilet.
Ld. Addl. P.P. for the State also crossexamined this witness as he was not disclosing the true facts of the case. In said cross examination the witness denied the suggestion that he had stated to police that when he woke up at around 7:00 am, he heard the hue and cry from the 2nd floor of A85, then he came to second floor and saw that Nazru @ Ali and his helper Rafiq @ Rafi and Guddu Thekedaar had caught hold of one person and all of them gave beatings to him by kicks and fist and wooden fatta in the room of Lalbatti. He also denied the suggestion that he has stated to police that he was told by Nazru @ Ali that said person was apprehended while he was committing theft of mobile phone. He also denied the suggestion that he stated to police that Nazru told that 78 days ago, his mobile phone was stolen from same place and cost of the said mobile phone was Rs.12,000/ and at that FIR No. 293/2014 PS Kirti Nagar Page no. 18 of 74 time he raised suspicion towards Gudu and on this issue some altercation took place with him. He also denied the suggestion that he stated to police that he asked Ali not to beat him and suggested to call any reasonable/wise person and handover him to the police. He also denied the suggestion that he told police that Ali made call to Lalbati and Lalbati asked Ali to make the said person sit there and he would be coming and after one hour Lalbati came there and made enquiries from said person and gave beatings to him by kicks and fist blows but said person did not say anything and he was under influence of the drugs. The said witness i.e. PW11 has denied all the material suggestions put to him by Ld. Addl. P.P. for the State and the said witness was also confronted with the relevant portion of his statement u/s 161 Cr.P.C. Ex. PW11/A wherein the said facts were reflected which were stated to the police by this witness. PW11 has denied all the material and relevant suggestions put to him during his crossexamination conducted by Ld. Addl. P.P. for the State. Lastly, he denied the suggestion that he is deposing falsely and he has been won over by accused or that he is deliberately not disclosing the true facts of the case happened before him with a view to save the accused persons. The crossexamination of this witness on behalf of accused persons is nil despite opportunity given.
(21) PW12 Mr. Mahesh Kumar Yadav deposed that he has been working at the shop of his brotherinlaw situated at A85, Lakkar Mandi, Kirti Nagar, Delhi and on 02.05.2014 at around 7:007:30 am, he left the shop of his brotherinlaw to bring refined oil and when he FIR No. 293/2014 PS Kirti Nagar Page no. 19 of 74 returned after about half an hour, he found that a crowd had gathered there. He further deposed that his nephew Saroj and other staff told him that Lalbati, Ali and Guddu etc. have beaten one person namely Hari Shankar. He further deposed that said Hari Shankar was lying near the electric pole near his shop. He further deposed that more public persons gathered there and the public persons started damaging the furniture and other articles of his shop and thereafter the said shop was shut and they went away from there, however, the lock could not be put up on the shop. He further deposed that when they returned to the shop at around 4:005:00 pm to check their shop, police officials met them and took them to police station and made inquiries about the incident. PW12 further deposed that he had not seen anybody beating anyone.
Ld. Addl. P.P. for the State also crossexamined this witness as the witness was not disclosing the true facts of the case. In the said crossexamination the present witness has admitted certain suggestions and denied certain other suggestions. This witness has not admitted the material suggestions as given by Ld. Addl. P.P. for the State during crossexamination. In said crossexamination the witness interalia denied the suggestion that he had stated to police that when the public persons started gathering and asked about the incident then Guddu, Nazru @ Ali, Lalbati and their colleagues fled away. He also denied the suggestion that he had stated to police that he is sure that Nazru @ Ali, Lalbati, Guddu and their associates caused death of Hari Shankar. He denied the suggestion that he is deliberately not deposing true facts as he has been won over by the accused persons.
PW12 was also crossexamined on behalf of accused persons FIR No. 293/2014 PS Kirti Nagar Page no. 20 of 74 wherein the witness deposed that it is correct that owner of his shop is Mr. Shera and he is the tenant. He deposed that he is unaware about any rivalry between Shera and the accused persons. He denied the suggestion that he was called to the police station by Shera only or that he had given statement before the police, only on the asking of Shera. He denied the suggestion that he was not present at his shop on the date of incident or that he came only after hearing the damage of his shop. The witness admitted that on the date of incident, he was having the mobile no.7840880842. He admitted that he had been called by the police and he had not gone to police on his own. He further deposed that he had not made any call to the police on the date of incident, about the incident or about the facts told to him by Saroj, however, he had made a call to police subsequently, when damage was being caused in his shop.
(22) PW13, Dr. Komal Singh from DDU hospital deposed that on 02.05.2014, he was posted as HOD, Department of Forensic Medicine, DDU hospital, Delhi and on that day he conducted postmortem on the body of deceased Hari Shankar Sharma S/o Sh. Shiv Poojan Sharma and the postmortem was conducted from 4:15 pm to 5:15 pm and there was alleged history that deceased was found at Lakkar Market, Kirti Nagar, Delhi on 02.05.2014 at 10:00 am and was brought dead in DDU hospital in emergency at about 1:55 pm. He further deposed that during postmortem he had observed the external injuries mentioned in postmortem report No.550/2014 in the head of external examination and the external injuries are at point 'X' on FIR No. 293/2014 PS Kirti Nagar Page no. 21 of 74 Ex.PW13/A. He deposed that cause of death was haemorrhagic and neurogenic shock subsequent to the multiple blunt impacts made directly over the body surface of the deceased and all the injuries together were sufficient to cause death in ordinary course of nature. He deposed that manner of death was homicide and time since death was approximately eight hours prior to the postmortem examination. He further deposed that during postmortem he preserved the blood in gauze piece, clothes of deceased and blood of deceased and viscera of the deceased and all the above exhibits were sealed with the seal of DFMT DDU Hospital and later on handed over to the IO. He deposed that after postmortem, he prepared detailed report Ex.PW13/A running into four pages and all pages bearing his signature at point A. He further deposed that on 25.07.2014, IO of the present case Insp. B.M. Bahuguna moved an application alongwith pullanda of the weapon of offence sealed with the seal of BMB for seeking subsequent opinion regarding consistency of the weapon of offence with regard to the injuries sustained on the body of deceased. He further deposed that on opening the pullanda, a grey colour wooden stick having six surface resembling hexagonal was found. The said witness further deposed that after considering the nature of injury and the said weapon of offence which had been produced, he was of the opinion that all the injuries which were sustained on the body of deceased could have been inflicted by the produced weapon stick. He further deposed that after examination, the weapon of offence was sealed with the seal of DFMT hospital and handed over to the IO. He further deposed that his detailed report in this regard is Ex.PW13/B running into two pages and bearing his signature FIR No. 293/2014 PS Kirti Nagar Page no. 22 of 74 at point A. This witness was also crossexamined on behalf of accused persons wherein he deposed that he cannot tell the chemical contents found in the stomach i.e. half liter of greenish liquid. He further deposed in crossexamination that haemorrhagic and neurogenic shock together could be possible only by traumatic injuries. In cross examination the question was put to the witness by Ld. Counsel for accused Jalees Ahmed @ Lalbati that the death of deceased was possible due to taking of excess greenish liquid as mentioned in the postmortem report. In the answer the witness replied that he cannot tell the chemical composition of greenish liquid, therefore, he cannot comment. The witness admitted that the time of injury has not been mentioned in the postmortem report. The witness volunteered that after going through the report it is clear that all the injuries were fresh and were inflicted within 24 hours. He denied the suggestion that he had not noticed any such thing during examination on the basis of which it can be said that the injuries were fresh or inflicted within 24 hours. The witness admitted that no fracture was observed on the body during examination. He denied the suggestion that injuries on the body of the deceased were not sufficient to cause his death. The witness deposed that he do not remember if the IO had brought only one danda at the time of obtaining subsequent opinion of the weapon of offence. The witness admitted that as per the report, only one danda was there in the pullanda. Lastly, the witness admitted in the crossexamination that his opinion would be same if the IO produced more dandas of similar size and shape and consistency.
FIR No. 293/2014 PS Kirti Nagar Page no. 23 of 74 (23) PW14, ASI Om Parkash deposed that on 13.05.2014 he
was posted at Mapping Section, Delhi and on that day, on the request of Insp. B.M. Bahuguna, IO of the present case, he reached PS Kirti Nagar and from there he alongwith IO of this case visited the place of incident i.e. A85, WHS, Timber Market, Kirti Nagar, Delhi and at the instance of IO he took rough notes and measurements of the spot i.e. second floor of house no.A85, Lakkar Mandi, Kirti Nagar, Delhi and in front of house no. A85 in the gali, where dead body of Hari Shankar Sharma had been found. He deposed that on the basis of those rough notes and measurements he prepared two scaled site plans Ex.PW14/A and PW14/B, both bearing his signature at point A. He deposed that he handed over the same to IO and destroyed the rough notes and measurement after preparation of the scaled site plans. The cross examination of PW14 is nil despite opportunity given.
(24) PW15, Sh. Mohan Lal Daga deposed that he has been running a shop at A86, Lakkar Mandi, Kirti Nagar, Delhi. He deposed that he do not remember the date, month and year and probably it was last year and on the day of incident he came to his shop at around 10:00 am and saw that the crowd was there. He further deposed that one person was lying on the road in front of premises no. A85 and thereafter he made a call to the police by his mobile no.9818300153 and after that he left the spot and later on police recorded his statement in this respect. The testimony of this witness was recorded before the court on 25.11.2016. The crossexamination of this witness is also nil despite opportunity given.
FIR No. 293/2014 PS Kirti Nagar Page no. 24 of 74 (25) PW16, HC Naresh Kumar deposed that on 23.05.2014, he
was posted at P.S. Kirti Nagar as constable and on that day on the instructions of the IO he collected the two sealed pullandas alongwith sample seal from the malkhana vide RC No.40/21/14 and deposited the same at FSL Rohini. He further deposed that he returned to the police station and handed over the receipt of the FSL to MHC(M). He further deposed that so long as the case property remained in his possession, no one tampered with the same. He also deposed that IO recorded his statement in this respect.
He further deposed that on 30.05.2014, on the instructions of the IO, he collected one sealed envelope alongwith sample seal from the malkhana vide RC NO.430/21/14 and deposited the same at FSL Rohini. He returned to the PS and handed over the receipt of the FSL to MHC(M). He further deposed that so long as the case property remained in his possession, no one tampered with the same. He also deposed that IO recorded his statement in this respect. Nothing material has come out during his crossexamination.
(26) PW17, ASI Yogesh Dutt deposed that on 02.05.2014, at about 10:00:43 a.m. W.Ct. Reshma Baliyan received information from informer Vikas Goel regarding dead body lying at H.No.A85, Lakkad Mandi, Kirti Nagar vide PCR form Ex.PW17/A. He had also brought certificate U/s 65B, Indian Evidence Act in respect of the PCR form issued by SI Devender Kumar, Nodal Officer/CPCR/PHQ. He further deposed that he can identify handwriting and signature of SI Devender Kumar as he had worked with him during the course of his duty. The FIR No. 293/2014 PS Kirti Nagar Page no. 25 of 74 said certificate is Ex.PW17/B bearing signature of SI Devender at point A. Crossexamination of this witness is nil despite opportunity given.
(27) PW18, Dr. Manoj Singh deposed that on 02.05.2014 he was working in DDU hospital as Senior Resident and on that day at about 01:55 pm one patient namely Hari Shankar S/o Sh. Shiv Pujan aged about 38 years male was brought to casualty in unconscious state by Ct. Virender of P.S. Kirti Nagar. He further deposed that the said patient was examined by him vide Emergency No.105488 and after examination patient was declared brought dead at casualty at around 01:55 pm and then within ½ hour, body was packed and sent to mortuary. His observations are from point A to A1 and his opinion at point B on the MLC which is Ex.PW18/A bearing his signature at point X. Crossexamination of this witness is nil despite opportunity given.
(28) PW19, Dharmender Pandey deposed that he has a shop of videography/photography in the name of Pandey Studio at Shop No. K250, Chuna Bhatti, Kirti Nagar, Delhi and on 03.05.2014, on the direction of the IO, he joined proceedings and conducted the videography of the spot situated at A85, Lakkad Mandi, Kirti Nagar. He further deposed that IO had recorded his statement in this regard.
This witness brought the original cassette of the video recording, two copies of the same in the form of CDs and 11 digital photographs of the spot. The cassette is Ex.PW19/A. CDs are Ex.PW 19/B & Ex.PW19/C. Photographs are Ex.PW19/D to Ex.PW19/N. During crossexamination PW19 deposed that he is not having any FIR No. 293/2014 PS Kirti Nagar Page no. 26 of 74 degree/certificate in videography. This witness denied the suggestion that he is not having any knowledge about the photography or that he is deposing falsely. Nothing material has come out during his cross examination.
(29) PW20, H. Ct. Anil Pandey was examined in chief partly and his further chief examination was deferred on request of Ld. Substitute Addl. P.P. for the state and this witness was subsequently not examined on behalf of state and his chief examination has not been completed and, therefore, his testimony cannot be considered in evidence.
(30) PW21, Ali Sher deposed that he do not know anything about this case.
Ld. Addl.P.P. for the State sought permission of the court to crossexamine this witness as he was resiling from his earlier statement recorded u/s 161 Cr.P.C. Same was heard and allowed.
During crossexamination by Ld. Addl. P.P. for the State this witness deposed that he had studied upto 5 th standard and he had been learning work of carpenter for the last 89 years. He further deposed that 45 years back he was learning aforesaid work from Nazarul Hassan. This witness correctly identified the accused Nazarul Hassan in the court. He further deposed that he was residing in Lakkad Mandi, Kirti Nagar and at that time he was using a mobile. He again stated that he was not having mobile at that time. He deposed that he do not remember date, month and year when he was called by the police at FIR No. 293/2014 PS Kirti Nagar Page no. 27 of 74 PS Kirti Nagar. He also deposed that police officials had asked about his address. He admitted that on 24.11.2014, he stated to the IO that he was learning the work of carpenter at BBlock, Lakkad Mandi, Kirti Nagar, Delhi. He deposed that he also stated to the IO that he was learning the aforesaid work in B100, Lakkar Mandi. He denied the suggestion that he stated to the IO that Faqir Ali was his friend and he had taken a SIM from him for his use as he was not having address proof of Delhi or that Faqir Ali had given mobile SIM No.9891354657 to him. (Confronted with statement Mark PW21/1 from portion A to A, where it is recorded so). He admitted that he stated to the IO that earlier he was learning work from Nazarul Ali at A85 and in between he had gone to his village. He denied the suggestion that he had kept the aforesaid mobile SIM in the draw of table or that the same fact was known to Nazarul (Confronted with statement Mark PW21/1 from portion B to B, where it recorded so). He denied the suggestion that he stated to the IO that when he returned to Delhi, he came to know that Nazarul was confined in jail (Confronted with statement Mark PW21/1 from portion C to C, where it is recorded so). He denied the suggestion that he stated to the IO that in his absence accused Nazarul Ali had used his aforesaid SIM or that his statement was read over to him (Confronted with statement Mark PW21/1 from portion D to D, where it is recorded so).
He denied the suggestion that he is deposing falsely as he has been won over by the accused persons. Crossexamination of this witness is nil despite opportunity given.
FIR No. 293/2014 PS Kirti Nagar Page no. 28 of 74 (31) PW22, Fakir Ali deposed that he is a carpenter and do not
know about this case. He further deposed that he has not given any statement to the police. He further deposed that there was a SIM pertaining to Airtel in his name and he do not remember the number of that SIM. He further deposed that he had given said SIM in the year 2013 to 45 boys including Ali Sher, who were working with him. He further deposed that he had given that SIM to them for use as they were not having ID proof to obtain SIM in their own name(s).
Ld. Addl.P.P. for the State sought permission of the court to crossexamine this witness as he was resiling from his earlier statement recorded u/s 161 Cr.P.C. Same was heard and allowed.
During crossexamination this witness denied the suggestion that he stated to the police that he had taken mobile SIM No.9891354657 in his name and handed over the same to Ali Sher S/o Sattar. (Confronted with portion A to A of statement Mark PW22/1 where it is recorded so). He denied the suggestion that he stated to the IO that on 23.11.2014 Ali Sher was working with Nazarul Ali at Lakkad Mandi or that the IO recorded his statement. (Confronted with portion B to B of statement Mark PW22/1 where it is recorded so). He denied the suggestion that he is not disclosing the complete facts as he has been won over by the accused persons. Crossexamination of this witness on behalf of accused persons is nil despite opportunity given.
(32) PW23, ASI Padam Singh deposed that on 02.05.2014 he was posted at PS Kirti Nagar as Head Constable and was working as MHC(M) and on that day Insp. B.M. Bahuguna deposited case property FIR No. 293/2014 PS Kirti Nagar Page no. 29 of 74 of the present case alongwith copy of seizure memo. He further deposed that he had deposited one sealed bag sealed with the seal of "BMB" containing an old dirty bedsheet yellow brownish colour and a pair of hawai chapal. He deposed that he made relevant entry at serial No.2234/14 in Register No.19 (running into two pages) which is Ex.PW23/A (OSR).
He further deposed that on 03.05.2014 Insp. B.M. Bahuguna deposited case property of the present case along with copy of seizure memo. He further deposed that he had deposited one pullanda containing wooden plank (fatti) sealed with the seal of "BMB" and articles recovered during personal search of accused Nazarul Ali. He further deposed that he made relevant entry at serial No.2236/14 in Register No.19 (running into two pages) which is Ex.PW23/B (OSR).
He further deposed that on 07.05.2014 Insp. B.M. Bahuguna deposited case property of the present case along with copy of seizure memos. He further deposed that he had deposited (1) one sealed plastic polythene sealed with the seal of "DFMT DDU Hospital"
containing viscera three glass bottles, (2) one sealed plastic polythene sealed with the seal of "DFMT DDU Hospital" containing blood of the deceased and (3) one sealed envelope sealed with the seal of "DFMT DDU Hospital" containing blood gauge and sample seal of "DFMT DDU Hospital". He further deposed that he had also deposited one sealed plastic polythene sealed with the seal of "DFMT DDU Hospital"
containing clothes of deceased Hari Shankar Sharma alongwith sample seal of "DFMT DDU Hospital". He further deposed that he made relevant entry at serial No.2239/14 in Register No.19 (running into FIR No. 293/2014 PS Kirti Nagar Page no. 30 of 74 three pages) which is Ex.PW23/C (OSR).
PW23 further deposed that on 23.05.2014 as per direction of IO, he had handed over one sealed pullanda containing viscera of deceased and another sealed pullanda containing blood sample alongwith sample seal to Ct. Naresh vide R.C. No.40/21/14 for depositing the same at FSL Rohini. Copy of the same is Ex.PW23/D (OSR) bearing his signature at point A. He further deposed that after depositing the case property at FSL Rohini, Ct. Naresh handed over acknowledgement receipt and copy of R.C. to him. Copy of acknowledgement receipt is Ex.PW23/E (OSR).
PW23 further deposed that on 30.05.2014 as per direction of IO, he had handed over one sealed envelope containing blood gauge and sample seal to Ct. Naresh vide R.C. No.43/21/14 for depositing the same at FSL Rohini and the copy of same is Ex.PW23/F (OSR) and after depositing the case property at FSL Rohini, Ct. Naresh handed over acknowledgement receipt and copy of R.C. to him. Copy of acknowledgement receipt is Ex.PW23/G (OSR). He further deposed that he had made relevant entries for sending the case property to FSL Rohini in Register No.19. He further deposed that the case property remained intact and not tampered with in any manner till it remained in his custody.
During the crossexamination by Ld. Counsel for accused Abdul Samad @ Guddu, PW23 deposed that he do not remember the time of deposition of case property by the IO on the aforesaid dates. He further deposed that he do not remember whether his statement was recorded by the IO or not. His crossexamination by remaining two FIR No. 293/2014 PS Kirti Nagar Page no. 31 of 74 accused persons is NIL despite opportunity given.
(33) PW24, Ct. Vikas Singh deposed that on 02.05.2014 he was posted at PS Kirti Nagar as Constable and on that day he was having duty as beat officer in the area of Lakkad Mandi and on that day at about 10:00 am he was present in the area of beat when he received information that people were gathering near A85, Lakkad Mandi and he reached at the spot and found that SI Harbajan alongwith staff was already present. He further deposed that he also saw that one dead body was lying in front of A85, Lakkad Mandi near the electric pole. SI Harbajan prepared a tehrir and handed over the same to him for registration of FIR at about 12:55 pm. He further deposed that he went to the PS for registration of FIR and handed over the same to Duty Officer and FIR was registered u/s 302/34 IPC. He further deposed that Duty Officer handed over copy of FIR and original tehrir to him and he went back at the spot at about 02:15 pm and he handed over the same to Insp. B.M. Bahuguna who was already present at the spot. He further deposed that his statement was recorded by IO.
During crossexamination this witness denied the suggestion that he never joined the investigation or that he is deposing falsely. This witness further deposed during crossexamination that there was a sweet shop on the corner of A85 but there was no CCTV camera installed outside said shop. PW24 denied the suggestion that CCTV camera was installed outside the said shop.
(34) PW25, Ajit Singh, Alternate Nodal Officer, Idea Cellular FIR No. 293/2014 PS Kirti Nagar Page no. 32 of 74
Ltd. deposed that he is having original customer application form of mobile No.9891354657 and as per record the said mobile phone number prepaid connection was issued to one Faqir Ali S/o Sahid Ali, R/o C42, Sri Chand Park, ABlock, Matiyala, Delhi110059, on the basis of his driving license. He further deposed that attested photocopy of the customer application form which bears the photograph of Faqir Ali is Ex.PW25/A (OSR) which bears signature of the customer Faquir Ali at point A and his initial alongwith seal at point C. He deposed that the photocopy of the driving license attached with the customer application form is Mark PW25/A which is bearing his initial and seal at point A. He deposed that Call Detail Record of the above mentioned mobile phone for the period of 01.05.2014 to 03.05.2014 is Ex.PW 25/B (2 pages) bearing his initial and seal at points A. PW25 further deposed that as per record, mobile No.9718207732 prepaid connection was issued to one Jalees which remained active since 30.08.2010 to 19.09.2014. He deposed that original CAF was destroyed in a fire that broke out in the warehouse of Idea Cellular Limited situated at D29, Sec.63, NOIDA, U.P. on 22.09.2017. He further deposed that the certified copy of the information given to the SHO, Thana PhaseIII, NOIDA, Gautam Budh Nagar, U.P. is marked as Mark PW25/2 bearing his initial and seal at point A & B. He further deposed that Call Detail Record of the abovesaid mobile phone for the period of 01.05.2014 to 03.05.2014 which is Ex.PW25/C (2 pages) bears his initial and seal at points A. PW25 further deposed that he had issued certificate u/s 65B Indian Evidence Act in respect of the CDR of the aforesaid mobile FIR No. 293/2014 PS Kirti Nagar Page no. 33 of 74 phone numbers. The said certificate is Ex.PW25/D bearing his initial and seal at point A. He deposed that it was issued on the same day when the CDR of the aforesaid mobile phone was taken out and printed out from his computer system.
During crossexamination conducted on behalf of accused persons this witness admitted that his statement was not recorded by the IO. The witness volunteered that he had given a notice to him and he had provided the requisite information and document. The witness denied the suggestion that the certificate issued by him u/s 65B Indian Evidence Act is not proper as he is not authorized to issue the said certificate.
(35) PW26, Amit Madan deposed that he is residing in Mansarovar Garden, New Delhi and he is owner of A85, Lakkad Mandi, Kirti Nagar which was built upto 3rd floor. He further deposed that prior to the incident, he had rented out ground floor to Mahesh who was having a sweet shop on the ground floor. He further deposed that he had rented out part of the first floor to one person namely Hassan who was having business of wood work/carpenter and at that time he (i.e. witness) was also having his office on the first floor of the said building. He further deposed that he had rented the second floor having four rooms to four different persons, who were contractor/carpenter. The name of the aforesaid four persons are Arif, Hansmukh, Lalbatti and Ali. He deposed that he had rented out 3 rd floor to three different persons namely Guddu, Sahid and Nasruddin, who used to do their separate wood work/carpenter work.
FIR No. 293/2014 PS Kirti Nagar Page no. 34 of 74 PW26, further deposed that on 02.05.2014, he had reached at A85, Lakkad Mandi at about 10:30 am - 11:00 am and he saw that many public persons had gathered over there and police officials were also present there and none of the aforesaid tenants were present in the aforesaid building. He further deposed that he had come to know that some mishappening had occurred with some unknown person who came from outside and he was not aware about his name. He further deposed that he had tried to contact his tenants but apart from Sahid and Faheem, he was not able to contact any other tenant. He deposed that Faheem used to work for Hassan. He deposed that Sahid and Faheem met him and they did not talk to him. He deposed that he introduced them to police officials. Accused Guddu, Ali and Lalbatti who were present in court were correctly identified by this witness.
Ld. Addl. P.P. for the State sought permission of the court to crossexamine the witness as he was resiling from his earlier statement recorded u/s 161 Cr.P.C. Same was heard and allowed. In said crossexamination PW26 deposed that he do not remember if the name of person who had died due to beating was Hari Shankar. He denied the suggestion that he is deliberately not stating about the aforesaid fact. He denied the suggestion that he had stated to the IO that he was not acquainted with Rafique as he was not his tenant or that he was aged about 1516 years and was learning work under Nazarul @ Ali. (Confronted with portion A to A of statement Mark PW26/A, where it is recorded so).
During crossexamination this witness deposed that no rent agreement was executed with the above referred tenants. He further FIR No. 293/2014 PS Kirti Nagar Page no. 35 of 74 deposed that he is not having any personal knowledge about the alleged incident.
(36) PW27, Ms. Manisha Upadhyaya, Assistant Director (Biology) at FSL Rohini, New Delhi deposed that on 30.05.2014 she was posted at FSL, Rohini as Senior Scientific Officer (Biology) and on that day one duly sealed parcel was received at the office of FSL, Rohini in connection with case FIR No.293/14 dated 02.05.2014 u/s 302/34 IPC PS Kirti Nagar. She further deposed that the description of the aforesaid parcel is mentioned in her report Ex.PW27/A bearing her signature at point A and on biological examination blood was detected on exhibit '1'. She further deposed that on serological analysis human blood of group 'O' was found on exhibit '1' and her serological report is Ex.PW27/B bearing her signature at point A. She further deposed that the remnants of the abovesaid exhibits after her examination were resealed with the seal of "FSL MU DELHI". She further deposed that she had prepared the aforesaid reports on 28.08.2014.
In the crossexamination on behalf of accused Abdul Samad @ Guddu, this witness deposed that she cannot say whether the abovesaid blood group was 'O positive' or 'O negative'.
Crossexamination of this witness on behalf of accused Nazarul Hassan @ Ali and accused Jalees Ahmad @ Lalbatti is nil despite opportunity given.
(37) PW28, Ct. Mahavir deposed that on 17.10.2014, he was posted at PS Kirti Nagar as constable and on that day he joined the FIR No. 293/2014 PS Kirti Nagar Page no. 36 of 74 investigation in this case with IO and had come to Tis Hazari Court. He further deposed that after obtaining permission from the concerned Ld. M.M., IO arrested accused Jalees Ahmed in this case and prepared arrest memo Ex.PW28/A bearing his signature at point A. IO obtained one day PC remand of the accused and after that accused had taken them to the place of incident at A85, Second Floor, Lakkad Mandi, Kirti Nagar, Delhi and pointed out the place where he had beaten the deceased Hari Shankar Sharma. He further deposed that the accused also pointed out the place that was service road where the accused had left the deceased after his beating. He further deposed that IO prepared the pointing out memo in this regard which is Ex.PW28/B bearing his signature at point A. He deposed that IO recorded his statement.
During crossexamination the present witness interalia denied the suggestion that he never visited the spot at any point of time. He further denied the suggestion that he never gave any statement to the IO or that his statement was recorded by the IO on his own while sitting in the police station. He further deposed during crossexamination that IO did not record the statement of any person from the said spot in his presence. He further deposed that IO did not make any enquiry from any public person from the said spot in his presence. He denied the suggestion that he is deposing falsely at the instance of IO.
(38) PW29, M.L. Meena deposed that he is working as Senior Scientific Officer (Chemistry) FSL Rohini, Delhi since 2011 and he has 15 years of experience for examination of toxicology case and further deposed that on 23.05.2014 two sealed polythene parcels each duly FIR No. 293/2014 PS Kirti Nagar Page no. 37 of 74 sealed with the seal of "DFMT DDU Hospital" in the laboratory and same was marked to him for chemical examination. He deposed that the seals on the parcels were found intact and tallied with specimen seal impression forwarded. He further deposed that he opened sealed parcels and marked as exhibit '1A', '1B', '1C' and '2'. He deposed that on chemical, Microscopic, TLC & GCHS examination, (i) Exhibits '1A', '1B', '1C' were found to contain Ethyl Alcohol. (ii) exhibit '2' was found to contain Ethyl Alcohol 235.9mg/100ml of blood. He deposed that his detailed report in this regard is Ex.PW29/A (back to back) which bears his signature at point A. He deposed that after examination, the exhibits were again sealed with the seal of 'MLM FSL Delhi' and returned to the concerned forwarding authority.
During crossexamination conducted on behalf of accused persons this witness deposed that he mentioned quantitation of Ethyl Alcohol only in blood and further deposed that he can not tell the effect of the Ethyl Alcohol on the body. The witness volunteered that the same can be opined by the doctor.
(39) PW30, Insp. B.M. Bahuguna deposed that on 02.05.2014 he was posted at PS Kirti Nagar as an Inspector/ATO and on that day, an information regarding dead body was received vide DD No.12 A at PS Kirti Nagar which was marked to SI Harbhajan for investigation which is Mark PW30/A. He further deposed that SI Harbhajan reached at the spot and found that the said information was correct, therefore, he alongwith other staff reached at the place of incident i.e. in front of A 85, Lakkar Mandi, Kirti Nagar, Delhi and crime team was called at the FIR No. 293/2014 PS Kirti Nagar Page no. 38 of 74 spot and crime team inspected the spot and photographs were clicked by the photographer of the crime team. He deposed that deceased was identified as Hari Shankar s/o Sh. Shiv Pujan by the real brother of deceased. He further deposed that Senior officers also visited the spot and dead body was sent to DDU hospital by SI Harbhajan through Ct Virender. He deposed that statement of eye witness namely Mahesh Kumar Yadav was recorded by SI Harbhajan which is already Ex PW12/A, bearing attestation of SI Harbhajan at point B. He deposed that on the basis of the aforesaid statement, SI Harbhajan prepared rukka Ex PW30/A, bearing his signatures at point A. He deposed that the aforesaid rukka was sent to PS through Ct Vikas for registration of FIR and after registration of FIR, Ct Vikas returned to spot with copy of FIR and original rukka and handed over the same to him as further investigation of the present case was marked to him. He further deposed that as per his knowledge, said SI Harbhajan has expired on 28/11/2018 and he can identify his handwriting and signatures as SI Harbhajan had worked with him during the course of their duties and he had seen him writing and signing.
He further deposed that as per the direction of senior officers, SI Harbhajan was deputed for conducting the inquest proceedings and he prepared the death report, which is Ex PW30/B, bearing his signatures at point A and he got conducted the postmortem and handed over the dead body to its relatives for last rites vide memo Ex PW4/B, bearing his signatures at point X. During further examination in chief, PW30 Insp. B.M. Bahuguna deposed that on 02.05.2014 further investigation of the FIR No. 293/2014 PS Kirti Nagar Page no. 39 of 74 present case was handed over to him and accordingly, he examined the complainant and recorded his statement u/s 161 Cr.P.C and he prepared site plan at the instance of complainant, which is Ex PW30/C, bearing his signatures at point A. He deposed that thereafter, he examined PW Saroj Yadav and recorded his statement. He deposed that he had prepared site plan of the place of incident at the instance of Saroj Yadav, which is Ex PW30/D, bearing his signatures at point A. He deposed that he also recorded statements of witnesses namely Sayeed and Fayeem.
He further deposed that he had seized one pair of hawai sleepers of grey colour, and one old dirty bedsheet of yellow brownish colour, which were lying near the dead body, vide seizure memo Ex PW30/E bearing his signatures at point A. He deposed that he had seized the aforesaid articles after keeping them inside the bag and sealing the same with the seal of BMB. He further deposed that efforts were made to search the accused persons but in vain. He deposed that thereafter, they went to PS and he deposited the case property in the malkhana.
He further deposed that on 03/05/2014, he alongwith HC Anil Pandey went for search of accused persons and they reached at B Block, Lakkar Mandi, Kirti Nagar, in pursuance of secret information and there they saw that accused Nazrul Hassan @ Ali was present near B100, Workshop and he interrogated accused and he was arrested in the present case vide arrest memo already Ex PW20/A bearing his signatures at point X. He deposed that personal search of accused was conducted vide memo already Ex PW20/B bearing his signatures at FIR No. 293/2014 PS Kirti Nagar Page no. 40 of 74 point X. Accused Nazrul Hassan @ Ali was correctly identified by this witness who was present in the court.
He further deposed that accused Nazrul Hassan got recovered one wooden stick (fatti) from the place of incident i.e., A85, Second Floor, Lakkar Mandi, Kirti Nagar, Delhi. He deposed that the aforesaid wooden stick was converted into pullanda with the help of white cloth and sealed it with the seal of BMB and same was seized vide seizure memo Ex PW20/C bearing his signatures at point X. He further deposed that accused was got medically examined and was sent to lock up and case property was deposited in the Malkhana. He further deposed that he recorded statement of HC Anil Pandey. He further deposed that on the next day accused was produced before the court concerned of Ld. MM and his two days PC remand was obtained. He further deposed that efforts were made to search the accused persons namely Rafeeq and Jalees Ahmad @ Lalbatti but in vain. He deposed that thereafter accused Nazarul was produced before the concerned MM and was sent to JC.
PW 30 Insp. B.M. Bahuguna further deposed that on 07.05.2014, he alongwith Ct Naresh went to the mortuary of DDU Hospital and he met the concerned Autopsy Surgeon. He deposed that he produced two sealed plastic polythenes and one sealed envelope containing viscera and blood of deceased alongwith sample seal. He deposed that he seized the aforesaid articles vide seizure memo Ex PW30/F, bearing his signatures at point A. He further deposed that the concerned doctor also handed over to him one sealed plastic polythene containing clothes of deceased alongwith sample seal and he seized the FIR No. 293/2014 PS Kirti Nagar Page no. 41 of 74 same vide seizure memo Ex PW30/G, bearing his signatures at point A. He deposed that he had collected the PM report.
He further deposed that on 13.05.2014 he got inspected the spot by Sh. Om Prakash, Assistant Draftsman and prepared scaled site plan and handed over the same to him on 09.06.2014. He deposed that he had recorded his statement u/s 161 Cr.P.C.
He further deposed that exhibits were sent to FSL Rohini through Ct Naresh on 23.05.2014 and 30.05.2014.
He further deposed that on 25.05.2014 he had recorded statements u/s 161 Cr.P.C of brothers of deceased, namely Dinesh Sharma and Rajesh Sharma.
He further deposed that during the investigation, accused Nazarul had produced his school leaving certificate claiming himself to be juvenile and the said certificate was verified and report was submitted in the concerned court.
He further deposed that on 18.07.2014, father of accused Abdul Samad @ Guddu produced him in PS Kirti Nagar and produced copy of Parivar register claiming that accused Abdul Samad was juvenile which is Mark PW30/A1. He deposed that accused was apprehended as per apprehension memo Ex PW30/H bearing his signatures at point A. He deposed that intimation about apprehension of accused Abdul Samad was given to his father vide memo Ex PW30/I bearing his signatures at point A. He deposed that social report of accused Abdul was prepared by SI Kuldeep, JWO which is Ex PW30/J, bearing his signatures at point A. He deposed that version of child was recorded by him vide memo Ex PW30/K bearing his signatures at point FIR No. 293/2014 PS Kirti Nagar Page no. 42 of 74 A. He further deposed that accused Abdul Samad was produced before Juvenile Justice BoardI. He further deposed that he moved an application for ossification test of accused Abdul Samad before JJBI. Accused Abdul Samad @ Guddu who was present in the court was correctly identified by this witness.
During further examination in chief on 15.05.2019, PW30 Insp. B.M. Bahuguna deposed that Ossification test of accused Abdul Samad was got conducted by DDU Hospital Board and Board gave opinion that his age was between 22 to 25 years. The said report is Mark PW30/A, running into three pages. He deposed that he collected the said report and submitted the same before JJBI vide application on 06.08.2014, which is Ex PW30/L. He deposed that other documents submitted by accused before JJB were also verified by him.
He further deposed that on 30.07.2014, he had obtained NBWs against accused Jalees Ahmad @ Lalbatti from the concerned court.
He further deposed that on 31.07.2014, he had submitted the charge sheet pertaining to accused Abdul Samad at JJBI. He further deposed that on 01.08.2014, he had filed the charge sheet in respect of accused Nazrul Hassan @ Ali before court concerned.
He further deposed that accused Jaleesh Ahmad could not be arrested as he was absconding, so process u/s 82 Cr.P.C was got issued from the Hon'ble court.
FIR No. 293/2014 PS Kirti Nagar Page no. 43 of 74 He further deposed that on 17.10.2014, accused Jaleesh Ahmad surrendered before court concerned and he obtained permission to interrogate the accused and accused was interrogated and arrested vide memo already Ex. PW28/A, bearing his signatures at point X. He deposed that one day PC remand of accused was obtained from the court concerned. He deposed that accused had pointed towards the place of incident vide memo already Ex.PW28/B, bearing his signatures at point X. He deposed that he had recorded the statement of constable Mahavir, who was with him during the said proceeding.
He further deposed that he had obtained the CDRs and ownership details of mobile phone nos. 9718207732 and 9891354657. He deposed that the name of subscriber of mobile phone no. 9891354657 was found in the name of Faqir Ali and the name of subscriber of mobile phone no. 9718207732 was found in the name of Jalees. He deposed that he examined Faqir Ali who stated that the said SIM issued in his name was being used by one Ali Sher. He deposed that he also examined said Ali Sher, who stated that the above said SIM was used by accused Nazrul Ali. He further deposed that the CDR of aforesaid mobile phone numbers were analysed and it was found that accused Nazrul Ali called accused Jalees Ahmad at the spot on the date of incident and further deposed that the location of the aforesaid number were also found at the place of incident at the relevant period of time. He deposed that he had also recorded statement of owner namely Amit Madan, of the building where accused persons were running workshop. He deposed that he had collected the FSL result and thereafter he had submitted the supplementary charge sheet in respect of FIR No. 293/2014 PS Kirti Nagar Page no. 44 of 74 accused Jalees Ahmad before court concerned. All the accused persons were correctly identified by this witness who were present in the court. He deposed that he can identify the case property if shown to him.
During testimony of PW30, MHC(M) produced one sealed pullanda bearing case particulars of the present case, duly sealed with the seal of DFMT DDU HOSPITAL alongwith one sample seal. Same was opened with the permission of the court. Out of that, one wooden stick was taken out and shown to the witness, who correctly identified the same. Same is Ex P1.
MHC(M) had also produced one polythene bag containing one black coloured mobile phone make CARBON having IMEI no. 911320651686121 and 911320651686139 having one Idea SIM bearing no. 89910430071310544619H1 and Rs 154/ in the denomination of one note of Rs 100/ and five notes of Rs 10/ each and two coins of Rs 2/ which were shown to the witness with the permission of the court, who correctly identified the same. Same are collectively Ex P2.
MHC(M) produced another sealed pullanda bearing case particulars of the present case, duly sealed with the seal of DFMT DDU HOSPITAL. Same was opened with the permission of the court. Out of that, one pant, shirt, vest and underwear were taken out and shown to the witness, who correctly identified the same. Same are collectively Ex P3.
MHC(M) produced another sealed pullanda bearing case particulars of the present case, duly sealed with the seal of BMB. Same was opened with the permission of the court. Out of that, one bed sheet FIR No. 293/2014 PS Kirti Nagar Page no. 45 of 74 and pair of sleepers were taken out and shown to the witness, who correctly identified the same. Same are collectively Ex P4.
During crossexamination by Counsel for accused Abdul Samad, PW30 Insp. B.M. Bahuguna deposed that investigation of the present case was marked to him on 02.05.2014 and further deposed that he reached at the spot at about 10.35 AM and he came to the police station from the spot at about 56 PM. He deposed that he remained at the spot for about 7 to 8 hours and he checked the CCTV footage of nearby cameras but relevant footage was not found. He deposed that there was no camera in the close vicinity of the spot. He deposed that beat staff was present at the spot in the night time to maintain law and order. He deposed that so far as he recollect, Const. Vikas, Const. Virender and H.C Anil were present. He deposed that he personally did not accompany dead body to the mortuary/hospital and when he reached at the spot, dead body was lying over there and dead body was removed from spot at about 11.30 AM12 noon.
He deposed that the owner of the property in question, namely Amit was present at the spot and he had made enquiries from him but he did not record his statement. He deposed that he had recorded the statement of the complainant, Mahesh Kumar and Saroj Yadav only, at the spot. He deposed that he also recorded statement of Sayeed and Fayeem, SI Harbhajan, Const. Virender, Const. Vikas and H.C Dhanesh only.
Ld. Counsel for accused had put a question to this witness as to whether he had enquired from the owner of the property in question about the number of working employees and about the number FIR No. 293/2014 PS Kirti Nagar Page no. 46 of 74 of tenants or not. This witness answered that he had enquired from him about the employees and tenants in the building and the owner of the property had informed him that he had no employee working in the said building. He deposed that the owner told him that the ground floor of the said building was rented out to Mahesh who was running Krishna Sweets on that floor. He deposed that he had rented out portion of first Floor to Mohd. Hassan and second floor was rented out to four tenants and third floor of the said building was rented out to three other tenants.
Ld. Counsel for accused had also put a question to this witness that for how much time the police officials related to this case remained at the spot to which the witness answered that the police officials remained at the spot for about 34 days from the date of incident and he do not recollect the exact time. He deposed that the spot remained safeguarded for the abovesaid period.
He deposed that photographs of the spot were taken by crime team on the same day and the videography was done by private videographer on the next day. He deposed that he had not sent the wooden fatti for lifting the finger print. He volunteered that it was not required as the spot was visited by crime team having finger print proficient with them. He deposed that he had also not sent the bedsheet (chaddar) to FSL for forensic investigation. He deposed that there was no blood on the said bed sheet (chaddar) and deposed that blood was not oozing from the dead body and there was no blood stains on the dead body. He volunteered that there was bruises on the body of deceased. He deposed that he had not measured the distance between the property in question and the pole near which the dead body was FIR No. 293/2014 PS Kirti Nagar Page no. 47 of 74 lying. He deposed that chappals found near the dead body were identified by brother of deceased. He deposed that he had not measured distance between dead body and position of chappals. He deposed that he did not measure the length of the wooden fatti and deposed that it was approximately about 2 feet. He further deposed that he is not aware if any complaint against deceased was filed in the police station, Kirti Nagar or not. He deposed that the aforesaid fatti was recovered from second floor of the property in question on 03.05.2014. He deposed that there was wooden workshop where several pieces of wood including fattis were lying and he do not recollect size of the portion of the said floor from where the fatti in question was recovered. He volunteered that the said floor is divided into four portions. He deposed that the said floor was divided into portion with the help of wooden partition and walls and he do not remember number of walls. He deposed that he do not remember how many doors were there inside the said floor or that how many doors were there in the said building. He deposed that he do not remember the area of the plot of said building or as to what other articles were lying on the said floor or whether machines were lying on the said floor. He deposed that he had checked the whole building during the investigation and found that the wooden works were going on at the first, second and third floor of the said building and there was some furniture on the floor in question. He deposed that he do not remember the description of said furniture and deposed that some portion of said floor in property in question were open and some were covered. He deposed that the portion was covered with wall/wooden partition.
FIR No. 293/2014 PS Kirti Nagar Page no. 48 of 74 He further deposed that the owner had not provided any rent agreement/rent receipt regarding said building. He deposed that the crime team had left the spot after inspection at about 1111.30 AM. He deposed that Panchnama was not prepared by him and same was prepared by SI Harbhajan. He deposed that Panchnama was not prepared when he reached the spot. He deposed that there were bruises all over the body of deceased and he had checked the dead body while opening the clothes.
During further cross examination, this witness deposed that the shops of the market were open at the time when he reached the spot and the shop at the ground floor of A85 Lakkar mandi was open at that time and the said shop was furniture shop. He deposed that other shops were closed in the said building and he do not know as to how many shops were there in the said building. He volunteered that it was built up to third floor. He deposed that he do not know the name of the person who was present in the said furniture shop which was open at that time, from whom he had made enquiries. He deposed that he did not record any statement of said person and he met only the owner namely Amit Madan on that day and he had not recorded the statement of Amit Madan on that day.
He further deposed that he had made enquiries from the family members of deceased on 25.05.2014 and recorded their statements on that day.
He denied the suggestion that he had not conducted the investigation of the present case in fair manner or that accused persons were falsely implicated in the present case. He deposed that accused FIR No. 293/2014 PS Kirti Nagar Page no. 49 of 74 namely Abdul Samad was not found present on that day on the aforesaid building. He denied the suggestion that he is deposing falsely.
During cross examination by Ld. Counsel for accused Jalees Ahmed @ Lalbatti, the witness admitted that 3035 public persons were present at the spot when he reached there. He deposed that he had interrogated some of the aforesaid public persons but he do not remember their names. He further deposed that he remained at the spot till 9 pm on 02.05.2014 and on that day he had recorded number of statements at the spot. He deposed that when he reached at the spot, the other tenant of the second floor of the said building was also not present. He deposed that tenants of the third floor were also not present at that time. He deposed that tenant of second floor met him after 23 days and he had made enquiries from them but not recorded their statement. He deposed that scaled site plan was prepared at his instance.
He further deposed that the distance between the place where dead body was lying, and the said building, is about 2022 feet. He admitted that in the scaled site plan, the distance between A85 and A10 has not been shown. He deposed that the distance between A10 and A85 is not 818 metres. He denied the suggestion that the scaled site plan is not as per the actual site.
He denied the suggestion that the incident did not take place in A85. He denied the suggestion that deceased had sustained injuries in the quarrel with his brother or that deceased was under the influence of liquor. He denied the suggestion that he had not investigated the present case for all possible angles, otherwise actual culprits would have been captured. He denied the suggestion that FIR No. 293/2014 PS Kirti Nagar Page no. 50 of 74 accused Jalees Ahmed has been falsely implicated in the present case as he was running a workshop at A85. He denied the suggestion that he is deposing falsely.
During crossexamination by Sh. Sarvesh Kumar, Ld. Counsel for accused Nazarul Hassan, this witness deposed that he had recorded the statement of Saroj. He deposed that he had inspected the bathroom/toilet which was stated by Saroj in his statement. He deposed that he had shown the same in the site plan and he had also made enquiries from other witnesses regarding said bathroom/toilet. He denied the suggestion that there was no bathroom /toilet on the second floor of building A85. He deposed that one bedsheet was found lying near the dead body and water was present on the head of the deceased. He deposed that he had made enquiries from Mahesh and other witnesses regarding bedsheet and water but no one was in the position to tell and he had mentioned the said fact in the charge sheet. He denied the suggestion that nothing as such is mentioned in the charge sheet.
He further deposed that at the time of recovery of wooden stick, no public witness was called as no one was present.
He deposed that the said building is partly open and partly closed by the sides. He deposed that he had taken only the recovered wooden stick to the doctor for taking subsequent opinion and he further deposed that he is not aware about the owner of the building B 100 Lakkarmandi. He volunteered that at the said building, shop of brother of accused Nazrul was there. He deposed that no such document in regard of the said shop was taken.
He further deposed that he reached at the said building at FIR No. 293/2014 PS Kirti Nagar Page no. 51 of 74 about 33.15 pm and at that time HC Anil Pandey was with him. He deposed that he cannot tell from which floor of the said building, accused Nazrul was arrested and deposed that when he reached the said building, some workers were present at the shop of brother of accused Nazrul. He deposed that however accused Nazrul and his brother were found present at the said shop. He denied the suggestion that accused Nazrul was not arrested from the premises of the said building. He denied the suggestion that accused Nazrul came to meet him in the police station or that he falsely implicated him in the present case. He denied the suggestion that signatures of HC Anil Pandey were different in arrest memo and personal search memo of accused Nazrul.
He further deposed that he had not taken the subsequent opinion from the concerned doctor regarding the effect of ethyl alcohol in the blood of the deceased. He volunteered that the cause of death was already mentioned in the postmortem report. He deposed that he had not received any complaint regarding theft of mobile phone of accused Nazrul. He deposed that he had interrogated accused Nazrul regarding the theft of his mobile phone but did not give the details of the said mobile phone. He admitted that this fact is not mentioned in the charge sheet. He denied the suggestion that no such mobile phone of accused Nazrul was stolen previously or that he had prepared a false story. He admitted that there is no document of ownership of the said mobile phone no. 9891354657 in the name of accused Nazrul. He volunteered that the SIM of the said mobile was in the name of one Fakeer Ali who handed over the same to Ali Sher, who in turn handed over the same to accused Nazrul Ali, from whom the same was recovered. He deposed FIR No. 293/2014 PS Kirti Nagar Page no. 52 of 74 that he had not made enquiries from any other number which was appearing in the CDR of aforesaid mobile phone number to confirm as to whether accused Nazrul was using the said SIM. He deposed that at the time of recovery of said SIM, he had not joined any worker who was present at the said building. He deposed that at the time of filing of charge sheet, location chart was not filed by him. He volunteered that same is produced by the nodal officer of the service provider at the time of evidence.
He deposed that at that time, there was no CCTV installed near the place of incident. He denied the suggestion that he had not done the investigation properly or that accused persons have been falsely implicated or that he is deposing falsely.
No other PW was examined on behalf of State and subsequently PE was closed. After closing of PE the statement of accused persons u/s 313 Cr.P.C. was recorded and all the incriminating evidences appearing in the evidence against the accused persons were put to the accused persons and their explanation was sought. The accused persons opted to lead defence evidence and only one DW has been examined which is DW1 Sh. Zubair. Subsequently, DE was closed.
(40) DW1 Sh. Zubair (for accused Abdul Samad) deposed that he is working at B124, Lakkad Mandi, Kirti Nagar, New Delhi as carpenter and on 01.05.2014, he was going for offering Namaz at about 01:15 pm at Jumma Park (Lakkad Mandi) from the aforesaid place and when he reached near Jumma Park, he saw that many public persons had FIR No. 293/2014 PS Kirti Nagar Page no. 53 of 74 gathered over there and two persons were quarreling and they separated them and pacified them and on asking, one of them told that the other one was demanding money for liquor as he was habitual drunkard and used to beat his family. He deposed that thereafter, they proceeded for Namaz. He further deposed that on the next day, he was coming from his residence to his aforesaid work place at about 09:45 am, when he was passing to A85, Lakkad Mandi, he noticed that many public persons had gathered over there and when he reached there, he saw that dead body was lying over there. He deposed that he recalls that dead body was of that person who was demanding money for purchase of liquor on the day before. He deposed that the person who was crying near the dead body of the same person from whom he was demanding money. He deposed that said person was saying that, "mera bhai maar diya" and thereafter, the public persons started exhorting, "sabko maaro" and thereafter, commotion took place and they fled from there.
During cross examination by Ld. Addl. P.P. for State, this witness deposed that his native village is Millak, District Rampur, U.P. and deposed that accused Abdul Samad is known to him 34 years prior to the incident and he had cordial relations with accused Abdul Samad.
He further deposed that he has no documentary proof regarding the fact that he was doing job at B124, Lakkar Mandi, Kirti Nagar, Delhi as a carpenter.
He further deposed that he has no personal knowledge about the present case except whatever he has stated in his examination in chief. He deposed that he had not informed to the police about the fact that on 01.05.2014 he was going for offering Namaz, the accused FIR No. 293/2014 PS Kirti Nagar Page no. 54 of 74 persons were quarreling.
He further deposed that he do not remember the date of Bakri Eid in the year 2014. He deposed that he came to the court to depose in the present matter on the request of parents of accused Abdul Samad as they are known to him. He denied the suggestion that he has presented a false story, concocted by accused Abdul Samad to mislead the court. He denied the suggestion that he is deposing falsely.
(41) Here it is observed that the case of the prosecution depends broadly on the following aspects: Testimony of eye witnesses.
First of all let the testimony of eye witnesses be discussed. During the course of trial, the prosecution has examined the following eye witnesses: PW3 Saroj Kumar Yadav: The relevant portion of the testimony of PW3 Saroj Kumar Yadav is as under: PW3 has deposed "that on 02.05.2014, he had gone to attend call of nature at around 6:45 a.m. at common toilet situated at second floor and he saw Guddu and Ali, both accused who were present in the court, who were present along with one more person and he had not seen the said other person prior to said date. He stated that he knew Guddu and Ali before hand since they had been working there in wooden work. He also deposed that after attending the call of nature he went downstairs and had seen nothing else. He also stated that police officials visited the FIR No. 293/2014 PS Kirti Nagar Page no. 55 of 74 building and made inquiries from him.
(42) Since PW3 has not supported the case of prosecution and was resiled from his previous statement made before the police, Ld. Addl. P.P. for the State sought permission of the court to crossexamine the witness and crossexamined the said witness in detail.
In the said crossexamination on behalf of state, PW3 deposed that IO made inquiries from him but his statement was not recorded. He admitted that he had stated that Nizarul @ Ali, Rafiq @ Rafi and Guddu Contractor had apprehended one person. He denied the suggestion that he stated to the police that aforesaid persons were making inquiries from that person about mobile. He denied the suggestion that Ali informed him that they apprehended that person while he was stealing mobile. He also denied the suggestion that aforesaid persons were beating that person with leg blows, fist flows and wooden plank mercilessly. He denied the suggestion that he stated to the police that about 9:15 a.m., accused Lal Batti, Nizarul @ Ali, Rafiq @ Rafi and Guddu Contractor brought that person down stairs and threw him on the road near electric pole or that thereafter they went away or that that person was not able to walk or that he was under the influence of liquor or that he was lying over there. He also denied the suggestion that somebody sprinkled water on the head of that person and he did not respond and after sometime he came to know that said person had expired. He also denied the suggestion that accused Lal Batti, Nizarul @ Ali, Rafiq @ Rafi and Guddu Contractor alongwith other workers who used to work at A85 had absconded. He denied the FIR No. 293/2014 PS Kirti Nagar Page no. 56 of 74 suggestion that name of deceased was disclosed as Hari Shankar Sharma or that he stated to the police that Hari Shankar Sharma died due to the beatings given by Nizarul, Rafiq, Guddu and Lal Batti. He denied the suggestion that he is deposing falsely as he has been won over by the accused persons.
(43) The testimony of PW3 Saroj Kumar Yadav is not helpful to the prosecution as he has not supported the case of the prosecution in any manner. Despite being cross examined at length by Ld. Addl. PP for the state and despite his statement Mark PW3/1 being read to this witness during crossexamination, PW3 Saroj Kumar Yadav has not supported the case of the prosecution in any manner. He specifically deposed that after attending call of nature, he went downstairs at ground floor and had seen nothing else. So, the testimony of PW3 Saroj Kumar Yadav is not helpful to the case of prosecution in any manner. The testimony of PW3 Saroj Kumar Yadav does not connect any of the accused persons with the commission of offence in question.
(44) PW6 Mohd. Fayeem: The relevant portion of the testimony of PW6 Mohd. Fayeem is as under: PW6 Mohd. Fayeem S/o Mohd. Usman has deposed in his chief examination that he does not know anything about this case, however police made inquiry from him in respect of one murder which took place in the area of Kirti Nagar but he do not know as to whose murder has been committed.
FIR No. 293/2014 PS Kirti Nagar Page no. 57 of 74 Since, PW6 has not supported the case of prosecution in any manner, this witness was also crossexamined by Ld. Addl. P.P. for the State.
In said crossexamination PW6 though has admitted that after coming to know about the said fact, he had also gone to second floor of A85 and further admitted that when he reached at second floor, he saw that Nazarul Hassan @ Ali, his helper Rafiq @ Rafi & Guddu thekedar, resident of third floor had caught hold of one person but he denied the suggestion that he has stated before the police that above mentioned three persons were beating the said person with kicks, fist blows and fatti. He also denied the suggestion that said person was under influence of intoxicant and was unable to speak. He denied the suggestion that he has stated before police that Nazarul Hassan @ Ali told him that he has suspicion on Guddu Thekedar in respect of the theft of his earlier mobile. He also denied the suggestion that he has stated before police that he asked Nazarul Hassan @ Ali not to beat that person and said person should be handed over to police but he did not pay any heed to his suggestion.
(45) During cross examination on behalf of State, though this witness has admitted that when after about 23 hours he again visited the third floor, at that time Lalbatti was also present there and he was making inquiry from said person, however, he denied that he stated before the police that accused Lalbatti was beating the said person with kick and fist blows or that said person was bearing the beatings silently.
He also denied the suggestion that Lalbatti asked him "tu bhi nasa FIR No. 293/2014 PS Kirti Nagar Page no. 58 of 74 karta hai, tu bhi is se pooch kar dekh". He also denied the suggestion that he has stated before police that thereafter Lalbatti said that "ye nase main lagta hai, isko niche chhod do". He further denied the suggestion that he has stated before police that on asking of Lalbatti, Nazarul Hassan @ Ali his helper Rafiq @ Rafi, Gudu Thekedar & Lalbatti took the said person on ground floor and left him near the electric pole. He volunteered that he was not there. He denied the suggestion that he has stated before police that said person was unable to move and was sitting there and thereafter he was lying there. He also denied the suggestion that he has stated before the police that someone poured water on his head but he did not wake up and after some time he came to know that he had died. Witness denied the suggestion that he is deposing falsely as he has been won over by the accused persons. He denied the suggestion that he had deliberately not disclosed all the material facts of the case with a view to save the accused persons.
(46) The testimony of PW6 Mohd. Fayeem is not helpful to the prosecution as he has not supported the case of the prosecution in any manner. Despite being cross examined at length by Ld. Addl. PP for the state and despite his statement Ex.PW6/A being read to this witness during crossexamination, PW6 Mohd. Fayeem has not supported the case of the prosecution in any manner. He specifically deposed that he does not know as to whose murder had been committed and who had committed the said murder. He denied the relevant suggestions that the accused persons gave beatings to the deceased or that due to the said beatings, deceased Hari Shankar has expired. So, the testimony of PW6 FIR No. 293/2014 PS Kirti Nagar Page no. 59 of 74 Mohd. Fayeem is not helpful to the case of prosecution in any manner. The testimony of PW6 Mohd. Fayeem does not connect any of the accused persons with the commission of offence in question.
(47) PW11 Mr. Sayeed : The relevant portion of the testimony of PW11 Mr. Sayeed is as under: PW11 Mr. Sayeed deposed that on 02.05.2014 he was residing at 3rd Floor of A85, Lakkar Mandi, Kirti Nagar and at around 7:00 am when he woke up and went to answer the call of nature and when he returned, he received a call from the owner namely Shera and he called him at a petrol pump situated near Maya Puri. He also deposed that he took him to PS Kirti Nagar and Shera told him that a quarrel took place and he has to give the statement to the police. He also deposed that during enquiry made by the police, he told them that he had gone to toilet.
(48) Since this witness has not supported the case of prosecution in any manner, Ld. Addl. P.P. for the State declared PW11 Mr. Sayeed hostile and also crossexamined this witness.
In said crossexamination the witness denied that he had stated to police that when he woke up at around 7:00 am, he heard the hue and cry from the 2nd floor of A85, then he came to second floor and saw that Nazru @ Ali and his helper Rafiq @ Rafi and Guddu Thekedaar had caught hold of one person and all of them gave beatings to him by kicks and fist and wooden fatta in the room of Lalbatti. He also denied FIR No. 293/2014 PS Kirti Nagar Page no. 60 of 74 that he has stated to police that he was told by Nazru @ Ali that said person was apprehended while he was committing theft of mobile phone. He also denied that he stated to police that Nazru told that 78 days ago, his mobile phone was stolen from same place and cost of the said mobile phone was Rs.12,000/ and at that time he raised suspicion towards Gudu and on this issue some altercation took place with him. He also denied that he stated to police that he asked Ali not to beat him and suggested to call any reasonable/wise person and handover him to the police. He also denied that he told police that Ali made call to Lalbati and Lalbati asked Ali to make the said person sit there and he would be coming and after one hour Lalbati came there and made enquiries from said person and gave beatings to him by kicks and fist blows but said person did not say anything and he was under influence of the drugs. He also denied all the material and relevant suggestions put to him during his crossexamination conducted by Ld. Addl. P.P. for the State. Lastly, he denied the suggestion that he is deposing falsely and he has been won over by accused or that he is deliberately not disclosing the true facts of the case happened before him with a view to save the accused persons.
(49) The testimony of PW11 Mr. Sayeed is not helpful to the prosecution as he has not supported the case of the prosecution in any manner. Despite being cross examined at length by Ld. Addl. PP for the state and despite his statement Ex.PW11/A being read to this witness during crossexamination, PW11 Mr. Sayeed has not supported the case of the prosecution in any manner. He denied the relevant suggestions FIR No. 293/2014 PS Kirti Nagar Page no. 61 of 74 that the accused persons gave beatings to the deceased or that due to the said beatings, deceased Hari Shankar has expired. So, the testimony of PW11 Mr. Sayeed is not helpful to the case of prosecution in any manner. The testimony of PW11 Mr. Sayeed does not connect any of the accused persons with the commission of offence in question.
(50) PW12 Mr. Mahesh Kumar Yadav (complainant):
The relevant portion of the testimony of PW12 Mr. Mahesh Kumar Yadav is as under: PW12 has deposed that he has been working at the shop of his brotherinlaw situated at A85, Lakkar Mandi, Kirti Nagar, Delhi and on 02.05.2014 at around 7:007:30 am, he left the shop of his brother inlaw to bring refined oil and when he returned after about half an hour, he found that a crowd had gathered there. He further deposed that his nephew Saroj and other staff told him that Lalbati, Ali and Guddu etc. have beaten one person namely Hari Shankar. He further deposed that said Hari Shankar was lying near the electric pole near his shop. He further deposed that more public persons gathered there and the public persons started damaging the furniture and other articles of his shop and thereafter the said shop was shut and they went away from there, however, the lock could not be put up on the shop. He further deposed that when they returned to the shop at around 4:005:00 pm to check their shop, police officials met them and took them to police station and made inquiries about the incident. PW12 further deposed that he had not seen anybody beating anyone.
FIR No. 293/2014 PS Kirti Nagar Page no. 62 of 74 (51) Since this witness has not supported the case of the
prosecution, Ld. Addl. P.P. for the State also crossexamined this witness as the witness was not disclosing the true facts of the case.
In the said crossexamination the present witness has admitted certain suggestions and denied certain other suggestions.
During cross examination, this witness has not admitted the material suggestions as given by Ld. Addl. P.P. for the State. He denied that he had seen the incident or that at the time of incident, accused Ali was saying "ye sala (Hari Shankar) chor hai, pehle isne mera mobile churaya tha aur aj phir phone nikaalne ke liye aya hai". He denied the suggestion that he stated to the police that he is sure that accused persons and their associates caused death of Hari Shankar. He also denied the suggestion that he had not seen the accused persons bringing Hari Shankar from the upper floor. He also even denied the suggestion that police prepared any site plan at his instance.
(52) The testimony of PW12 Mr. Mahesh Kumar Yadav is not helpful to the prosecution as he has not supported the case of the prosecution in any manner. Despite being cross examined at length by Ld. Addl. PP for the state and despite his statement Ex.PW12/A being read to this witness during crossexamination, PW12 Mr. Mahesh Kumar Yadav has not supported the case of the prosecution in any manner. The testimony of PW12 Mr. Mahesh Kumar Yadav does not connect any of the accused persons with the commission of offence in question.
FIR No. 293/2014 PS Kirti Nagar Page no. 63 of 74 (53) Testimonies of other public witnesses recorded during trial.
Here it is observed that during trial the prosecution has examined few other public witnesses. Now let their testimonies be also discussed so as to see, as to whether their testimonies are connecting any of the accused persons with the commission of offence in question.
(54) PW4 Rajesh Sharma This witness has only identified the dead body of deceased Hari Shankar vide identification memo Ex.PW4/A and received the dead body vide receipt Ex.PW4/B. So this witness being a formal witness does not connect any of the accused persons with the commission of offence in question.
(55) PW5 Sh. Dinesh Sharma The relevant portion of the testimony of PW5 Sh. Dinesh Sharma is as under : He deposed that on 30.04.2014 he was residing in Kirti Nagar, Delhi along with his brother Hari Shankar Sharma and on same day he returned from the village. He deposed that on 01.05.2014 his brother Hari Shankar Sharma told him in the morning hours that he was going for his duty and in the lunch hours he met him outside his company and on his asking he did not take lunch and went away and on the same day he did not turn up at their rented room. He also deposed that he searched him but he could not meet him and on 02.05.2014 while he was on his duty in the morning hours he came to know that the body of his brother Hari Shankar Sharma was lying in front of A85, Kirti FIR No. 293/2014 PS Kirti Nagar Page no. 64 of 74 Nagar and thereafter he went there and saw that the dead body of his brother was lying there and on local enquiry he came to know that resident of A85 gave beatings to his brother and he further came to know that assailant's name was Lalbatti. He further deposed that he made complaint to the police after 2 days and he identified the dead body of his brother Hari Shankar before police vide identification statement Ex.PW5/A and after the postmortem he received the dead body of his brother vide receipt memo Ex.PW4/A. (56) Here it is observed that the testimony of PW5 Sh. Dinesh Sharma is only formal in nature and admittedly he is not the witness of the occurrence. Though, this witness has deposed that he came to know that one of the assailant was Lal Batti but this witness has not seen the occurrence and the testimony to the effect that he came to know that one of the assailant was Lal batti is hearsay in nature and is not admissible in evidence. The testimony of this witness does not connect any of the accused persons with the commission of the offence in question.
(57) PW15 Sh. Mohan Lal Daga This witness is a formal witness as he has only deposed to have made a call to the police from his mobile number 9818300153 upon seeing the gathering of crowd in front of his shop.
So the testimony of this witness does not connect any of the accused persons with the commission of the offence in question.
FIR No. 293/2014 PS Kirti Nagar Page no. 65 of 74 (58) PW19 Sh. Dharmender Pandey
This witness has deposed that he has been running a shop of videography in the name of Pandey Studio and on 03.05.2014 on the direction of IO he conducted the videography of the spot.
So the testimony of this witness does not connect any of the accused persons with the commission of the offence in question.
(59) PW21 Ali Sher This witness has only deposed that he does not know anything about this case.
This witness has also turned hostile and was also crossexamined on behalf of state, however, during crossexamination he denied that Faqir Ali was his friend or that he had taken a SIM from said Faqir Ali for his use or that he had kept the mobile SIM in the drawer of the table or that the same fact was known to Nazarul. He also denied the suggestion that in his absence accused Nazarul Ali had used aforesaid SIM.
So the testimony of this witness does not connect any of the accused persons with the commission of the offence in question.
(60) PW22 Fakir Ali This witness has also not supported the case of the prosecution and was crossexamined on behalf of State. He denied that he had obtained mobile SIM number 9891354657 in his name and had handed over the same to Ali Sher or that the said Ali Sher was working with Nazarul Ali.
FIR No. 293/2014 PS Kirti Nagar Page no. 66 of 74 So the testimony of this witness does not connect any of the accused persons with the commission of the offence in question.
(61) PW25 Ajeet Singh This witness is Alternative Nodal Officer from Idea Cellular Ltd. and has produced the summoned record in respect of mobile number 9891354657 which was stated to be in the name of Faqir Ali. This witness has exhibited the customer application form of the aforesaid mobile phone number as Ex.PW25/A, DL of Faqir Ali as Mark PW25/1 and CDR of the said mobile from 01.05.2014 to 03.05.2014 as Ex.PW25/B. He also produced the summoned record in respect of mobile number 9718207732 which was stated to be in the name of Jalees. He also exhibited the certificate u/s 65B of Indian Evidence Act as Ex.PW25/D. During crossexamination he admitted that the location ID chart of the said mobiles has not been provided to the IO as the same was not demanded by IO and he has not brought any document regarding the location of aforesaid numbers.
So the testimony of this witness does not connect any of the accused persons with the commission of the offence in question.
(62) PW26 Amit Madan This witness is a landlord and has deposed that he had rented out third floor of his premises to Guddu, Shahid and Nasaruddin and on 02.05.2014 when he went to A85, Lakkar Mandi at about 10:3011:00 am he saw many public persons gathered there and he came to know that some mishappening had occurred with some unknown person who FIR No. 293/2014 PS Kirti Nagar Page no. 67 of 74 came from outside. This witness was declared hostile and was cross examination on behalf of State.
So the testimony of this witness does not connect any of the accused persons with the commission of the offence in question.
(63) Now let the testimony of the other witnesses examined during trial be discussed to ascertain if the testimony of said witnesses connects the accused persons with the commission of offence in question.
Testimony of PW1 ASI Ajeet Singh PW1 ASI Ajeet Singh is Crime Team Incharge who inspected the place of occurrence and prepared crime team report Ex.PW1/A and thus does not connect any of the accused persons with the commission of offence in question.
(64) Testimony of PW2 Ct. Satpal PW2 Ct. Satpal Singh is Crime Team Photographer who deposed to have taken the photographs Ex.PW2/1 to 7 of the dead body at the spot and also exhibited negatives as Ex.PW2/8 to 14 and thus does not connect any of the accused persons with the commission of offence in question.
(65) Testimony of PW7 HC Babita.
PW7 HC Babita is the duty officer who only recorded DD No.12A Ex.PW7/A and also registered FIR Ex.PW7/B and thus does not connect any of the accused persons with the commission of offence FIR No. 293/2014 PS Kirti Nagar Page no. 68 of 74 in question.
(66) Testimony of PW8 SI Kuldeep This witness is a formal witness who interrogated accused Abdul Samad and recorded his version.
(67) Testimony of PW9 HC Dhanesh This witness is a special messenger and handed over the copy of FIR to Ld. M.M. and other senior police officials and thus is a formal witness.
(68) Testimony of PW10 Ct. Virender Singh This witness is also a formal witness who deposed to have accompanied SI Harbhajan Singh to the place of occurrence and saw a dead body lying near electric pole. This witness also took the said body to the mortuary of DDU hospital and thus does not connect any of the accused persons with the commission of offence in question.
(69) PW14 ASI Om Prakash PW14 ASI Om Prakash is a Draftsman who deposed to have prepared two scaled site plans Ex.PW14/A and Ex.PW14/B and thus is a formal witness.
(70) PW16 HC Naresh Kumar PW16 HC Naresh Kumar is a formal witness who deposed to have deposited the exhibits at FSL.
FIR No. 293/2014 PS Kirti Nagar Page no. 69 of 74 (71) PW17 ASI Yogesh Dutt
PW17 ASI Yogesh Dutt is a formal witness who has brought the PCR form Ex.PW17/A and is a formal witness.
(72) PW23 ASI Padam Singh PW23 ASI Padam Singh is a formal witness being MHC(M) and has exhibited the relevant entries in Register No. 19.
(73) PW24 Ct. Vikas Singh PW24 Ct. Vikas Singh has deposed to have joined investigation on 02.05.2014 and took rukka to police station and got the FIR registered from duty officer.
(74) PW28 Ct. Mahavir PW28 Ct. Mahavir is also a formal witness in whose presence accused Jalees Ahmad was arrested by the IO vide Ex.PW28/A. It is hereby observed that the testimonies of aforesaid witnesses are formal in nature and does not connect any of the accused persons with the commission of offence in question.
Now, let the testimonies of the medical witnesses be discussed.
(75) PW 13 Dr. Komal Singh PW 13 Dr. Komal Singh deposed to have conducted postmortem on the body of Hari Shankar Sharma and she has exhibited the postmortem report as Ex.PW13/A. This PW has also deposed that on 25.07.2014 she also received one pullanda sealed with the seal of BMB FIR No. 293/2014 PS Kirti Nagar Page no. 70 of 74 and it found containing one grey colour wooden stick and she opined that the injuries sustained on the body of deceased could have been inflicted by the said stick. She also exhibited the said report as Ex.PW13/B. However, during crossexamination she specifically deposed that her opinion would be the same if IO produce more dandas of similar size and shape and consistency.
The overall impact of the testimony of PW13 is not conclusive in view of her specific deposition that her opinion would be the same if IO produce more dandas of similar size and shape and consistency and thus the report Ex.PW13/B i.e. subsequent opinion in respect of weapon of offence is not conclusive one and cannot be relied upon.
(76) PW18 Dr. Manoj Singh PW18 Dr. Manoj Singh deposed to have prepared the MLC Ex.PW18/A of deceased Hari Shankar and has declared the said Hari Shankar as brought dead at Casualty at around 01:55 pm. Now let the testimonies of the expert witness be discussed to come to the conclusion if the testimony of the expert witness connect accused persons with the commission of offence in question.
(77) PW27 Manisha Upadhyaya PW27 Manisha Upadhyaya, Assistant Director (Biology), FSL, Rohini deposed to have examined the exhibits and prepared report Ex.PW27/A. She also deposed that on serological analysis human blood of group 'O' was found on Ex.1 i.e. blood gauze of deceased and she exhibited the said report as Ex.PW27/B. During crossexamination she FIR No. 293/2014 PS Kirti Nagar Page no. 71 of 74 deposed that she cannot say whether the said blood group was 'O positive' or 'O negative'. No DNA examination was conducted by her on the said exhibit. Thus, the report of PW27 Manisha Upadhyaya is also not conclusive to connect any of the accused persons with the commission of offence in question.
(78) PW30 IO Insp. B.M. Bahuguna Now, let the testimony of PW30 IO Insp.B.M. Bahuguna be discussed to ascertain if the said testimony is sufficient to connect any of the accused persons with the commission of offence in question.
This witness has conducted investigation and has exhibited the relevant memos prepared by him during investigation. He deposed that during investigation accused Nazarul Hassan got recovered one wooden stick (fatti) from the place of incident i.e. A85, second floor, Lakkar Mandi, Kirti Nagar, Delhi and the said wooden stick was sealed with the seal of BMB and was seized vide seizure memo already Ex.PW20/C. He also identified the said wooden stick as Ex.P1. However, during crossexamination he admitted that at the time of recovery of said wooden stick no public witness was called as no one was present, meaning thereby that no public person was joined to witness the said recovery. Admittedly, the said recovery proceedings were neither videographed nor photographed. So, the recovery of said danda at the instance of accused Nazarul Hassan seems doubtful. Further, the report of concerned Autopsy Surgeon in respect of said danda is also not helpful to the prosecution as the said Autopsy Surgeon has specifically deposed during crossexamination that her opinion FIR No. 293/2014 PS Kirti Nagar Page no. 72 of 74 would be the same if IO produce more dandas of similar size and shape and consistency.
(79) In view of the detailed analysis of the evidence on record, it is clear that the material public witnesses whose testimonies have been discussed above have not supported the case of prosecution and even failed to support their respective statements u/s 161 Cr.P.C. during crossexamination as conducted by Ld. Addl. PP for the state. Moreover, in view of the totality of the facts and circumstances coupled with the detailed discussion on the point of recovery of weapon of offence, subsequent opinion and FSL report, it is crystal clear that the prosecution has failed to prove its case against all the accused persons namely Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmad @ Lalbatti for the offence charged which is punishable u/s 302/34 IPC, that is to say that the prosecution has failed to prove that the accused persons namely Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmad @ Lalbatti are guilty for offence punishable under Section 302/34 IPC. Hence, all the three accused persons namely Abdul Samad @ Guddu, Nazarul Hassan @ Ali and Jalees Ahmad @ Lalbatti are hereby acquitted of the charge framed against them.
Their previous bail bonds furnished during trial are hereby cancelled. Their respective sureties stand discharged. However, the bail bonds furnished by all the three accused persons under Section 437A Cr.P.C. shall remain effective for a period of six months from the date of this order.
Copy of this judgment be provided Dasti to both the sides free of FIR No. 293/2014 PS Kirti Nagar Page no. 73 of 74 cost.
File be consigned to record room after completing necessary formalities.
Digitally signed (Passed & announced in the open court today). MANISH by MANISH GUPTA GUPTA Date: 2022.03.09 18:07:59 +0530 (MANISH GUPTA) Addl. Sessions Judge04 West District, THC, Delhi 09.03.2022 FIR No. 293/2014 PS Kirti Nagar Page no. 74 of 74