Delhi District Court
State vs Rohit @ Deepak on 31 August, 2024
IN THE COURT OF SH. AKASH JAIN
ADDITIONAL SESSIONS JUDGE-04
EAST DISTRICT, KARKARDOOMA COURTS: DELHI
CNR No:- DLET-01-012302-2017
SC No:- 748/2017
FIR No : 267/2017
Police Station : Mayur Vihar
Under Section (s) : 302 Indian Penal Code & 25/27 Arms
Act
In the Sessions case of:-
State
versus
Rohit @ Deepak
S/o Sh. Naresh
R/o Jhuggi No. 305, Near Sai Baba Mandir
Kalyan Puri, Delhi.
Date of Institution : 06.11.2017
Date of reserving Order : 24.07.2024
Date of Pronouncement : 31.08.2024
Final Judgment : Acquitted
Appearances :-
For the State : Sh. Sukhbeer Singh, Ld.
Addl. PP.
For the accused : Sh. Pankaj Bhushan.
JUDGMENT
1. In the present case, accused Rohit @ Deepak was sent up for trial on the basis of report under Section 173 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') for committing murder of one Suraj S/o Sh. Ram Dayal on 23.07.2017 at about 11:00 AM, in public street, in front of House no. 32/16 & AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:15:06 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 1 of 37 170 and 32/189 & 90, 32 Block, Trilok Puri, within the jurisdiction of Police Station Mayur Vihar. Additionally, accused Rohit @ Deepak was charge-sheeted for offence under Section 25/27 of Arms Act as on the abovesaid date and time, he allegedly used a buttondar knife which was later on recovered from his possession on 24.07.2017.
Factual Matrix
2. The case of prosecution, in brief, is that on 23.07.2017 on receipt of DD No. 23-A SI Bengali Babu along with HC Rimple went to LBS hospital, Delhi and collected MLC No. 10284/17 belonging to victim Suraj who was admitted in the hospital with the history of assault with a sharp weapon. The concerned doctor had declared the victim unfit for statement. Thereafter, statement of eye-witness Shrinath @ Sheshnath was recorded by SI Bengali Babu who stated that victim Suraj was son- in-law of his sister namely, Minna. On 23.07.2017 at about 11:00 AM, he along with victim Suraj went to 32 Block Trilok Puri for some work. Victim Suraj had asked him to wait at main road in front of Shiv Mandir, 32 Block Trilok Puri and went in a gali towards 32 Block. After 6-7 minutes, Shrinath saw accused Rohit @ Deepak coming out of the gali with a blood stained knife. Shrinath further stated that accused Rohit @ Deepak was having previous enmity with victim Suraj owing to some monetary transactions. Thereafter, he quickly ran towards the gali and found victim Suraj lying there smeared with blood. Victim Suraj told him that he was stabbed by accused Rohit @ Deepak. Thereafter, Shrinath brought the victim to LBS hospital, Khichripur, Delhi through an e-rickshaw and informed about the incident to his AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:15:13 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 2 of 37 brother Satya Prakash, who had already reached the hospital with wife of victim Suraj namely, Baby. They got the victim admitted in the hospital and due to extreme blood loss, victim Suraj got unconscious after some time. The duty constable posted at the hospital consequently informed Police Station Kalyanpuri. After recording the statement of eye-witness Shrinath, SI Bengali Babu prepared Tehrir and got the FIR in question bearing no. 267/17 registered.
3. During investigation, SI Bengali Babu got the blood stained shirt of the victim Suraj seized and sealed with the Seal of 'LBS HOSP KP'. At the instance of complainant Shrinath, SI Bengali Babu prepared site plan without scale and recorded the statements of witnesses. He further tried to search accused Rohit @ Deepak but in vain. On 24.07.2017, an information was received by the IO vide DD No. 4-B that victim Suraj had succumbed to his injuries at LBS hospital. Thereafter, Section 307 IPC was substituted with Section 302 IPC in the case in question and investigation of the case was marked to IO/ Inspector Rajender Singh by the SHO concerned. Thereafter, he along with SI Bengali Babu and Ct. Deepak went to LBS Hospital where they met with the family members of deceased including complainant. Since, concerned doctor of mortuary at LBS hospital was on leave, the dead body of the deceased was taken to GTB Hospital, Shahdara for postmortem. IO recorded identification statement of Ram Dayal (father of deceased) and complainant Shrinath @ Sheshnath. After identification of the deceased, post mortem was carried out at GTB Hospital. Thereafter, IO handed over the dead body of deceased Suraj to his father and the doctor handed over to AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:15:19 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 3 of 37 IO the sealed envelope containing blood sample of deceased in gauze and sample seal of 'JSV' which was seized by the IO.
4. IO along with SI Bengali Babu, Ct. Deepak and complainant Shrinath went in search of accused Rohit @ Deepak and at 13-Block, Kalyan Puri, Chand Cinema, Delhi, they saw accused Rohit @ Deepak coming out of a park towards road. After due identification by the complainant Shrinath, IO along with other police officials apprehended the accused and carried out his personal search in which one buttondar knife was recovered from the right pocket of his jeans pant. On inspection of the knife by the IO, blood stains were found on the blade of the knife. Thereafter, IO measured the knife and prepared its sketch and the said knife was sealed in a cloth pullanda with the seal of 'RS' and the same was seized by him. Clothes of accused Rohit @ Deepak worn by him at the time of incident were further seized and sealed by the IO with the seal of 'RS'. Thereafter, pointing out memo of place of incident was prepared by the IO at the instance of accused. Accused reportedly admitted the commission of alleged offences in his disclosure statement.
5. During further investigation, IO collected the postmortem report from GTB Hospital and all the exhibits were sent to the FSL. Thereafter, the scaled site plan of the spot was prepared by draftsman ASI Sonu Kaushik. After collecting the documents pertaining to the present case from PS Kalyan Puri and recording the statements of other witnesses, IO prepared the charge-sheet against the accused for the offences under Section 302 of IPC and Section 25/27 of Arms Act and filed the same AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:15:43 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 4 of 37 before the Court of Ld. MM on 21.10.2017. After statutory compliance under Section 207 IPC, present case was committed to the Court of Sessions and assigned to this Court vide order dated 06.11.2017 passed by Ld. District & Sessions Judge, East District, Karkardooma Courts, Delhi.
Charge
6. Vide order dated 08.12.2017, accused Rohit @ Deepak was formally charged for commission of offences under Section 302 IPC & 25/27 Arms Act.
Prosecution Evidence
7. In order to prove its case prosecution examined as many as 23 witnesses. For the sake of convenience, I have categorized those witnesses in following 4 categories:-
Eye Witnesses
8. PW-12 Shrinath, PW-13 Shiva and PW-14 Avinash are the alleged eye-witnesses in the present case and testimonies of these witnesses would be discussed in detail at later stage.
Expert witnesses
9. PW-1 is Dr. Nikita, Casualty Medical Officer from LBS Hospital who deposed that on 23.07.2017, one injured Suraj S/o Ram Dayal was brought in the hospital by his wife Baby with alleged history of assault (stab). She medically examined him and found clean incised wound of size about 2 cm over left side of abdomen near umbilicus. She gave some primary treatment and thereafter, injured was referred to Surgery Department for detailed AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:15:50 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 5 of 37 examination and further management. After examination, yellow and dark blue colour shirt soiled with blood was sealed and handed over to IO with sample seal. She proved the detailed MLC vide Ex.PW1/A.
10. PW-2 is Dr. Narendra Goel, Senior Surgery from LBS Hospital, Delhi who deposed that on 23.07.2017, he issued MLC death summary and death certificate of deceased Suraj S/o Ram Dayal as Ex.PW2/A and Ex.PW2/B respectively.
11. PW-8 is Indresh Kumar Mishra, Assistant Director (Biology), RFSL who deposed that on 07.09.2017, he was posted at FSL Rohini and received 4 sealed parcels. Their seals were intact and tallied with the sample seal and same were marked to him for examination and opinion. He examined the said exhibits and blood was detected on exhibit 1, 2a, 2b, 3 and 4. DNA profile generated from the source of Ex. 3 (knife) was found to be similar with the DNA profile generated from the source of Ex. 4 (blood sample in gauze of deceased). DNA profile though could not be generated from the source of Ex. 1, 2a and 2b. PW-8 proved the detailed report dated 07.11.2017 vide Ex. PW 8/A. He further identified the knife as Ex. P-1.
12. PW-9 is Dr. Vishwajeet Singh, Assistant Professor, Department of Forensic Medicine, Saraswati Institute of Medical Science, Hapur, UP who deposed that on 24.07.2017 he conducted the postmortem on the dead body of Suraj and on examination, he found following external injuries on his body:-
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(i) Stitched Incised stab wound (3 stitches were found in situ) of size 3x0.2cm x cavity deep was present horizontally over front of left side abdomen, 0.4 cm from midline and just below umbilicus. Medial end was sharp and lateral end was blunt. Wound went horizontally backwards cutting underlying soft tissues, muscles. Signs of surgical repair were noted in mesenteries and bowel loops at places.
(ii) Stitched Incised wound (2 stitches were found in situ) of size 1.0x0.1x0.3 cm was present obliquely over left side abdomen, 8.5 cm from midline and 6.0 cm above left anterior superior iliac spine with tailing towards lower lateral end for a distance of 1.0 cm.
13. PW-9 further opined the cause of death as shock as a result of antemortem injury to abdomen produced by sharp edge weapon and injury no. 1 and 2 were produced by sharp edged weapon and injury no. 1 was sufficient to cause death in ordinary course of nature. PW-9 proved detailed postmortem report as Ex. PW9/A. Public Witnesses
14. PW-7 Ram Dayal is father of the deceased who identified the dead body of his son Suraj at GTB Hospital on 24.07.2017 vide Ex. PW7/A. He deposed that after postmortem the dead body of deceased was handed over to him vide receipt Ex.PW7/B. He further deposed that he came to knowDigitally about the AKASH by AKASHsigned JAIN JAIN Date: 2024.09.04 17:16:00 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 7 of 37 incident from 3-4 persons, who were living at Kalyanpuri and had come to him in an auto to inform that his son had been stabbed.
15. PW-11 is Smt. Baby who is wife of the deceased. She deposed that she did not remember the date of incident, however the incident was of Saawan month in the year 2017 and was Sunday. She deposed that on the date of incident at about 11:00 am, Satya Prakash (brother of her Mama Shrinath) informed her on phone that accused Rohit had inflicted knife injury to her husband Suraj at Block No. 32, Trilokpuri. Satya Prakash also informed her that her husband was taken to LBS hospital. Thereafter, she alongwith her younger sister reached at LBS hospital and talked to her husband. Her husband informed her that accused Rohit who is son of lady namely, Lanka had inflicted knife injury to him. PW-11 further deposed that deceased told her that accused Rohit was having enmity with one Sunny Bhanda and Sunny Bhanda was having friendly relations with him and due to this reason, for taking revenge, accused Rohit had inflicted knife injuries to him. During the night hours her husband/ deceased expired in the hospital.
16. During cross-examination, PW-11 Smt. Baby stated that she did not receive any phone call of Satya Prakash and that Shrinath informed Satya Prakash on phone and thereafter, Satya Prakash personally informed her about the incident. She further stated that Satya Prakash came to her at around 11/11.30 am and they went to the hospital on Rickshaw and reached there in around 5 minutes. Police met her in the hospital at around 1:00 pm and Satya Prakash was also present in the hospital when police met AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:16:10 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 8 of 37 them there. PW-11 denied the suggestion that she did not meet Satya Prakash on the day as deposed by her or that he did not inform her anything about her husband at about 11/11.30 am. She further denied that she did not visit the hospital at the time as deposed by her or that she did not have any talk with her husband or that he was not in his senses to tell anything to anybody. She further denied the suggestion that she had been made a false witness in the present case being wife of the deceased.
17. PW-16 is Satya Prakash who deposed that he was employed in a gym at Ghaziabad and on the day of incident at about 8/9 p.m, he was present at aforesaid gym and received phone call of Baby (wife of Suraj), who asked him to inform her mother to reach LBS Hospital. Thereafter at about 11.00-11.30 p.m, when PW-16 was present at his residence, he again received phone call of Baby and she informed that Suraj had expired. Thereafter, he alongwith his parents and parents of Baby reached at LBS hospital. He deposed that he did not know how Suraj had died and that police neither made any enquiries from him nor recorded his statement, however, he once visited Police Station Mayur Vihar with Baby and her parents. He deposed that Shrinath @ Shesh Nath is his brother and he had never informed him about any fact that who caused injuries to Suraj. He deposed that he had not visited LBS hospital during the time when Suraj was admitted and alive.
18. During cross-examination by Ld. Addl. PP for the State, PW-16 denied that his statement was recorded on 23.07.2017 by the police as Mark PW16/PA. PW-16 denied the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:16:16 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 9 of 37 suggestion that he had told to the police that on 23.07.2017 his brother Shrinath @ Shesh Nath informed him on phone that Rohit had inflicted knife injury to Suraj or that Shrinath also asked him to reach LBS Hospital with Baby (wife of Suraj) or that thereafter, he alongwith Baby reached at LBS Hospital. He further denied the suggestion that in the hospital in his presence, Suraj informed his wife Baby regarding the incident and also told that Rohit had inflicted knife injury to him. He further denied that Suraj further informed that 14-15 days prior to the incident, a quarrel took place between Rohit on one side and Sunny, Aloo and Bhalu on another side or that he (Suraj) is friend of Sunny or that due to their enmity accused Rohit inflicted knife injury to Suraj. PW-16 further denied the suggestion that he had intentionally and deliberately suppressed the true and incriminating facts of his statement Mark PW16/PA as he had been won over by the accused.
Official/ Police Witnesses
19. PW-3 is ASI Kamal Kishore, who deposed that he was posted as Duty Officer at Police Station Mayur Vihar on 23.07.2017. At about 05:40 PM, on receipt of rukka from HC Rimple, he recorded FIR No. 267/2017 which was typed by CIPA Operator Constable Anirudh and proved the same as Ex. PW 3/A and made endorsement on the same vide Ex. PW 3/B. He further proved Certificate under Section 65-B of Indian Evidence Act as Ex. PW 3/C. During his testimony, he brought the original DD register containing DD No. 34A dated 23.07.2017 and proved the same vide Ex. PW 3D and DD No.4A dated 24.07.2017 as Ex. PW 3/E. Digitally signed by AKASH JAIN AKASH Date:
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20. PW-4 is Sh. Sunil Kumar, Assistant Clerk, who proved the notification bearing no. F-13/ 451/ 79-Home (G) vide Ex. PW 4/A.
21. PW-5 is HC Ram Kishan who deposed that on 23.07.2017 he was posted at police station Mayur Vihar as duty officer and on that day at about 02:35 PM, he received an information through Ct. Krishan Kumar from LBS hospital regarding admission of one boy who received injuries in his abdomen by knife. He recorded the information vide DD No. 23 A and proved it as Ex. PW 5/A.
22. PW-6 is ASI Sonu Kaushik, who deposed that on 14.10.2017 he was posted as Assistant Draftsman, Crime Branch, PHQ, Delhi. On the instructions of Inspector Rajender Singh he along with Inspector Rajender Singh, SI Bengali Babu and one public witness Sheshanth had gone to the spot. He took measurements and prepared rough notes at the instance of SI Bengali Babu and public witness Sheshnatah and proved the scaled site plan as Ex. PW 6/A.
23. PW-10 is ASI Hem Chand who deposed that on 09.07.2017, he was posted at Police Station Kalyan Puri and was working as Duty Officer from 12 midnight to 08:00 AM. FIR in question No. 232/17 was registered during his during his duty hours. He proved the same as Ex.PW10/A. He further deposed that one DD no. 24A was also recorded at Police Station Kalyan Puri on 23.07.2017 during the duty hours of ASI Surender. PW-10 Digitally signed proved the original DD as Ex.PW10/B. AKASH by AKASH JAIN Date:
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24. PW-15 is Ct. Krishan Yadav who deposed that on 23.07.2017, he was posted at Police Station Kalyanpuri and was on duty as Duty Constable at LBS Hospital. He stated that on the said day at about 11.30 a.m, one injured Suraj was got admitted by his wife Baby in LBS Hospital. He made enquiries from Baby to which she informed that she came from area of Police Station Kalyanpuri and accordingly, PW-15 informed the Police Station Kalyanpuri and DD No. 24-A was recorded in this regard. PW-15 deposed that ASI Shiv Murti of PS Kalyanpuri reached at LBS Hospital and made enquiries from the relatives of injured Suraj and the incident was found pertaining to jurisdiction Police Station Mayur Vihar. Accordingly, he informed Police Station Mayur Vihar at 2.35 PM and DD No. 23-A was recorded at Police Station Mayur Vihar in this regard. Thereafter, SI Bengali Babu and HC Rim Pal reached LBS Hospital and SI Bengali Babu received the MLC of injured Suraj. PW-15 deposed that the doctor on duty had handed over one sealed pullanda sealed with the seal of LBS HOSP KP, containing blood stained clothes of Suraj to him and he handed over the same to SI Bengali Babu which were seized in his presence. In the night at about 1.00 AM, doctor had informed him about the death of injured Suraj and he accordingly informed duty officer Police Station Mayur Vihar which information was recorded vide DD No. 4-A. Later on statement of PW-15 was recorded by IO Inspector Rajender Singh.
25. PW-17 is SI Shiv Murti who deposed that on 23.07.2017 he was posted at Police Station Kalyanpuri as ASI on emergency duty. During his duty hours at about 11.30/11.35 AM, DD No. 24-A was recorded at Police Station Kalyanpuri which AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:16:36 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 12 of 37 was marked to him. Thereafter, he reached at LBS hospital where on enquiry from wife of injured Suraj, he came to know that someone had inflicted knife injury to Suraj at Trilokpuri, Block no. 32 i.e. in the area of Police Station Mayur Vihar. He accordingly informed Police Station Mayur Vihar regarding the incident and later on, his statement was recorded by the IO. On being put the leading question by Ld. Addl. PP for the State and after going through the statement dated 02.10.2017, PW-17 stated that he recollected that during enquiry from wife of injured, he came to know that one Rohit had inflicted knife injury to Suraj.
26. PW-18 is Retd. SI Bengali Babu who deposed that on 23.07.2017, he was on emergency duty from 8 am to 8 pm and on that day, he was informed by the Duty officer about the contents of DD No. 23-A which was recorded in the Police Station at about 2.35 PM. Thereafter, he alongwith HC Rimple reached at LBS Hospital and obtained MLC No. 10284 of injured Suraj, who was under treatment in the hospital and was unfit for statement at that time. The doctor present there had produced a sealed pullanda alongwith sample seal, stated to be containing shirt of injured Suraj. PW-18 proved the said pullanda vide seizure memo Ex.
PW18/A. He searched for eye witness of the incident in the hospital and one PW Shrinath met him and he made enquiries from him and recorded his statement. The same is already proved as Mark PW12/PX. On the basis of said statement, PW-18 made endorsement and prepared Rukka vide Ex. PW18/B and handed over the same to HC Rimple for taking it to Police Station Mayur Vihar for registration of FIR. Digitally signed by AKASH JAIN AKASH Date:
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27. Thereafter, he recorded the statement of Baby (wife of injured Suraj) and Satyaprakash. In the meantime HC Rimple returned to LBS hospital and handed over him copy of FIR and rukka. Thereafter, PW-18 alongwith HC Rimple and complainant Shrinath reached at the spot and prepared site plan Ex. PW18/C at the instance of Shrinath. He made enquiries at the spot and recorded statements of Shiva and Golu. He further tried to search accused Rohit @ Deepak but he could not be found. Thereafter, complainant Shrinath was relieved from the investigation and he alongwith HC Rimple returned to the Police Station with case property and deposited the same in a sealed pullanda in the Malkhana. In the night at about 1.00 am, an information was received in the Police Station regarding the death of Suraj at LBS Hospital, which was recorded vide DD No. 4A as Ex. PW3/E. He informed the same to SHO and thereafter, offence under Section 302 IPC was added and investigation was marked to Inspector Rajender.
28. PW-18 deposed that thereafter, he and Ct. Deepak were joined in the investigation by IO Inspector Rajender Singh and all of them reached at LBS hospital mortuary. Family members as well as some relatives of deceased met them there. IO/Inspector Rajender prepared the inquest papers for postmortem of deceased Suraj, however, he was informed by the authorities of LBS hospital that concerned Doctor for postmortem was on leave and on the directions of M. S, LBS Hospital, IO received the dead body of deceased Suraj from mortuary of LBS hospital and took the same to GTB Hospital. The dead body was later on identified by Sheshnath @ Shrinath and after the postmortem, dead body of AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:16:49 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 14 of 37 deceased Suraj was handed over to him. The doctor concerned handed over one sealed envelope stated to be containing blood sample of deceased alonwith sample seal which was seized by the IO vide Seizure Memo Ex. PW18/D. Thereafter, PW-18 alongwith Ct. Deepak, IO and complainant Shrinath proceeded in the search of accused Rohit @ Deepak and reached at Block no. 13, Kalyanpuri near Chand Cinema, where accused was found coming from under construction Metro station site, who was identified by complainant, Shrinath and on his identification accused was apprehended. On personal search of accused by Ct. Deepak, one buttondar knife was recovered from his pocket of jeans pant. Accused was thereafter, arrested by the IO vide arrest memo Ex. PW18/E and he was also interrogated and his disclosure statement was recorded by IO vide Ex. PW18/F. On inspection of the knife by IO, blood stains were found on the blade of knife and IO measured the knife and prepared a sketch vide Ex. PW18/G. Thereafter, the said knife was sealed in a cloth pullanda with the seal of RS. PW-18 proved the sealed pullanda of knife vide seizure memo Ex. PW 18/H and pointing out memo as Ex. PW18/I. He further deposed that accused Rohit @ Deepak told them that the clothes worn by him at the relevant time were the same clothes as worn by him at the time of incident. Hence, clothes of accused were seized and sealed by the IO with the seal of RS and sealed pullanda was seized vide seizure memo Ex. PW18/J and thereafter, accused was medically examined and lodged in the lock- up. Case property was deposited in the Malkhana by the IO and his statement was recorded by the IO in the Police station.
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29. On 14.10.2017, PW-18 again joined the investigation and draftsman ASI Sonu Kaushik came to the police station. Thereafter, he alongwith IO, complainant Shrinath and ASI Sonu Kaushik reached at spot and ASI Sonu Kaushik took the measurements at the instance of complainant Shrinath. PW-18 correctly identified the accused during his testimony. He further correctly identified that case property i.e. knife vide Ex. P-1 and clothes of accused i.e. one t-shirt of yellow colour having black full sleeve as Ex. P-2 and jeans pant as Ex. P-3 respectively.
30. PW-19 is HC Rimpal who deposed that on 23.07.2017, he was posted at PS Mayur Vihar and was on emergency duty with Sl Bengali Babu from 8:00 AM to 8:00 PM. He further deposed on the lines of testimony of PW-18 SI Bengali Babu regarding reaching LBS hospital, recording statement of eye-witness Shrinath and receiving sealed pullanda containing clothes of deceased.
31. PW-20 is HC Kapil who deposed that on 07.09.2017, he was posted at PS Mayur Vihar and on that day, on the instructions of IO, he collected four exhibits along with sample seal vide RC no. 88/21 and deposited the same at FSL, Rohini and acknowledgment in this regard was handed over to MHC(M). He further deposed that till the exhibits remained in his custody, they were not tampered with by anyone.
32. PW-21 is HC Ajay who deposed that on 23.07.2017, he was posted at PS Mayur Vihar as MHC(M) and on that day, SI Bengali Babu deposited a parcel duly sealed with the seal of LBS AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:17:00 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 16 of 37 Hospital along with sample seal which PW-21 deposited the same in malkhana and made entry at serial no. 2508 in register no. 19 vide Ex.PW21/A. On 24.07.2017, Inspector Rajender Singh deposited one envelope duly sealed with the seal of JSV along with sample seal and two parcels sealed with the seal of RS in malkhana and made entry at serial no. 2509 in register no. 19 vide Ex.PW 21/B. On 07.09.2017, the aforesaid parcels along with respective sample seals were sent to FSL, Rohini through Ct. Kapil vide RC no. 88/21/17 i.e. Ex.PW 21/C. He further deposed that after depositing the aforesaid parcels an acknowledgment receipt to this effect was handed over to him by Ct. Kapil as Ex.PW21/D.
33. PW-22 is Ct. Deepak who deposed that on 24.07.2017 he was posted at Police Station Mayur Vihar as a Constable and on that day, his duty hours were from 08.00 AM to 08.00 PM. At about 08.00 am he alongwith SI Bengali Babu joined the investigation of this case with Inspector Rajender Singh. PW-22 further deposed on the similar lines of testimony of PW-18 SI Bengali Babu regarding postmortem of deceased at GTB Hospital, identification of dead body by family members, apprehension of accused Rohit @ Deepak, his personal search, recovery of blood-stained buttondar knife from accused, recording of disclosure statement of accused and seizure of knife and clothes of accused. He correctly identified the knife as Ex.P1 and clothes of the accused i.e. yellow coloured T-shirt Ex.P2 and jeans pant as Ex.P3 which were seized by the IO.
34. PW-23 is IO Inspector Rajender Singh who deposed that on 24.07.2017, he was posted at Police Station MayurDigitally Vihar as AKASH by AKASHsignedJAIN JAIN Date: 2024.09.04 17:17:06 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 17 of 37 Inspector and on that date, investigation of the present case was marked to him by the order of SHO concerned. Thereafter, he deposed on the similar lines as that of testimony of PW-18 SI Bengali Babu regarding going to LBS Hospital, meeting with the family members of deceased, taking dead body of the deceased to GTB Hospital, Shahdara for postmortem and identification of dead body by his family members. PW-23 deposed that he filled up the Form No. 25.35 of the deceased as Ex.PW23/B and made request for postmortem as Ex.PW23/A. Thereafter, postmortem on the dead body of Suraj was conducted at GTB Hospital and dead body of the deceased Suraj was handed over to his father vide handing over memo Ex. PW 7/B. PW-23 deposed that doctor handed over to him sealed envelope containing blood sample of deceased in gauze and sample seal JSV which he seized vide seizure memo Ex. PW 18/D. PW-23 further continued to depose on the same lines of testimony of PW-18 regarding apprehension of accused, his personal search, recovery of knife, clothes and recording of his disclosure statement. PW-23 stated that after concluding the investigation, he prepared the charge-sheet and filed the same in Court. He correctly identified the accused in Court and also identified knife Ex. P1 and clothes of accused as Ex. P2 and Ex. P3.
35. All the witnesses were duly cross-examined by Ld. Counsel for accused.
Statement of Accused
36. After conclusion of prosecution evidence, accused was examined under Section 313 Cr.P.C. and incriminating AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:17:13 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 18 of 37 evidence appeared against him during trial was put to him. Accused denied the entire incriminating evidence put to him and stated that he had been falsely implicated in this case being bad character (BC) of the area. He further stated that all the recoveries in this case were planted by the police and he was wrongfully lifted from his home and his signatures were forcibly obtained on blank papers by the police.
37. No defence evidence was led by the accused despite opportunity granted by the Court. As such, the matter proceeded for final arguments.
Final Arguments
38. It is argued by Ld. Addl. PP for the State that it has been proved beyond reasonable doubt that murder of deceased Suraj was committed by the accused on 23.07.2017 at about 11:00 AM in public street in 32 Block, Trilok Puri. It is argued that the weapon of offence i.e. knife was recovered from possession of accused at the time of his arrest and blood was found on the blade of said knife. It is further argued that the DNA profile generated from the knife was found to be similar with the DNA profile of deceased in terms of report Ex. PW 8/A. It is further argued that the wife of deceased i.e PW-11/ Baby categorically stated during her testimony that she met the deceased at LBS hospital and talked to him, who informed her that accused Rohit had inflicted knife injury to him as he was friends with Sunny Bhanda with whom accused Rohit had enmity. It is argued that the deceased Suraj died on the same day at hospital during the night hours and as such, the dying declaration statement given by him to his wife/ PW-11 is AKASH Digitally AKASH JAIN signed by JAIN Date: 2024.09.04 17:17:19 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 19 of 37 sufficient to convict accused Rohit @ Deepak for the alleged offences in question.
39. Per contra, it is argued by Ld. Counsel for accused that the star eye-witnesses of the prosecution i.e. Shrinath/ PW-12, Shiva/ PW-13 and Avinash/ PW-14 failed to support its case and categorically stated that they did not see the alleged incident in which deceased Suraj received injuries. It is argued that no motive qua commission of alleged offences by the accused could be established by the prosecution and all the recoveries shown to have been effected from the accused are planted by the police. It is argued that no independent public witnesses were joined at the time of arrest and personal search of accused and sole recovery public witness i.e. PW-12 Shrinath did not support the case of prosecution. As such, the recovery of knife and blood stained clothes from the accused are shrouded with suspicion. It is further argued that as per FSL report Ex. PW 8/A no DNA profile could be generated from the alleged clothes of accused. It is finally argued that statement of PW-11/ Baby is not credible as it is contradictory on material aspects with testimonies of PW-12 Shrinath and PW- 16 Satya Prakash.
Analysis and Findings
40. In order to bring home the guilt of accused, prosecution heavily relied upon the testimonies of alleged eye- witnesses i.e. PW-12 Shrinath, PW-13 Shiva and PW-14 Avinash. However, all the three witnesses did not support the case of prosecution and resiled from their statements under Section 161 Cr.P.C. recorded before the police. The testimonies of all these 3 AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:17:25 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 20 of 37 witnesses are being discussed as under for reference:-
41. PW-12 is Shrinath @ Sheshnath. He deposed that Suraj (deceased) was son in law (damad) of his sister Minna. He stated that on 24.07.2017, he had seen the dead body of Suraj at Mortuary, GTB Hospital. He did not support the case of prosecution and deposed that he did not know who caused death of Suraj. He denied having seen any incident in which Suraj received injuries and due to which he died. PW-12 deposed that police met him at GTB Hospital when he identified the dead body of Suraj. He deposed that police obtained his signatures on 4-5 papers, however, police had not recorded his statement in this case regarding any incident. He deposed that he did not know any person namely Rohit @ Deepak s/o Smt. Lanka R/o 19 Block Kalyan Puri, Delhi. He deposed that accused Rohit @ Deepak was not arrested in his presence.
42. During cross-examination by Ld. Addl. PP for the State, PW-12 denied the suggestion that he had seen the incident in which accused Rohit @ Deepak murdered Suraj. He identified his signatures at point A on his statement, but he stated that police had obtained his signatures on blank paper. PW-12 denied the suggestion that he had stated to the police that on 23.07.2017 at about 11 am, he along with Suraj came to 32 block, Trilok Puri, Delhi for work and Suraj left him on the main road in front of Shiv Mandir, 30 block. Trilok Puri, Delhi saying that he should wait there as he (Suraj) will return after some time. He denied the suggestion that thereafter, Suraj proceeded towards 32 block Trilok Puri and after 6-7 minutes, he saw accused Rohit @ Deepak AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:17:32 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 21 of 37 coming out with blood stained knife in his hand from the gali. PW- 12 denied that he immediately rushed towards that gali from which accused Rohit @ Deepak came out having knife or that he saw victim Suraj lying in the gali smeared with blood or that Suraj informed him that Rohit had inflicted knife injury to him. PW-12 denied the suggestion that he had stated to police that with the help of public persons passing through that gali, he lifted Suraj, boarded him in E-rickshaw and got admitted him to LBS hospital. He further denied the suggestion that he informed his brother Satya Prakash regarding this incident or that thereafter, Satya Prakash along with wife of Suraj namely, Baby reached at LBS hospital.
43. PW-12 further denied the suggestion that he had seen the aforesaid incident. He identified his signatures at point A on the statement which was recorded by the police when he identified the dead body of Suraj in Mortuary, GTB Hospital as Ex.PW12/A. PW-12 denied the suggestion that police had recorded his statement Mark PW12/PY on 24.07.2017 regarding the arrest of accused Rohit @ Deepak and other parts investigation which he had joined with the police. He denied the suggestion that on 24.07.2017 after the funeral of Suraj, on the instructions of police officials, he reached at 27 block Trilok Puri where SI Bengali Babu and Ct. Deepak along with some other staff met him or that he boarded in their private swift car and went in search of accused Rohit or that while searching they reached near Chand Cinema, Kalyan Puri, 13-block at about 7.15 pm where accused Rohit @ Deepak was found coming from inside the park situated near under constructed metro site. PW-12 denied the suggestion that he pointed out towards accused Rohit @ Deepak and on his AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:17:38 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 22 of 37 identification, accused Rohit @ Deepak was apprehended by the police when he tried to flee away from the aforesaid park. PW-12 further denied the suggestion that Ct. Deepak took search of accused Rohit @ Deepak in which one button-actuated knife was recovered from the right pocket of blue colour pant worn by the accused.
44. PW-12 denied the suggestion that on opening the knife with the help of button, blood was found on its blade and that he identified the said knife as the same knife which was used by the accused to kill Suraj. He further denied the suggestion that police had measured the knife and prepared its sketch and pullanda which was sealed with the seal of RS and same was seized by the police. PW-12 further denied the suggestion that he stated to police that accused Rohit was wearing the same clothes as worn by him at the time of incident or that accused told them that he had cleaned the blood from clothes with water or that his clothes having blood stains were sealed in a pullanda with the seal of RS and seized by the police.
45. PW-12 identified his signatures on the site plan Mark A, seizure memo of clothes of accused Deepak Mark B, seizure memo of knife Mark C, sketch of knife Mark D, disclosure statement Mark E, pointing out memo Mark F and arrest memo Mark G and stated that police had obtained his signatures on blank papers. PW-12 did not identify the accused Rohit @ Deepak and denied the suggestion that he is same person who had caused knife injury to Suraj and was arrested in his presence. PW-12 further denied the suggestion that he was intentionally not identifying the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:17:47 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 23 of 37 accused as he had been won over by him and wanted to save him in this case.
46. PW-13 Shiva deposed that earlier, he used to sell toffees and snacks etc. near the wall of Park of Block no.32, Trilokpuri. He did not support the case of prosecution and stated that he had not seen any incident of stabbing on 23.07.2017 or at any other point of time near his shop. PW-13 further deposed that police never met him regarding the investigation of the present case and did not record his statement. He deposed that he did not know any person namely Rohit s/o Naresh.
47. During cross-examination by Ld. Addl. PP for the State, PW-13 Shiva denied the suggestion that police had recorded his statement on 23.07.2017 regarding the incident in question being Mark PW13/A. PW-13 Shiva denied that he had told to police that on 23.07.2017, at about 11 a.m., he was present at his stall/ shop and had seen two boys who were talking in loud voice and while quarreling one boy inflicted knife injury in the abdomen of another boy and thereafter, the said assailant ran towards Block No. 30. PW-13 further denied that he had told to police that thereafter, some boys lifted the injured boy from the spot and took him to Wireless Road via Masjid Wali Gali and later on he came to know that injured was shifted to hospital. He further denied that he came to know later the name of assailant as Rohit R/o Kalyanpuri. PW-13 Shiva failed to identify accused in Court and denied that he was intentionally and deliberately not identifying the accused as he Digitally had been won over by him. signed by AKASH AKASH JAIN Date:
JAIN 2024.09.04
17:17:54
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48. PW-14 is Avinash @ Golu who deposed that he had not seen any incident in which any person received knife injury. He deposed that police never met him nor recorded his statement in the present case. PW-14 further deposed that earlier he was working in Army Headquarters as Peon and PW-13 Shiva is his brother and was earlier working in Defence Ministry. He further deposed that Shiva worked there for about one year and later on left his job and started sitting on Toffee and Snacks Stall, near the ground at Block No.32, Trilokpuri, Delhi.
49. PW-14 denied the suggestion that he had seen the incident dated 23.07.2017 or that police recorded his statement regarding the incident as Mark PW14/PA. He further denied that on 23.07.2017, he was coming from his house to meet his brother Shiva and at about 11.00 he saw two boys quarreling in the street and one boy inflicted knife injury to another boy. He further denied that he had told to the police in his statement that thereafter, some boys lifted the injured boy from the spot and took him to the hospital. PW-14 denied the suggestion that he was intentionally and deliberately suppressing the true and incriminating facts of his statement Mark PW14/PA or that he had been won over by the accused.
50. The testimonies of aforesaid alleged eye-witnesses thus, make it clear that none of them had seen the incident in question in which deceased Suraj received injuries. It is now to be ascertained that whether the prosecution has managed to prove its case against accused beyond reasonable doubt on the basis of circumstantial evidence. AKASH Digitally signed by AKASH JAIN Date: 2024.09.04 JAIN 17:18:00 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 25 of 37
51. Hon'ble Supreme Court in the celebrated judgment of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 has elaborately considered the standard necessary for recording a conviction on the basis of circumstantial evidence which are:-
(a) the circumstance from which the conclusion of guilt is to be drawn should be fully established,
(b) the facts so established should be consistent only with the hypothesis of guilt of the accused that is to say, they should not be explainable on any hypothesis except that the accused is guilty,
(c) the circumstances should be of a conclusive nature and tendency,
(d) they should exclude every possible hypothesis except one to be proved and
(e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
52. It would be expedient here to refer to the observations of their lordship in the case of G. Farishwanath v. State of Karnataka, (2010) 8 SCC 593, where it was reiterated that where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:18:06 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 26 of 37 evidence and decide whether that evidence proves a particular fact and if that fact is proved the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. It was observed that:
".... Although there should not be any missing links in the cases, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusions of guilty and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/ are not decisive.
The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone. It must exclude each and every hypothesis suggested by the accused. However, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court...."
53. Now, with these parameters of law regarding circumstantial evidences and being conscious of the fact that the burden of proof in a criminal trial is always on the prosecution and it never shifts and to secure a conviction, the prosecution has to prove its case beyond reasonable doubt on the basis of acceptable AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:18:12 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 27 of 37 evidence, I will proceed towards appreciation of evidence. It is a settled principle of criminal law jurisprudence that more serious the offence, stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight- jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties. It is for the Court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt.
54. Coming to the present case and in the backdrop of fact that the material alleged eye-witnesses of prosecution i.e. PW-12, PW-13 and PW-14 had turned hostile and did not support its case, following incriminating circumstances are relied upon by the prosecution to point towards the guilt of the accused;
(i) Dying declaration given by deceased to his wife i.e. Baby/ PW-11;
(ii) Motive; (iii) Recovery of blood stained weapon of offence; (iv) Recovery of blood stained clothes. 55. Dying declaration 55.1 It is the case of prosecution that on the day of incident
when deceased Suraj was brought to LBS hospital, his wife/ PW- 11 was already present there and talked to him who informed her that accused Rohit S/o Lanka had inflicted knife injury to him. It is further the case of prosecution that the deceased became AKASH by AKASH JAIN Digitally signed JAIN Date: 2024.09.04 17:18:18 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 28 of 37 unconscious after some time due to severe loss of blood and succumbed to his injuries during the night hours on same day. It is thus, argued that the statement given by him to his wife immediately before his death shall be considered as his dying declaration.
55.2 In Sham Shankar Kankaria v. State of Maharashtra , (2006) 13 SCC 165, Hon'ble Supreme Court of India discussed the law relating to dying declaration in detail as under:-
".... 10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Digitally signed AKASH by AKASH JAIN Date:
JAIN 2024.09.04 17:18:24 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 29 of 37 Paniben v. State of Gujarat (1992) 2 SCC 474 (SCC pp.480 -8 1, para 18) (Emphasis supplied)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
(See Munnu Raja v. State of M.P.,(1976) 3 SCC 104)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar, (1983) 1 SCC 211)
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor,(1976) 3 SCC 618)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.,(1974) 4 SCC 264 )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P., 1981 Supp SCC 25)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.,(1981) 2 SCC 654)...."
55.3 In the light of the above principles, the acceptability of the alleged dying declaration in the instant case given by deceased to his wife has to be considered. The relevant excerpt from testimony of PW-11/ Baby is reproduced as under for reference and proper appreciation:-
".... I do not remember the date of incident and month according to English Calender. However the incident was of Saawan month in the year 2017. It was Sunday. On the date of incident at about 11 AM, Satya Prakash (brother of my Mama Shrinath) informed me by phone that Rohit had inflicted knife injury to my husband Suraj AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:18:30 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 30 of 37 in Block No. 32, Trilokpuri. Satya Prakash also informed me that my husband was taken to LBS Hospital. Thereafter, I along with my younger sister reached at LBS Hospital. I had a talk with my husband in LBS Hospital. My husband informed me that accused Rohit who is son of lady Lanka had inflicted knife injury to him. Accused Rohit was having enmity with one Sunny Bhanda. Sunny Bhanda was having friendly relation with my husband. Due to this reason, for taking revenge, accused Rohit had inflicted knife injury to my husband. This fact was disclosed to me by my husband at LBS Hospital. During the night hours my husband expired in the hospital...."
55.4 Having carefully gone through the statement of PW- 11/ Baby and testimonies of material public witnesses besides other evidence on record, this Court is of the view that the alleged dying declaration given by deceased Suraj to his wife/ PW-11 Baby does not inspire confidence, appears to be suspicious and lacks corroborative value for the following reasons:-
(i) PW-11/ Baby deposed in her testimony that she was informed on phone by PW-16 Satya Prakash that accused Rohit @ Deepak had inflicted knife injury to her husband Suraj in Block No. 32, Trilok Puri. However, during cross-examination by Ld. Counsel for accused, she improvised her statement and stated that she did not receive any phone call from PW-16 Satya Prakash and rather he had personally informed her about the incident.
(ii) PW-16 did not support the version of PW-11 and stated that on the day of incident at about 11:00 to 11:30 PM, he was present at his home and received phone call of PW-11/ Baby who informed him that her husband Suraj had expired. Digitally signed AKASH by AKASH JAIN Date:
JAIN 2024.09.04 17:18:36 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 31 of 37
(iii) PW-11 stated in her testimony that she along with her younger sister had reached the LBS hospital and had a talk with her husband there, however, there is no mention of younger sister of PW-11 in the entire charge-
sheet. She was neither examined nor made witness by the IO during investigation raising suspicion on the version of PW-
11.
(iv) As per the statement of PW-11/ Baby both complainant PW-12 Shrinath @ Sheshnath and PW-16 Satya Prakash were present at the hospital along with injured Suraj when she talked to her husband, however, both the witnesses did not support the testimony of PW-11.
(v) It was deposed by PW-11/ Baby in her statement that her deceased husband informed her that accused Rohit @ Deepak had enmity with one Sunny Bhanda who was having friendly relations with him (deceased) and due to this reason for taking revenge, accused Rohit @ Deepak inflicted knife injury upon the deceased. However, no investigation was carried out by the IO to corroborate the said fact. Neither Sunny Bhanda was traced out nor made witness by the prosecution raising further suspicion on the version of PW-11.
(vi) The version of PW-11/ Baby is further contradictory to the case of prosecution as it was reported by complainant Shrinath in tehrir that accused Rohit @ Deepak AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:18:42 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 32 of 37 had previous enmity with deceased Suraj on account of some financial transactions.
55.5 It is well settled that where a dying declaration is suspicious it should not be acted upon without corroborative evidence. In the present case where all the material eye-witnesses turned hostile and did not support the case of prosecution on vital aspects, the testimony of PW-11/ Baby qua alleged dying declaration given to her by her husband is very weak piece of evidence and shrouded with suspicion on account of reasons mentioned as above. In view of lack of corroborative evidence, the alleged dying declaration cannot form the sole basis of convicting the accused for the offences in question in the present case.
56. Motive 56.1 It is the case of prosecution that the accused had strong motive to commit the murder of deceased Suraj. In this regard, the prosecution relied upon the testimony of PW-11 Baby who deposed that her deceased husband informed her prior to his death that accused Rohit @ Deepak was having enmity with one Sunny Bhanda who was having friendly relations with him (deceased Suraj) and in order to take revenge, accused Rohit @ Deepak inflicted knife injury to the deceased.
56.2 It is already discussed above that the aforesaid statement of PW-11/ Baby is not creditworthy and lacks corroboration. Nothing cogent is further brought on record during investigation to support the claim of PW-11. Neither Sunny Bhanda was traced by the IO nor made witness. Moreover, AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:18:48 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 33 of 37 material eye-witnesses of prosecution did not support its case and belied the version of PW-11/ Baby. As such, it could not be proved by prosecution that accused Rohit @ Deepak had any motive to kill deceased Suraj.
57. (iii) Recovery of blood stained weapon of offence;
and
(iv) Recovery of blood stained clothes.
57.1 Both the aforesaid points are taken up together as they
are inter-connected and entail common discussion. It is the case of prosecution as also deposed by PW-18 Retd. SI Bengali Babu, PW- 22 Ct. Deepak and PW-23 IO/ Inspector Rajinder Singh that on 24.07.2017 all of them being joined by complainant/ PW-12 Shrinath reached at Block No. 13, Kalyan Puri, near Chand Cinema in search of the accused and accused Rohit @ Deepak was found coming from under construction metro station site. It is further the case of prosecution that at the instance of complainant Shrinath accused Rohit @ Deepak was apprehended by the police officials and Ct. Deepak carried out his personal search in which one blood stained buttondar knife was recovered from the pocket of his jeans pant. It is further the case of prosecution that the DNA profile generated from the knife was found to be similar with the DNA profile of deceased in terms of FSL report Ex. PW 8/A. 57.2 It is though pertinent to note that PW-12 Shrinath did not support the case of prosecution and categorically stated that accused Rohit @ Deepak was not apprehended at his instance and that no knife was recovered from the personal search of accused.
AKASH Digitally signed
by AKASH JAIN
JAIN Date: 2024.09.04
17:18:54 +0530
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He further stated that he was not present at the time of arrest and search of the accused and that police obtained his signatures on 4-5 papers. The police apparently not joined any other independent public witness at the time of arrest and personal search of accused. Thus, the alleged recovery of knife from the possession of accused Rohit @ Deepak is shrouded with suspicion. Reliance is placed upon the cases of Anoop Joshi v. State, 1992 (2) C.C. Cases 314 (HC) and Roop Chand v. State of Haryana, 199 (1) CLR 69. It is also relevant to note that constable Deepak who allegedly carried out personal search of accused did not offer his own search to the accused, as such, possibility of planting the knife upon the accused by the police cannot be ruled out. Reliance is placed upon the case of Rabindranath Prusty v. State of Orissa, 1984, CriLJ 1392.
57.3 Mere fact that blood stains found on the knife were matched with DNA profile of the deceased is not sufficient for convicting the accused for alleged offence of murder as the recovery of knife in itself is fraught with suspicion and there is no autopsy report on record which suggests that the death of deceased Suraj was caused by the same knife as recovered by the police in the case in hand. Here, it is also apposite to refer to the judgment of Mustkeen v. State of Rajasthan, AIR 2011 SC 2769, wherein Hon'ble Supreme Court of India was pleased to observe that:-
".... 23. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of the Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:19:01 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 35 of 37 traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder...."
57.4 As regards recovery of blood stained clothes, it is the case of prosecution that at the time of arrest of accused Rohit @ Deepak, he informed that he was wearing the same clothes which were worn by him at the time of incident. As such, his clothes i.e. one yellow colour full sleeves T-shirt having black sleeves and blue colour jeans were seized by the police vide seizure memo Ex. PW 18/J. It is though relevant to note that aforesaid seizure of clothes of accused is also fraught with suspicion as the only public witness to the seizure i.e PW-12 Shrinath failed to support the case of prosecution and categorically stated that no clothes of accused were seized in his presence.
57.5 Even otherwise, pursuant to FSL report Ex. PW 8/A, no DNA profile could be generated from the aforesaid clothes of accused which could be matched with that of deceased Suraj. Thus, the alleged recovery of blood-stained clothes from the accused would also not be sufficient to bring home the guilt of accused.
Conclusion
58. Keeping in view the totality of facts, circumstances and observations as above, it is held that prosecution failed to prove beyond reasonable doubt that accused committed murder of deceased Suraj, as alleged. The evidence adduced in the case is not consistent with the hypothesis of the guilt of the accused. All the AKASH Digitally signed by AKASH JAIN JAIN Date: 2024.09.04 17:19:07 +0530 FIR No:- 267/2017 State v. Rohit @ Deepak Page No. 36 of 37 material eye-witnesses of prosecution turned hostile and did not support its case. Moreover, the testimony of wife of deceased i.e. PW-11 regarding dying declaration was found to be suspicious and lack corroborative value. In these circumstances, the case left hanging on circumstantial evidence and the standard necessary for recording a conviction on the basis of circumstantial evidence could not be achieved in this case by the prosecution.
59. Hence, accused Rohit @ Deepak S/o Sh. Naresh is acquitted of the offences under Section 302 IPC as well as Section 25/27 of Arms Act as alleged against him. Bail bonds furnished by accused under Section 437-A Cr.P.C. is extended for a period of 6 months from today.
60. File be consigned to record room after due compliance. Digitally signed by AKASH JAIN AKASH Date:
JAIN 2024.09.04
17:19:14
+0530
DICTATED AND (AKASH JAIN)
ANNOUNCED IN OPEN ASJ-04, EAST DISTRICT
COURT ON 31.08.2024 KARKARDOOMA COURTS
DELHI
This judgment contains 37 pages and each paper is signed by me.
Digitally
signed by
AKASH AKASH JAIN
Date:
JAIN 2024.09.04
17:19:19
+0530
(AKASH JAIN)
ASJ-04, EAST DISTRICT
KARKARDOOMA COURTS
DELHI
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