Delhi District Court
Decisions. In Parbin Ali & Anr vs State Of Assam, Decided On 7 on 15 February, 2023
IN THE COURT OF MS DEEPALI SHARMA :
ADDITIONAL SESSIONS JUDGE -04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET01-001736-2013
SC No. 1052/2016
FIR No. 486/2013
U/s 302/201/34 IPC
P.S. Mandawali
State
versus
1) Karan Verma
s/o Late Sh. Ajit Kumar,
R/o H.No. U-103A, Shakarpur, Delhi.
2) Kamal Kumar,
S/o Gopal Babu,
R/o H.No. 203, Bihari Pura,
Near Sarvodaya Public School,
Ghaziabad, UP.
3) Parvinder Singh Yadav,
S/o Sh. Rambir Singh Yadav,
R/o H.No. F-44/770, Ganesh Nagar-II,
Shakarpur, Delhi-110092.
Date of Institution : 24.01.2014
Date of reserving Judgment : 06.02.2023
Date of pronouncement : 15.02.2023
Appearances
For the State : Shri. Ajit Kumar Shrivastava,
Learned Special Additional
Public Prosecutor.
For the accused persons : Shri Kanhaiya Singhal,
Advocate,counsel for accused
Karan Verma.
SC No. 1052/2016 Page 1 of 119 ASJ04/KKD/Delhi
Shri Sudhakar Singh,
Advocate, Legal Aid counsel
for accused Kamal Kumar.
Shri Sanjeev Kumar, Advocate
counsel for accused Parvinder
Singh Yadav.
JUDGMENT
1. Briefly stated facts of the present case are that on 16.09.2013, at 11.05 pm, an information was received by the Duty Officer PS Mandawali vide DD No. 56A Ex.Z-1 that one person was lying unconscious near Pappu Halwali, A Block, South Ganesh Nagar. The said DD No. 56A Ex. Z-1 was assigned to SI Virender Kumar. SI Virender Kumar alongwith Const. Satyawan reached at the spot where upon inquiry it was revealed that the injured person had already been taken to LBS Hospital by a PCR van. On inquiry it was also found that a quarrel took place between some persons at A-456, Third Floor, South Ganesh Nagar, Delhi. Blood stains were found on the road and blood trail was also found on stairs to third floor of that flat. The door of the flat was open and no one was present there. Smell of liquor was coming from that flat. Blood was found lying on the floor immediately upon entering the flat. There was one empty bottle of liquor, few plastic glasses, black cigarette butts and blood was found beneath the mattress lying on the floor and upon it. One broken wooden stick was also found under the mattress. There was two bottles of cold drink and playing cards were also found scattered there. Crime Team was called at the SC No. 1052/2016 Page 2 of 119 ASJ04/KKD/Delhi spot. SI Virender reached LBS Hospital and collected the MLC No. 15481/2013 of injured Yogesh and he was found unfit for statement. Thereafter SI Virender reached the spot and the Crime Team inspected the spot and collected exhibits from the spot and also took photographs.
2. SI Virender prepared the rukka on the basis of above information and the present FIR was registered under section 307 IPC bearing FIR No. 486/2013 dated 17.09.2013 vide Ex. PW10/A. Subsequently, information was received at about 03.30 am vide DD No. 8B that the injured had passed away. Accordingly, section 302 IPC was added. The exhibits lifted from the spot were seized by the IO and were deposited in the malkhana at PS Mandawali. Site plan was prepared. Police inquired about any eye witness and also from the people nearby, however, nothing was revealed. IO went to the hospital and the address of deceased was revealed from MLC in Vaishali, Ghaziabad, and subsequently SI Virender reached Vaishali, Ghaziabad, and it was found that the name of deceased was Yogesh r/o B-2, Sadhana Apartment, Vaishali, Ghaziabad and that his wife used to reside in Haryana. His wife was contacted and she reached the police station late in the evening. The post- mortem of the deceased was got conducted on 18.09.2013 and the dead body was handed over to his wife Sarita Gupta. During inquiry, wife of the deceased informed that deceased Yogesh used to work in MCD and used to carry papers related to MCD work. He used to keep the said papers in a bag in his car bearing registration no. DL-9CM-3003 and he used to have his mobile SC No. 1052/2016 Page 3 of 119 ASJ04/KKD/Delhi phone and ID proof alongwith one Titan watch.
3. During further inquiry one eye witness namely Prashant Kumar r/o Flat No. A-456, Third Floor, South Ganesh Nagar, Delhi, was found, who informed that on 16.09.2013 he reached his house at around 10-10.30 pm and on the same floor in a flat Karan Verma alongwith 2-3 associates had been coming regularly and used to sit and drink in the flat. Prashant had also spoken to Karan Verma occasionally and he informed the police that he could show the house of Karan Verma. He also informed that on the date of incident Karan was beating Yogesh badly with fists and legs and it seemed that both Karan and Yogesh were drunk. Thereafter, Prashant went inside his room and called the PCR. Subsequently, upon pointing of PW Prashant, accused Karan Verma was arrested from his house at U-103A, Shakarpur, Delhi, who disclosed that Parvinder had taken a flat on rent bearing Flat No. A-456, Third Floor, South Ganesh Nagar, where he used to go and drink and gamble alongwith Parvinder and Kamal, who was a resident to Ghaziabad, UP. Yogesh also used to come there occasionally. On 16/17.09.2013 at night all four were drunk and gambled and Yogesh lost 2-3 thousand rupees and at that a quarrel took place and Parvinder and Kamal had beaten Yogesh with legs and fist blows. Karan gave him beatings with a wooden stick lying there and Yogesh was beaten on the staircase and pushed due to which he fell from the staircase and reached the ground and they followed him, where Parvinder hit Yogesh on his head with a brick, due to which Yogesh fell down. Parvinder took out his purse and mobile phone and Kamal took SC No. 1052/2016 Page 4 of 119 ASJ04/KKD/Delhi his watch and then Karan Verma took the Esteem car of Yogesh, which was parked near the Railway Line. At the time of incident Yogesh had grabbed the leg of Karan Verma, due to which the blood oozing out from his nose and head got smeared on the pant of Karan Verma, which was got recovered by accused Karan Verma from his house. At the instance of accused Karan Verma, car of the deceased bearing registration No. DL-9CM-3003 alongwith a bag containing papers was recovered, which was seized by the IO. At the instance of accused Karan Verma during police remand Kamal Kumar was apprehended from his house and from whom the Titan watch of the deceased was recovered. During investigation accused Parvinder, who was BC of police station Shakarpur, was also searched.
4. During investigation ASI Dharamvir, who had got the deceased admitted in the hospital, informed upon inquiry that when the deceased was conscious, he had informed that Parvinder and his companions had beaten him. On 16.10.2013 accused Parvinder was arrested under section 41.1(B) Cr.P.C. by HC Shiv Kumar, PS Burari, and subsequently accused Parvinder was arrested in the present case. During investigation, accused Parvinder pointed out the place of incident and the place where he had thrown the purse and mobile phone of the deceased and from where PAN card bearing no. AGUPC2169A and a first page of the cheque book was got recovered and the same was seized by the IO. The disclosure statement of accused Parvinder was recorded.
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5. The exhibits of the case were sent to FSL Rohini for evaluation and analysis. The postmortem report was received as per which the cause of death was cerebral damage with shock consequent upon multiple injuries caused by blunt force impact by hard object/weapon. All injuries were ante mortem in nature and recent in duration. Injury No. 1 to 18 were collectively sufficient to cause death in ordinary course of nature. Deceased had consumed ethyl alcohol prior to his death, 192.8 mg per hundred ml of blood.
6. During investigation the wife of the deceased Smt. Sarita had complained that one Rajinder Gupta had given a cheque of Rs. 7,90,000/- to deceased Yogesh on 12.09.2013, however, the said cheque was not found in the car of the deceased and the bag found therein. It was found that deceased Yogesh had filed a cheque bounce case for Rs. 2,00,000/- which was pending. After completion of investigation the charge sheet was filed by the IO under section 302/201/34 IPC.
7. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of offences under Section 302/201/34 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 10.01.2014 committed the case to the Court of Session for 24.01.2014.
Charge :
8. On 05.02.2014, after hearing the learned Additional SC No. 1052/2016 Page 6 of 119 ASJ04/KKD/Delhi Public Prosecutor for the State and Ld. counsels for accused persons, charge was framed against all accused persons namely Karan Verma, Kamal Kumar and Parvinder Singh for commission of offence punishable under Section 302/34 IPC. The charge so framed was read over and explained to all the accused persons to which they did not plead guilty and claimed trial.
Prosecution Witnesses :
9. In support of its case, prosecution has examined 34 following witnesses :
i) PW1 Sandeep Kumar deposed about making a call at 100 number from his mobile phone no. 9350986100 regarding a man lying on the road unconscious near the Chauraha at A Block, in the month of October-November 2013. He could not remember the date on which he made the call, however, he stated that he had made the call at about 10.30-11.00 pm when he had seen the injured lying there.
ii) PW2 W/Const. Ravita. She proved the PCR form Ex. PW2/A regarding a call at 11.01 pm on 16.09.2013 from A-
458, South Ganesh Nagar, near Pappu Halwai, Delhi, that one person was lying injured there.
iii) PW3 W/Const. Sunila. She proved the PCR form Ex. PW3/A regarding a call at about 11.11 pm on 16.09.2013 regarding a quarrel and injured at house No. A-456, South Ganesh Nagar, Gali No. 9, near Bajaj Showroom. She SC No. 1052/2016 Page 7 of 119 ASJ04/KKD/Delhi dispatched the call at 11.13 pm to PS Mandawali for further necessary action.
iv) PW4 Prashant Kumar an eye witness of incident.
v) PW5 Dr. Vinay Kumar Singh, who proved the postmortem report Ex. PW5/A and subsequent opinion regarding cause of death Ex. PW5/B.
vi) PW6 ASI Dharamvir, who deposed that he took the injured to LBS Hospital in PCR van in semi-unconscious condition and the injured revealed to him that his name was Yogesh s/o Rajender, r/o Vaishali, Ghaziabad. He also told PW6 that Parvinder, Kamal and Karan, who were his friends, had beaten him.
vii) PW7 HC Sonu Kaushik - Assistant Draftsman. He proved the scaled site plan of spot Ex. PW7/A.
viii) PW8 R.K.Singh, Nodal Officer of Bharti Airtel Limited. He proved CAF, call details record (CDR), Cell ID Chart of mobile no. 9910917889 as Ex. PW8/A, PW8/B and PW8/C respectively and certificate under section 65B of the Indian Evidence Act as Ex. PW8/D. As per record the said mobile phone was in the name of Sarita Chaudhary w/o Yogesh Chaudhary.
ix) PW9 SI Kaushal Ganguly, Incharge Crime Team, SC No. 1052/2016 Page 8 of 119 ASJ04/KKD/Delhi proved Scene of Crime (SOC) report Ex. PW9/A.
x) PW10 HC Uttam Chand, Duty Officer. He proved the copy of FIR and his endorsement on rukka as Ex. PW10/A and PW10/B respectively.
xi) PW11 Const. Ashok Kumar was one of the members of Crime Team, who lifted chance prints from empty bottles of Royal Stag Whiskey from the scene of occurrence.
xii) PW12 Const. Manoj Kumar. He took 12 photographs of spot and proved the same as Ex. PW12/P-1 to P- 12 and their negatives as Ex. PW12/P-13 to P-24.
xiii) PW13 Dr. Sachin, who medically examined injured Yogesh vide MLC Ex. PW13/A. xiv) PW14 Const. Satya Narayan was one of the
members of Crime Team and took 10 photographs of the car Ex. PW14/A1 to A10 and their negatives as Ex. PW14/B1 to B10.
xv) PW15 Naveen Kumar, Assistant Ahlmad in the court of Dr. Jagminder Singh, Ld. M.M., who proved the Kalandra under section 41.1 Cr.P.C. of accused Parvinder as Ex. PW15/A, which was disposed of vide order Ex. PW15/B. xvi) PW16 Sunita Sharma, w/o Sandeep Sharma, who produced the GPA of Flat No. A-456, Third Floor, South Ganesh SC No. 1052/2016 Page 9 of 119 ASJ04/KKD/Delhi Nagar, Delhi, in the name of her husband Sandeep Sharma as Ex. PW16/A and a rent agreement Ex. PW16/B. xvii) PW17 Const. Anil Kumar - took the exhibits to FSL on 21.10.2013 vide R.C. No. 2971 and deposited the same there and took the acknowledgement and handed over the same to the MHC(M).
xviii) PW18 Amarnath Singh, Nodal Officer, Idea Cellular Ltd., proved customer application form of mobile no. 9540964572, its call details, its location ID chart and certificate under section 65B of Evidence Act as Ex. PW18/A to Ex. PW18/D. The said mobile number was registered in the name of Ajit Kumar Singh.
xix) PW19 Israr Babu, Alternate Nodal Officer, Vodaphone Mobile Service Ltd., proved customer application form of mobile no. 9582730131, its CDR and certificate under section 65B of Evidence Act as Ex. PW19/A to Ex. PW19/C. The said mobile number was registered in the name of Neha, d/o Adarsh. He also proved customer application form of mobile no. 9582223736, its CDR and certificate under section 65B of Evidence Act as Ex. PW19/D to Ex. PW19/F. The said mobile number was registered in the name of Kamal Kumar.
xx) PW20 Sarita - wife of deceased Yogesh. xxi) PW21 HC Shiv Kumar, who was posted at PS Burari SC No. 1052/2016 Page 10 of 119 ASJ04/KKD/Delhi
on 16.10.2013, deposed about arrest of accused Parvinder under section 41.1 Cr.P.C. of PS Burari and gave the information about the same to PS Mandawali vide DD No. 41B dated 16.10.2013.
xxii) PW22 ASI Joginder Singh, who was posted at PS Burari on 16.10.2013, deposed about arrest of accused Parvinder under section 41.1 Cr.P.C. of PS Burari and the information about the same was given to PS Mandawali vide DD No. 41B dated 16.10.2013.
xxiii) PW23 Const. Narender was one of the members of Crime Team and he tried to lift chance prints from beer bottles, water bottles and rear view mirror of Esteem car no. DL-9CM- 3003, but no chance prints could be developed.
xxiv) PW24 Insp. Vijay Kumar joined investigation with the IO/Insp. O.P.Sinha and SI Virender on 18.09.2013 and reached mortuary of LBS Hospital for postmortem of the deceased Yogesh. Identification statement of Naresh Kumar and wife of deceased were recorded by SI Virender in his presence vide Ex. PW20/A. He wrote request letter for conducting postmortem of the body of the deceased vide Ex. PW24/A and collected the exhibits of the deceased, which were handed over to him by the doctor and were seized vide seizure memo Ex. PW24/B. Thereafter the body of the deceased was handed over to wife and brother of the deceased vide memo Ex. PW20/B. The sealed exhibits were deposited by him in the malkhana.
SC No. 1052/2016 Page 11 of 119 ASJ04/KKD/Delhi xxv) PW25 Monika Chakrabarti, Senior Scientific Assistant (Bio), FSL, Rohini, Delhi, proved her detailed Biological report Ex. PW25/A and Serological report Ex. PW25/B. xxvi) PW26 Const. Sunil Kumar. He deposed that on 17.10.2013 he alongwith IO/Insp. Om Prakash reached Tis Hazari Courts where accused Parvinder was produced before the concerned court in Kalandara under section 41.1(B) Cr.P.C. of PS Burari. After taking permission from the court, accused Parvinder was arrested by the IO vide arrest memo Ex. PW26/A and IO recorded his disclosure statement vide Ex. PW26/B. xxvii) PW27 W/Const. Satesh joined investigation with the IO and deposed about seizure of documents Ex. PW16/A, Ex. PW16/B and Mark-A from Ms. Sunita Sharma relating to tenancy and ownership, by IO vide seizure memo Ex. PW27/A. xxviii) PW28 ASI Rakesh Kumar - MHC(M), proved entires in register no. 19 as Ex. PW28/A to Ex. PW28/H. xxix) PW29 Surabhi Sharma Vats, Ld. Metropolitan Magistrate, recorded statement of witness Prashant Kumar Ex. PW4/B. She also proved documents Ex. PW29/A to Ex. PW29/C. xxx) PW30 Harshvardhan, ex-SI and one of the members of Crime Team, who alongwith Ct. Narender (Finer print SC No. 1052/2016 Page 12 of 119 ASJ04/KKD/Delhi proficient) and Ct. Satya Narayan (photographer) reached at PS Mandawali and upon instructions of the IO inspected vehicle bearing registration no. DL-9CM-3003, which was parked at PS Mandawali. He proved the Scene of Crime report Ex. PW30/A of inspection of vehicle bearing registration no. DL-9CM-3003, which was parked in the premises of PS Mandawali in which seven bear bottles and two water bottles were found.
xxxi) PW31 ASI Prakash Chand took sealed exhibits from MHC(M) and deposited the same at FSL Rohini on 21.10.2013. He handed over the acknowledgement given by FSL Rohini to MHC(M).
xxxii) PW32 HC Rajeshwar - joined investigation with the IO and proved documents Ex. PW32/A to PW32/K and also case property.
xxxiii) PW33 SI Virender Kumar - joined investigation with IO Insp. O.P.Sinha.
xxxiv) PW34 Insp. O.P.Sinha - IO of the case.
10. During trial Ld. Counsels for accused persons did not dispute genuineness of DD No. 56A dated 16.09.2013 and as such same was exhibited as Ex. Z1.
Statements of accused persons :
11. After conclusion of prosecution evidence, statements SC No. 1052/2016 Page 13 of 119 ASJ04/KKD/Delhi of the accused persons under Section 313 Cr.P.C were recorded wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them. Accused persons further stated that they have been falsely implicated in this case.
12. Accused Parvinder Singh further stated that on 16.09.2013 he was at his home and he had no concern with the present case. PW4 was a planted witness. His signatures were taken by the police officials on blank papers. The rent agreement Ex. PW16/B was a fabricated one.
13. Accused Karan Verma further stated that PW4 Prashant Kumar was not residing at A-456, Third Floor, South Ganesh Nagar. There was no evidence that he was working as a Data Analyst and that his duty hours were from 11.30 am to 8.30 pm. PW4 was a planted witness. PW4 identified him at the behest of IO. PW4 has deposed falsely and had made a false statement under section 164 Cr.P.C. The case property was tampered with. He stated that he had not committed any crime and he was present at his home on the relevant date. No recovery was effected either from him or at his instance including recovery of pants or Esteem Car. The pant did not belong to him. At the relevant time his waist size was 32-34 inches whereas the pant produced before the court had waist size of 28 inches. He did not make any disclosure or supplementary disclosure statement. His signatures were obtained on blank papers, which were later converted into incriminating documents. The case property was SC No. 1052/2016 Page 14 of 119 ASJ04/KKD/Delhi not duly preserved and was tampered with to facilitate false allegations. IO did not conduct fair investigation.
14. Accused Kamal Kumar further stated that he was not present at the spot at the time of incident. On 16.09.2013 he was at his home. PW20 has deposed falsely.
15. Accused Parvinder Singh and Karan Verma preferred to lead defence evidence and they examined DW1 Sudhanshu Shekhar, DW2 SI Uday Veer and DW3 SI Neha Chaudhary. DW2 produced document Ex. DW2/1 and DW3 produced document Ex. DW3/1.
Arguments :
16. It is argued by ld. Counsels for the accused persons that PW4 is a planted witness. It is also argued that the purported dying declaration made to PW6 ASI Dharamvir cannot be relied upon by the prosecution as the same was not made before a competent authority and Yogesh was already unconscious when he made the alleged dying declaration. It is stated that the arrest of the accused persons was not made in the alleged manner and the recoveries have been planted upon them. It is argued that the accused persons have been falsely implicated in the present case to save the real culprits. It is also urged by ld. Counsel for accused Parvinder that at the highest the present case would fall under section 304 IPC and not under section 302 IPC as the injuries were caused to deceased Yogesh in a sudden quarrel on a spur of moment and thereby attracting Exception 4 of section 300 SC No. 1052/2016 Page 15 of 119 ASJ04/KKD/Delhi IPC, which would fall under section 304 IPC. The arguments of the ld. Counsels for the accused persons have also been discussed in detail herein below.
17. On the other hand, it is contended by Ld. Special Addl.P.P. for the State that the charges against the accused persons stand proved by the testimony of eye witness PW4, testimony of PW6 ASI Dharamvir, to whom the deceased had given a dying declaration naming all the accused persons, the medical evidence, which corroborates the testimony of PW4 with the injuries found on the deceased. It is urged that since it is a case of direct evidence in the form of testimony of PW4, no separate evidence of motive of the offence is required to be proved separately. It is stated that undue weightage cannot be given to the testimony of PW20, who was not an eye witness to the incident. That even though no weapon was used, however, the accused persons had brutally beaten the deceased with legs, fists, bricks and danda and thereby caused death of deceased, hence, in these circumstances charges against the accused persons are proved beyond reasonable doubt and they are liable to be convicted for the offence they are charged with.
18. Prosecution has relied upon the following evidence to prove its case:
(i) PCR calls regarding the incident and registration of FIR based on DD no 56A, Ex. Z1:
19. On 16.09.2013 PW2 W/Const. Ravita, who was SC No. 1052/2016 Page 16 of 119 ASJ04/KKD/Delhi working at PHQ CPCR as an operator, received a call at about 11.01 pm from mobile no. 9350986100 from A-458, South Ganesh Nagar, near Papu Halwai, New Delhi, that one person was lying injured there. The PCR form is Ex. PW2/A. The name of the informant as per Ex. PW2/A is Sandeep Kumar.
20. As per Ex. PW2/A, the information as filled in by wireless staff in Part-II of the said PCR form records that the message was transmitted to ROM No. 48 on 16.09.2013 at 23:05:51. The van reporting time is 17.09.2013 at 00:00:34 and report received from van is at 17.09.2013 at 00:00:35 "RCD 5 MIN CALL IS TRUE CALLEKO USKE SATHI PEETKAR BHAG GAYE JISE LBS HOS ME D/CT KE HAWALE HOSH ME KIYA".
21. In this regard PW1 Sandeep Kumar, who is the caller mentioned in PCR form Ex. PW2/A, deposed that in the month of October/November in 2013 between 10 to 11 pm he was returning to his house with his wife and noticed a man lying unconscious on the road near Chowraha at A-Block. 4-5 public persons were present there and he made a call at 100 number from his mobile no. 9350986100 i.e. the mobile number mentioned in Ex. PW2/A. However, he was unable to confirm if the date was 17.09.2013 when he had seen injured Yogesh lying near the crossing / Chowraha A-498, South Ganesh Nagar, Delhi.
22. Another PCR call was received on 16.09.2013 at 23:11:21 pm by PW3 W/Const. Sunila regarding a quarrel and an SC No. 1052/2016 Page 17 of 119 ASJ04/KKD/Delhi injured at H.No. A-456, South Ganesh Nagar, Gali No. 9, near Bajaj Showroom. PW3 dispatched the call at about 11.13 pm to PS Mandawali for further action. She filled up the PCR form Ex. PW3/A. As per Ex. PW3/A the name of the informant was Prashant Kumar, who made call from mobile no. 9136665952 regarding complaint of quarrel.
23. On 16.09.2013, at 11.05 pm, an information was received by the Duty Officer PS Mandawali vide DD No. 56A Ex.Z-1 that one person was lying unconscious near Pappu Halwali, A Block, South Ganesh Nagar. The said DD No. 56A Ex. Z-1 was assigned to SI Virender Kumar. SI Virender Kumar alongwith Const. Satyawan reached at the spot and conducted the investigation and thereafter rukka Ex. PW33/A was prepared and FIR No. 486/2013 was registered under section 307 IPC vide Ex. PW10/A.
(ii) Testimony of eye witness Prashant Kumar PW4 :
24. Prashant Kumar was examined as PW4. He deposed that he was residing at H.No. A456, Third Floor, South Ganesh Nagar, Delhi, and his friend Rohan was also residing with him. PW4 used to work at RBS Bank Pvt. Ltd. as Data Analyst and his duty hours were from 11.30 am to 8.30 pm. On 16.09.2013 he returned from his duty to his room at about 9.30 pm. He was sitting in his room situated at third floor and at that time he heard screaming noise from outside. He came to his balcony and saw that four persons were beating one person. At that time the faces of the offenders were not clearly visible as they were at a SC No. 1052/2016 Page 18 of 119 ASJ04/KKD/Delhi distance of about 50 meters from there and there was no electricity light there. Thereafter he noticed that the said four persons started assaulting that one person with bricks. He went inside his room to bring his mobile phone and he called the police at 100 number from his mobile no. 9136665952 i.e. the mobile number mentioned in PCR form Ex. PW3/A. He also saw that after giving beatings to the said person, whose name was later told to be Yogesh, three of the accused persons dragged Yogesh to just near the flat of PW4 and thereafter all the three offenders started again assaulting Yogesh near his flat. At that time there was sufficient light. PW4 saw the three assailants properly but he could not see the face of the fourth assailant. PW4 identified the three accused persons present before the court as Karan Verma, Parvinder Singh and Kamal Kumar. PW4 later came to know the name of injured person as Yogesh as informed by the police and also that he had expired. PW4 also deposed that when he noticed that the accused persons were assaulting the injured with bricks, he had raised an alarm and resisted them not to assault him but the accused persons kept on assaulting him. His statement was recorded by the IO on 18.09.2013. Accused Karan Verma was arrested on 18.09.2013 vide his arrest memo Ex. PW4/A. He also proved his statement recorded by the Ld. M.M. as Ex. PW4/B. He stated that he could not identify the fourth offender as he could not see his face properly as it was dark at the place where one person was being beaten by four offenders and thereafter three offenders had taken the injured person in the light and then he saw the three assailants properly over there.
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25. PW4 was cross-examined by Ld. Addl.P.P. for the State as he was resiling from his earlier statement given to the police and he deposed that he had stated in his statement before the Ld. M.M. that the four offenders, who were beating the injured, appeared to be under influence of liquor. He had noticed that the accused persons and the fourth offender were assaulting the injured with bricks on his head. He affirmed that he had stated in his statement Ex. PW4/B that accused Karan Verma had recently shifted in a flat adjacent to his and smell of alcohol used to come from the said flat and noise of commotion (chillam- chilli) could also be heard. PW4 affirmed that he had called the police at 100 number and police reached there. At that time, the injured, whose name was later known as Yogesh, was in conscious condition and was talking. Blood was lying scattered at the spot and crime team also reached there and conducted the proceedings at the spot. PW4 affirmed that he had stated in his statement Ex. PW4/B that he informed the police that accused Karan Verma had recently shifted to the adjacent flat and that during conversation he had told his address to be C-Block, Shakarpur, Delhi. He affirmed that he was called by the police telephonically and he had reached police station from where he alongwith police reached the house of Karan Verma at Shakarpur and upon his identification accused Karan Verma was arrested from his house vide arrest memo Ex. PW4/A.
26. It is stated by Ld. Addl.P.P. for the State that PW4 is an eye witness of the incident and he made a call to the police on SC No. 1052/2016 Page 20 of 119 ASJ04/KKD/Delhi 100 number vide Ex. PW3/A regarding a quarrel at 23:11:21 hours on 16.09.2013. As discussed, another call was made by PW1 Mr. Sandeep Kumar on 16.09.2013 at 23:01:17 hours vide Ex. PW2/A.
(iii) Dying declaration of deceased Yogesh:
27. It is stated by Ld. Addl.P.P. for the State that the deceased Yogesh gave a dying declaration before PW6 ASI Dharamvir since this statement given to PW6 relates to the cause of death of deceased, as such it is admissible in evidence under section 32 of the Evidence Act. Section 32 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. PW6 ASI Dharamvir deposed that on the intervening night of 16/17.09.2013 he was Incharge PCR van and he received two calls at about 11.06 pm and 11.15 pm that one person was lying unconscious in front of shop of Pappu Halwai in South Ganesh Nagar, Delhi. He reached there and found that one person was lying in injured condition. He was semi-unconscious at that time and he told PW6 that his name was Yogesh s/o Sh. Rajender, r/o Vaishali, Ghaziabad. He also told PW6 that Parvinder, Kamal and Karan, who were his friends, had beaten him. PW6 took Yogesh to LBS Hospital in injured condition and he was admitted there. At that time also Yogesh was in semi-unconscious condition. Later, IO recorded his statement.
(iv) Medical Evidence : SC No. 1052/2016 Page 21 of 119 ASJ04/KKD/Delhi
28. Injured Yogesh was medically examined at LBS Hospital on 16.09.2013 vide MLC Ex. PW13/A. In this regard, PW13 Dr. Sachin deposed that on that day one Yogesh aged about 38 years was brought by ASI Dharamvir for his medical examination and was examined vide MLC Ex. PW13/A and thereafter Yogesh was referred to Surgery Department for further management and opinion. He was having following injuries:
I) Lacerated wound (left cheek) 4x4 cm. ii) Nasal bleed iii) Upper lip wound inner aspect. iv) Bluish contusion on left eye.
Injured was also having smell of alcohol in his breath.
29. Injured Yogesh expired in the hospital and information regarding death of the injured was received vide DD No. 8B at about 3.30 am and accordingly section 302 IPC was added.
30. On 18.09.2013 PW5 Dr. Vinay Kumar Singh, conducted postmortem on the dead body of deceased Yogesh vide postmortem report No. 387/2013 Ex. PW5/A. On examination following external injuries were found :
i) Bruise, 6.8x4 cms, around left eye, red colour.
ii) Stitched lacerated wound 4.6x0.5 cms, obliquely placed over left cheek 2.5 cms below eye.
iii) Bruise, 7x4 cms, present over right cheek, 1.5 cms away from ear, reddish colour.
iv) Bruise, 24x16 cms, over dorso lateral aspect of right SC No. 1052/2016 Page 22 of 119 ASJ04/KKD/Delhi upper arm, red colour.
v) Lacerated wound, 1.5x1 cms over inner aspect at upper lip with surrounding bruise in area at 5x2.5 cms.
vi) Multiple bruises in area at 28x13 cms over dorso lateral aspect of right forearm, 'rail road pattern'.
vii) Multiple 'crecentric' abrasions in front (right arrow) sides at neck in area at 13x12 cms.
viii) Bruise, 45x2 cms over posterior aspect at left forearm with fracture at both radius and ulna with haemorrhage in surrounding tissue. Lower end.
ix) Multiple bruise, 33x12 cms over outer aspect at left upperarm.
x) Bruise, 28x10 cms over right side front at chest. 16 cms from midline.
xi) Bruise, 16x5.5 cms over front at right knee.
xii) Bruise, 20x4 cms, over middle front at leg.
xiii) Bruise, 14x11 cms, over right foot anterior aspect.
xiv) Bruise, 14x12 cms, over front at left knee.
xv) Bruise, 8.5x3 cms over front at left leg mid part. xvi) Bruise, 10.5x5 cms over front at left leg lower part. xvii) Bruise, 13x9.5 cms, over front at left foot. xviii) Bruise, 17x16 cms, over left side of back 9 cms from midline 24 cm.below shoulder.
As per postmortem report Ex. PW5/A, internal in- juries found on head of deceased Yogesh is a diffuse subscalpal haematoma all over. Skull was intact. SDH right side 14x9 cms with diffuse SAH all over.
SC No. 1052/2016 Page 23 of 119 ASJ04/KKD/Delhi
31. The opinion regarding cause of death was kept pend- ing and during his deposition PW5 stated that on 05.03.2014 af- ter receipt of request of subsequent opinion alongwith chemical analysis report of viscera Ex. C-1, he gave subsequent opinion after going through the postmortem report. PW5 opined that the cause of death was cerebral damage with shock consequent upon injuries caused by blunt force impact by hard object/weapon, all injuries were ante mortem in nature and recent in duration. In- jury No. 1 to 18 were collectively sufficient to cause death in or- dinary course of nature. Deceased had consumed Ethyl Alcohol prior to his death. 192.8 mg per 100 ml of blood was detected.
The subsequent opinion of PW5 is Ex. PW5/B.
(v) Articles seized from the spot:
32. The site plan was prepared by the IO at the pointing out of PW33 SI Virender Kumar vide Ex. PW33/B-1. The scaled site plan of the spot i.e. A-456, South Ganesh Nagar, Delhi, and adjoining area is Ex. PW7/A.
33. As deposed by PW33 on the intervening night of 16- 17.09.2013, he alongwith Const. Satyawan reached the spot. PW33 found blood stains on the road and also found one pair of brown colour sandal on the road and also one packet of cigarette containing 4-5 cigarettes. PW33 SI Virender Kumar alongwith Const. Satyawan proceeded for the third floor and he found blood trail on the stairs going towards third floor. When they reached SC No. 1052/2016 Page 24 of 119 ASJ04/KKD/Delhi the third floor, they found the door of one flat slightly open. Smell of liquor was coming from that flat. When they entered the floor, they found one kitchen on the right side, one room on the left side and there was also one store room in the flat. PW33 also found blood lying on the floor as they entered the flat. One mattress was found lying on the floor. Apart from the mattress, one empty liquor bottle of Royal Stag and one empty bottle of Maaza, one empty bottle of Coca-Cola, some cigarette butts, plastic disposable glass were found in the room. Three pieces of blood stained wooden sticks were found under the mattress and blood was also found under the mattress. It seemed that the aforesaid wooden sticks were used for beating and in that process, it might have been broken into pieces. Playing cards were also found scattered on the floor.
34. Crime team was called and the photographer Crime Team took the photographs of the spot on instructions of PW33 which are Ex. PW12/P-1 to P-12 and negatives of the same are Ex. PW12/P-13 to P-24.
35. PW33 handed over sealed exhibits having Sr. No. 1 to 16 to IO/Insp. O.P.Sinha, who seized the same vide Seizure Memo Ex. PW33/B and deposited in the malkhana by the IO. The said articles are as under :
1. One mattress which was blood stained with stripe of light brown and red colour (Ex. PW33/P-1).
2. Three pieces of wooden sticks having blood stains (Ex. PW33/P-2, Ex. PW33/P-3 & Ex. PW33/P-4). SC No. 1052/2016 Page 25 of 119 ASJ04/KKD/Delhi
3. One piece of floor tile having blood stains.
4. Concrete pieces lifted from the road having blood stains.
5. One plastic container containing concrete pieces of road without any blood stains.
6. Plastic container containing blood swab lifted from the spot.
7. Plastic box containing blood swab lifted from the stairs.
8. Plastic container containing blood swab lifted from the lobby.
9. One pair of brown colour leather male sandal.
10. One packet of cigarette having four cigarettes on which Diarum Black was written.
11. 9 butts of cigarettes, which were kept in a plastic container lifted from the spot.
12. One empty glass bottle of liquor labelled with Royal Stag.
13. One empty bottle of Maaza with lid.
14. One empty plastic bottle of Coca Cola with lid.
15. Six plastic glasses.
16. Two pack of playing cards.
All articles were collectively exhibited as Ex. PW33/P-5.
(vi) Arrest of accused persons and Recoveries effected at their instance:
36. As per the testimony of PW4 that upon inquiry by SC No. 1052/2016 Page 26 of 119 ASJ04/KKD/Delhi the police if he knew the house of accused Karan Verma, he told them that Karan Verma had recently shifted to the flat adjacent to his flat and during conversation with Karan Verma, he had told his address as C-Block, Shakarpur, Delhi. On 18.09.2013, PW Prashant was called by the police and he reached the police station and from the police station he alongwith the police reached the house of accused Karan Verma at Shakarpur and upon his identification accused Karan Verma was arrested from his house vide arrest memo Ex. PW4/A. In this regard PW32 HC Rajeshwar, PW33 SI Virender and PW34 Insp. O.P.Sinha have deposed that on 18.09.2013 they alongwith eye witness Prashant PW4 reached at H.No. U-103A, Shakarpur, Delhi, and found one person namely Karan Verma present there and he was apprehended upon the identification of eye witness Prashant. He was interrogated by the IO and his disclosure statement was recorded. In his disclosure statement he disclosed about the involvement of accused Kamal and Parvinder in the present case. In pursuance to his disclosure statement, accused Karan Verma also got recovered one light brown colour corduroy pant having blood stains stating that he was wearing the said pant at the time of incident. The stitches of the pant were found torn. The said pant was kept in a sealed pullanda and seized by the IO vide seizure memo Ex. PW32/A. After recording the statement of witness Prashant, he was discharged from the spot. Case property was deposited in the malkhana. Accused Karan Verma led the police to the spot i.e. H.No. 456A, third floor, South Ganesh Nagar and pointed out the place of incident vide pointing out memo Ex. PW33/C. SC No. 1052/2016 Page 27 of 119 ASJ04/KKD/Delhi
37. In the intervening night of 18/19.09.2013 at about 00.30 hours accused Karan Verma led the police to Slip Road near Railway Line Kudaghar, South Ganesh Nagar, Delhi, from where he got recovered one Esteem car bearing registration No. DL-9CM-3003 of silver colour. The car was seized vide memo Ex. PW32/B. The car was brought to the police station and was deposited in the Malkhana. Photographs of car were exhibited as Ex. PW32/L1 to Ex. PW32/L5.
38. Accused Karan Verma was medically examined and lodged in lockup and IO moved an application for police custody remand and two days police custody remand of accused Karan Verma was granted by the court.
39. On 20.09.2013, in pursuance of supplementary disclosure statement of accused Karan Verma Ex. PW32/D, he led the police to the house of accused Kamal Kumar at Biharipura, near Sarvodya Public School, Ghaziabd. At about 10.30/10.45 pm PW34 Inspt. O.P.Sinha alongwith accused Karan Verma, Const. Rajeshwar and SI Virender reached H.No. 203, Biharipura, near Sarvodya Public School, Ghaziabd, of co- accused Kamal Kumar, where accused Kamal Kumar was present alongwith his wife Seema. Accused Kamal Kumar was arrested vide arrest memo Ex. PW32/E and his personal search was conducted vide memo Ex. PW32/F and his disclosure statement was recorded vide Ex. PW33/D. Accused Kamal Kumar got recovered one old watch of make 'Titan" golden colour from his SC No. 1052/2016 Page 28 of 119 ASJ04/KKD/Delhi house, which was taken into possession and seized vide seizure memo Ex. PW33/E. Thereafter PW32, PW33 and PW34 alongwith accused Karan Verma and Kamal Kumar returned to the police station. On the next day, accused Karan Verma and Kamal Kumar were produced before the court. Accused Karan Verma was remanded to JC and one day police custody remand of accused Kamal Kumar was granted by the court upon an application moved by the IO. Supplementary disclosure statement of accused Kamal Kumar Ex. PW32/I was recorded.
40. In pursuance to his supplementary disclosure statement, accused Kamal Kumar led the police near Hindon River, parallel to highway Ghaziabad and accused Kamal Kumar got recovered one blue black colour bag (Ex. PW32/P3) from the bushes. The bag had four pockets on which ''The North Face'' was written on small pocket of bag. Upon checking the bag, it was found containing 15 articles of deceased Yogesh discussed hereinbelow. The said articles were kept in the same bag and the bag was kept in white colour cloth which was converted into pulanda and was sealed with the seal of PS Mandawali MND 03 East Dist. Seizure memo Ex. PW32/J of the aforesaid bag containing the aforesaid articles and documents was prepared. The case property was deposited in Malkhana.
41. IO/Insp. O.P.Sinha searched for co-accused Parvinder Yadav and collected the photocopy of GPA regarding Flat No. A456, Third Floor, South Ganesh Nagar, Delhi, Ex. PW16/A and rent agreement in respect of the said property SC No. 1052/2016 Page 29 of 119 ASJ04/KKD/Delhi executed between Sandeep Sharma and accused Parvinder Singh Yadav Ex. PW16/B, which was produced by PW16 Sunita Sharma, wife of Sh. Sandeep Sharma. The said documents were seized by the IO vide seizure memo Ex. PW27/A.
42. Thereafter on 16.10.2013, PW34 IO/Insp. O.P.Sinha received information through HC Shiv Kumar, PS Burari regarding the arrest of accused Parvinder under section 41.1 Cr.P.C and he further informed that accused Parvinder will be produced before Tis Hazari Court on 17.10.2013. On 17.10.2013, PW34 went to Tis Hazari Court where HC Shiv Kumar produced accused Parvinder before the court. PW34 moved an application before the ld. MM for interrogation and arrest of accused Parvinder, which was allowed and IO interrogated accused Parvinder and recorded his disclosure statement Ex. PW26/B. Accused Parvinder Singh was arrested vide Arrest Memo Ex. PW26/A. On 19.10.2013 PW34 moved an application Ex. PW34/E for police custody remand of accused Parvinder Singh and two days police custody remand was granted.
43. On 20.10.2013, accused Parvinder Singh made supplementary disclosure statement Ex. PW33/F. Accused Parvinder Singh led police team to the spot i.e. H.No. 456-A, Third Floor, South Ganesh Nagar, Delhi and pointing out memo was prepared vide Ex. PW33/G. Accused Parvinder Singh led the police under the bridge of Ganesh Nagar after crossing the railway line in the side of Pagdandi going to Shakarpur and SC No. 1052/2016 Page 30 of 119 ASJ04/KKD/Delhi pointed out the bushes where he had thrown the purse and mobile phone of the deceased. At his instance one first page of cheque book of deceased on which address and account number i.e. 627701501228 (Ex. PW33/P8) was printed and PAN card of the deceased (Ex. PW33/P7) were also recovered. IO kept said exhibits in sealed envelop and the same were seized vide seizure memo Ex. PW33/H. IO also prepared the pointing out memo of place of recovery vide Ex. PW33/I. IO also prepared the site plan of place of recovery of PAN Card and documents vide Ex.
PW34/F. (vii) Forensic Examination :
44. The IO sent the exhibits to FSL Rohini for their evaluation and analysis through PW31 vide RC No. 133/21/13 Ex. PW28/G, who on 21.10.2013 took one sealed wooden box alongwith sample seal of LBS Hospital from MHC(M) PW28 ASI Rakesh Kumar vide RC No. 133/21/13 (Ex. PW28/G) for depositing the same at FSL Rohini and after depositing the same at FSL Rohini, PW31 handed over the acknowledgement to MHC(M) vide Ex. PW28/H. On 21.10.2013 seven sealed parcels alongwith two sample seals were also sent to FSL Rohini through PW17 Ct. Anil vide RC Nos. 131/21/13 (Ex. PW28/D) and 132/21/13 (Ex. PW28/E). PW17 Ct. Anil returned to the police station after depositing the exhibits and handed over the acknowledgement Ex. PW28/F.
45. PW25 Ms. Monika Chakrawarti, Sr. Scientific Assistant (Biology), FSL, examined the exhibits and gave SC No. 1052/2016 Page 31 of 119 ASJ04/KKD/Delhi detailed biological and serological reports regarding the said exhibits vide Ex. PW25/A and Ex. PW25/B respectively. As per report Ex. PW25/A blood was detected on exhibits '1' (one gadda/quilt having a few brown stains), '2' (one wooden stick), '3' (one wooden stick), '4' (one wooden stick), '5a' (cotton wool swab kept in a plastic container), '5b' (cotton wool swab kept in a plastic container), '5c' (cotton wool swab kept in a plastic container), '5d' (cemented concrete pieces), '5e' (cemented concrete pieces), '5f' (one broken tile piece), '6' (one cut/torn pants described to be of accused) and '7' (brownish gauze cloth piece described to be of deceased).
46. As per the report of Biology Division Ex. PW25/B portion of the exhibits as detailed in the main Biology report were examined using various serological techniques and as per the result of the said report, blood group 'A' of human origin was found on Ex. '3' (one wooden stick), '6' (one cut/torn pants described to be of accused) and '7' (brownish gauze cloth piece described to be of deceased).
47. Accordingly, as per the FSL result Ex. PW25/A and Ex. PW25/B blood group "A" was found on exhibit '3' i.e. wooden stick, which was the weapon of offence which was lifted from the spot by PW33 and seized by the IO vide seizure memo Ex. PW33/B. Ex. '6' i.e. pants which were got recovered at the instance of accused Karan Verma on 18.09.2013 and seized by the IO vide seizure memo Ex. PW32/A. SC No. 1052/2016 Page 32 of 119 ASJ04/KKD/Delhi
(viii) Call detail record and location:
48. IO/PW34 collected the CDR of mobiles no.
9910917889, 9540964572, 9582730131 and 9582223736 belonging to deceased Yogesh and the accused persons.
Discussion:
Testimony of PW Prashant :
49. The aforesaid evidence will have to be scrutinized in order to ascertain the guilt or innocence of the accused persons. PW4 Sh. Prashant Kumar is the eye witness of the incident, who has deposed that on 16.09.2013 he was residing at H.No. A-456, Third Floor, South Ganesh Nagar, Delhi and he had returned from his duty to his room at about 09.30 pm. He was sitting in his room at third floor and he heard screaming noise from outside. He came to his balcony and saw four persons were beating one person. At that time their faces were not clearly visible as they were about 50 meters away and there was no electricity light there. Thereafter he noticed that those four persons started assaulting the victim with bricks. He went inside his room to get his mobile and he called the police at 100 number. He further saw that after giving beatings to the victim, deceased, three of them dragged him just near his flat and thereafter those three persons again started assaulting the victim just near his flat and at that time there was sufficient light. He knew one of the three offenders as he was residing on rent in his adjoining house and he identified the said offenders as Karan Verma and correctly identified him before the court. PW4 also correctly identified the other two accused persons i.e. Parvinder SC No. 1052/2016 Page 33 of 119 ASJ04/KKD/Delhi Singh and Kamal Kumar as those, who were assaulting the victim. PW4 stated that he later came to know the name of the victim to be Yogesh and that he was told by the police that he had expired. He stated that he had called the police on 100 number from his mobile number 9136665952 mentioned in PCR form Ex. PW3/A. He further stated that the accused persons were assaulting the injured with bricks. He raised an alarm and resisted not to assault the victim but the accused persons continued assaulting him. He deposed that his statement was recorded by the IO on 18.09.2013 and his statement was recorded before the concerned M.M. under section 164 Cr.P.C. on 09.01.2014 vide Ex. PW4/B. In his cross-examination by Ld. Addl.P.P. for the State he deposed that the accused persons and the fourth offender were assaulting injured with bricks on his head. PW4 was contradicted with his statement recorded under section 164 Cr.P.C. by counsel for the accused wherein he had stated that one of the four persons had hit the injured with a brick. PW4 clarified that he had seen four persons assaulting one person and when he saw that one of them started assaulting the victim with a brick, he came to know that there was a serious quarrel. Hence, as per PW4 the injury was inflicted with bricks by one of the four assailants including the accused persons.
50. It is urged by ld. Counsel for the accused Karan Verma that PW4 Prashant Kumar is a planted witness. It is argued that from the testimony of PW4 Prashant Kumar it is manifest that despite the fact that he had allegedly witnessed the incident on the night of 16.09.2013 and was available, his SC No. 1052/2016 Page 34 of 119 ASJ04/KKD/Delhi statement was not recorded by the police till 18.09.2013 pointing to fabrication and after thought. It is further argued that despite there being 4 PCR calls regarding the incident, IO has not recorded statements of other PCR callers, whose mobile numbers were also available in the PCR form. No statement of the said callers has been recorded by the police even though they might have been eye witnesses to the incident. Moreover, the IO and other police witnesses have not stated anything regarding any efforts made to trace out the said PCR callers. It is further urged that the police has not recorded the statement of the alleged room-mate of PW4 Prashant Kumar. It is also stated that there are many contradictions between the testimonies of PW4 and the testimony of the police witnesses i.e. PW33 and PW34 regarding availability of PW4 after the incident, which contradictions are material and point to the fact that PW4 was a witness subsequently planted by the police to implicate the accused persons falsely in the present case.
51. It is further argued that as per the testimony of PW4, the accused persons had assaulted deceased Yogesh with bricks on his head, whereas as per the MLC Ex. PW13/A, there was no visible external head injury. It is accordingly urged that there is a direct conflict between the oral evidence and medical evidence and thereby indicating that PW4 is not a reliable witness and his testimony is liable to be discarded.
52. It is also argued that the prosecution has not proved on record that the alleged eye witness PW4 used to reside at the SC No. 1052/2016 Page 35 of 119 ASJ04/KKD/Delhi said tenanted premises from where he allegedly witnessed the incident. Neither any residence proof nor any lease agreement has been placed on record to prove that PW4 used to reside at that address. Even Aadhar card of PW4 is of his native place. No identity card of place of employment of PW4 has been placed on record to even show that he was in Delhi on the date of incident. The mobile number being used by PW4 was also subscribed at his native place. Hence, it is not proved on record that the star witness of the prosecution was residing at Delhi on the date of incident.
53. It is stated that as per the testimony of PW4 itself about 20 public persons were present at the time of incident and three public persons had also made a PCR call before the call was made by PW4, however, the police has recorded the statement of only PW4, who strangely was also the only person who helped the police to take the deceased in PCR van thereby pointing to the fact that he was a planted witness.
54. Eye witness Prashant Kumar, PW4 has deposed regarding the incident and supported the allegations against the accused persons regarding assault upon the victim by the accused persons by giving him beatings and hitting him with brick. As regards the testimony of an eye witness, the Hon'ble Supreme Court in Shahaja @ Shahajan Ismail v. The State of Maharashtra, passed on 14.07.2022 in Criminal Appeal No. 739 of 2017 held as under :
"27. The appreciation of ocular evidence is a hard task. SC No. 1052/2016 Page 36 of 119 ASJ04/KKD/Delhi There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The SC No. 1052/2016 Page 37 of 119 ASJ04/KKD/Delhi mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
28. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such SC No. 1052/2016 Page 38 of 119 ASJ04/KKD/Delhi situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
29. There is nothing palpable or glaring in the evidence of the two eye-witnesses on the basis of which we can take the view that they are not true or reliable eye-witnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-
witnesses."
55. The testimony of PW4, who is the sole eye witness examined on behalf of the prosecution has to be examined in light of law as laid down by the Hon'ble Supreme Court hereinabove.
56. In his testimony recorded before the court, as discussed hereinabove, PW4 has given a consistent account of the incident that transpired on 16.09.2013. He was cross- examined at length by Ld. Defence Counsels. He was confronted with his statement recorded under section 161 Cr.P.C. dated 18.09.2013 Ex. PW4/DA, regarding the details of the incident as deposed by him before court, however the facts as deposed by him before the court are the details and elaboration of the SC No. 1052/2016 Page 39 of 119 ASJ04/KKD/Delhi incident which were also stated by him in his initial statement recorded under section 161 Cr.P.C. and is in consonance with his statement recorded under section 164 Cr.P.C. Ex. PW4/B. He was also confronted with his statement recorded under section 164 Cr.P.C. Ex. PW4/B, regarding number of persons who were assaulting the deceased with bricks and he clarified that his statement recorded under section 164 Cr.P.C. Ex. PW4/B, before Ld. MM that one of the assailants started assaulting the injured with bricks was correct.
57. In his cross-examination, PW4 answered all questions in a coherent manner pertaining to the spot and the manner in which the offence was carried out. He deposed in his cross-examination that when he saw the accused persons beating deceased Yogesh they were at the corner of the crossing/ chauraha. This spot was at 20 steps from the entrance of plot no.456. When Yogesh was dragged in front of plot no.456, where he was residing in a flat on the third floor, the place where Yogesh was beaten was at a distance of about 4-5 steps from the entrance of plot no.456. He stated that the blood was lying scattered on the road towards the crossing from his house at about 5-6 steps from the entrance of plot no.456. Blood was also lying at the corner of chauraha. He stated that the shop of Pappu Halwai was not visible from his flat at plot no.456 and it is situated after taking left turn from chauraha starting from his flat. The police never recovered bricks from the spot in his presence. He also stated in his cross-examination that he was residing at third floor of house no. A-456, South Ganesh Nagar, SC No. 1052/2016 Page 40 of 119 ASJ04/KKD/Delhi Delhi. There is a common staircase leading up to all the floors. He had noticed blood stains on first and the second steps of the stairs. He did not remember if there was blood lying on the other steps of the stairs. He also stated that there was light on the ground floor on the stairs. He affirmed that there was a tree just below the balcony of flat no.456A and stated that the said tree is one side and not just below the balcony of the said flat. He also stated that Yashoda Maurya was the owner of flat no.456A, 3 rd floor, South Ganesh Nagar, Delhi. All flats of the said building were occupied on 16.09.2013. The ground, first and second floor were occupied by families. He did not know who were residing in the adjacent houses but one side of the house was constructed up to ground floor while the other one was constructed upto 3 rd floor. The house which was situated just opposite to their building was occupied by labourers. There was an electric poll near the chauraha/crossing. The four boys had beaten the injured near chauraha/crossing for about 10 minutes. There was public movement at that time. Some public persons even stood there and witnessed the beatings and then went away. The second incident of beatings near his house continued for 5-10 minutes. Even at that time, public persons were present near the crossing and they remained away from the site. He stated that he was present in the balcony of his flat A456, South Ganesh Nagar, when he made first call on 100 number. He also affirmed that the photographs Ex.PW4/X1 was of the common balcony situated at the stairs of A-456 and photographs Ex.PW4/X2 was of the tree planted in front of A-456. The Shop of Pappu Halwai was situated at a distance 50-100 meters from his house. Accordingly, during his SC No. 1052/2016 Page 41 of 119 ASJ04/KKD/Delhi cross-examination, PW4 described in detail the place of incident and the area where the incident took place. Hence, it is apparent that PW4 was aware of the place of incident where Yogesh was beaten by the accused persons. Nothing was brought on record to show that there was any discrepancy in what was stated by PW4 regarding the place of incident. In fact during his cross- examination, PW4 was able to give a vivid description the place and the manner in which the incident took place thereby, indicating that he was well-versed with the area and was living in the flat i.e. A-456, Third Floor, South Ganesh Nagar, Gali No. 9, Delhi at the time of incident. Nothing was elicited in his cross- examination to demonstrate that he had not witnessed the incident.
58. The presence of PW4 at the place of incident is also corroborated by the PCR call, Ex. PW3/A, made by him at 23:11:21 on 16.09.2013 regarding a quarrel wherein the place of incident was also mentioned as H.No. A456, South Ganesh Nagar, Gali No. 9, Delhi. In the said PCR call the witness PW4 had given his permanent address of Bhawanthipur, Jharkhand. However, the fact remains that PW4 made a PCR call, Ex. PW3/A, about an incident of quarrel at H.No. A-456, South Ganesh Nagar, Gali No. 9, Delhi, which affirms his presence at the spot at the time of incident.
59. At the time when his testimony was recorded PW4 deposed that he was residing at the said address on the date of incident. He had witnessed the incident from the said premises SC No. 1052/2016 Page 42 of 119 ASJ04/KKD/Delhi and had been living there for the past three years. He was working at RBS Bank as Data Analyst. In his cross-examination he deposed that the police did not ask him to provide any documentary proof regarding his employment or his duty hours. He denied the suggestion that he had not been working at the said office. The IO had asked his flatmate Rohan for the rent agreement but it was not available with them at that time. They had provided their ID card to the IO, however, those do not pertain to the above said premises. He deposed that RC of his motorcycle pertains to the address i.e. A-456, South Ganesh Nagar, and the same was shown to the IO to confirm the address. However, the IO did not take the copy of the same. IO also did not take copy of rent agreement from him.
60. PW4 was cross-examined at length by Ld. Counsel for the accused persons, however, nothing was revealed in his testimony to doubt his presence at the place of incident. The fact that the IO did not collect the copy of the rent agreement or the RC of the motorcycle or did not record statement of other PCR callers or roommate of PW4 Prashant, is a deficiency in the investigation and shall not accrue to the benefit of the accused persons. The Hon'ble Supreme Court in Dayal Singh & Ors. v. State of Uttaranchal, 2012 (8) SCC 263, while dealing with cases of omission and commissions by the investigating officer and duty of the court in such cases observed as follows :
"22. Now, we may advert to the duty of the Court in such cases. In the case of Sathi Prasad v. The State of U.P. [(1972) 3 SCC 613], this Court stated that it is well settled SC No. 1052/2016 Page 43 of 119 ASJ04/KKD/Delhi that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in the case of Dhanaj Singh @ Shera & Ors. v. State of Punjab [(2004) 3 SCC 654], held, "in the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
23. Dealing with the cases of omission and commission, the Court in the case of Paras Yadav v. State of Bihar [AIR 1999 SC 644], enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party."
61. Accordingly, the presence of eye witness PW4 at the spot cannot be disputed solely on the ground that the documents relating to his proof of residence were not collected by the IO and his presence on record is established on record in view of his testimony as well as the fact that he also made a PCR call Ex. PW3/A about the incident of quarrel at Flat No. 456-A, Third Floor, South Ganesh Nagar, Delhi.
62. It is contended by ld. Counsel for the accused Parvinder that as per the testimony of PW4, Karan Verma was residing in the house in which the incident took place, however, the prosecution has produced the lease agreement of accused Parvinder to show that he was the tenant of the said premises, SC No. 1052/2016 Page 44 of 119 ASJ04/KKD/Delhi thereby controverting the version of PW4 himself. It is argued that it is not even deposed by PW4 that accused Parvinder used to reside at the place of incident and stated that accused Karan Verma used to reside there. Even the rent agreement Ex. PW16/B is a concocted document and does not bear the signatures of the landlord. He also disputed the signatures of accused Parvinder on the said document.
63. PW 34 IO/Insp. O.P.Sinha searched for co-accused Parvinder Yadav and collected the photocopy of GPA regarding Flat No. A-456, Third Floor, South Ganesh Nagar, Delhi, Ex. PW16/A and rent agreement in respect of the said property executed between Sandeep Sharma and accused Parvinder Singh Yadav Ex. PW16/B, which was produced by PW16 Sunita Sharma, wife of Sh. Sandeep Sharma. The said documents were seized by the IO vide seizure memo Ex. PW27/A. No suggestion was given to PW16 that the rent agreement was a forged document or that her husband Sandeep Sharma had not entered into any rent agreement with accused Parvinder. Hence, the rent agreement entered between accused Parvinder and Sandeep Sharma in respect of property bearing No. 456-A, Third Floor, South Ganesh Nagar, Delhi, remained undisputed.
64. The fact that PW4 has deposed that accused Karan Verma used to reside at Flat No. A-456, Third Floor, South Ganesh Nagar, Delhi, and had not stated that accused Parvinder was a tenant of the said premises would not be of much significance, considering that it is the case of the prosecution SC No. 1052/2016 Page 45 of 119 ASJ04/KKD/Delhi itself that the accused persons used to gamble and drink together in that premises. Much would not turn on the mere fact that PW4 thought that accused Karan Verma used to reside there as it was never stated by PW4 that he had checked the documentation i.e. rent agreement etc. in favour of Karan Verma, regarding the said premises. Infact if the witness was a planted one, he would have stated at the outset that Parvinder was the tenant of the said premises and not named Karan Verma as the tenant of the premises.
65. It is also contended that the rukka Ex. PW33/A was prepared by the IO at 01.50 am on 17.09.2013. The said rukka mentions that the victim was admitted in the hospital with the history of being found unconscious and the victim being unfit for statement. The rukka further mentions that the IO went to the spot and found blood trail on the street outside H.No. A457 and articles found there as well as in the third floor flat and the blood spots were found in the stair case and inside the flat as well as other articles found inside the flat, however, the said rukka though it was prepared after obtaining the MLC of the deceased and inspecting the crime scene, it does not mention anything regarding the alleged eye witness Prashant, who was also present at the spot as per the version of PW4. The said rukka also nowhere mentions that the victim was found semi-unconscious by the PCR official or any other person. It is urged that the said facts reveal that the alleged eye witness PW4 has been planted by the police only to falsely implicate the accused persons and that injured Yogesh was unconscious at the time when he was taken SC No. 1052/2016 Page 46 of 119 ASJ04/KKD/Delhi to the hospital from the spot.
66. Additionally, much emphasis has also been laid on the fact that the statement of eye witness PW4 was recorded in the evening of 18.09.2013 whereas the incident took place on 16/17.09.2013 at about 10.00 - 11.00 pm. It is noteworthy that PW4 in his cross-examination stated that after the incident at about 11.30 pm on 16.09.2013 he went to the house of his friend Kunj Vikram at Ganesh Nagar and till then local police had not reached the spot. He had gone only to meet his friend that night. At about 11-11.15 pm PCR van had reached the spot and took the injured to the hospital. He returned to his flat from the house of his friend on that night at about 01.11 am i.e. on 17.09.2013. When he came back to his flat in the night, police was not present there at the spot. On 17.09.2013 the police came to his flat in the morning at about 07.00 - 07.30 am. He was only interrogated by the police for 15-20 minutes at that time and his statement was not recorded by the police in his presence. His interrogation started at about 09.00 - 09.30 am. He did not tell the police officials that on 18.09.2013 that he had already been interrogated on 17.09.2013. He did not know the names of police officials, who had interrogated him. He was on leave on 17.09.2013. On 17.09.2013 he left the spot at 11.00 am - 12.00 noon for his personal work. On 18.09.2013 he went to his office at about 11.30 am and returned to PS Mandawali at 04.00 pm. His statement was read over to him. He denied that he was not interrogated on 17.09.2013. He further denied that his statement dated 18.09.2013 is false.
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67. PW33 SI Virender deposed that on 18.09.2013 at about 04.00 pm eye witness Prashant joined the investigation. In his cross-examination a question was put to PW33 as to what was his interaction with PW4 Prashant till 03.15 am on 17.09.2013 to which he replied that he met Prashant on his first visit at the spot. He was 100 number caller. PW33 inquired about the matter from him and Prashant told him that 3-4 persons were having quarrel upstairs and they also came down and kept on beating one person downstairs. A question was also put to PW33 as to why he did not mention the above said facts in the rukka, to which he replied that after interacting with Prashant he left for LBS Hospital and when he returned Prashant was not found there. Hence those facts were not mentioned by him in the rukka. He denied that there was no need for presence of PW Prashant while recording the rukka. He stated that rukka is prepared on basis of the facts that emerged. In case where an eye witness comes forward, the rukka is recorded on the basis of his statement. On a specific question being put to PW33 as to why he did not record the statement of PW Prashant, when he informed him about the incident during his first visit at the spot, PW33 deposed that his first priority was to visit the victim who was already admitted in the hospital so that the statement of victim could be recorded. PW33 affirmed that the mobile number of PW Prashant was in his knowledge since his first visit at the crime scene itself. He did not remember if he had any interaction with PW Prashant on entire day of 17.09.2013. Thereafter he met Prashant in the early evening of 18.09.2013 at about 04.00 to 05.00 pm. He denied the SC No. 1052/2016 Page 48 of 119 ASJ04/KKD/Delhi suggestion that PW Prashant was not an eye witness of the case and therefore he was not contacted on intervening night of 16/17.09.2013 or on 17.09.2013 and till the afternoon of 18.09.2013. He denied that PW Prashant was pressurized to become an eye witness of the present case at the behest of wife of the deceased.
68. In this regard, IO/PW34 deposed that they could trace PW Prashant only on 18.09.2013 for the first time and PW2 Sandeep Kumar only after a gap of 10-12 days of the incident. PW2 Sandeep Kumar was not found to be an eye witness. Prashant could not be contacted till 18.09.2013 at about 04.00 or 05.00 pm and they did not know the address of PW4 Prashant till 04.00 to 05.00 pm of 18.09.2013. They did not join the friend of PW4 Prashant in the investigation to find out whether he had gone to the house of said friend on the intervening night of 16/17.09.2013. He denied that since PW4 Prashant was not an eye witness he was not contacted till 04.00 to 05.00 pm on 18.09.2013. He volunteered that PW4 Prashant was contacted in the morning of 18.09.2013 itself by him and he had told him that he would come to the police station in the afternoon.
69. Accordingly, from the aforesaid testimony of PW33 SI Virender, who had reached the spot after receipt of information regarding incident vide DD No. 56A, PW4 Prashant met him during his first visit at the spot and he informed him about the incident that 3 to 4 persons were having quarrel upstairs and that they also came down and kept on beating one SC No. 1052/2016 Page 49 of 119 ASJ04/KKD/Delhi person downstairs. However, the said facts were not mentioned in the rukka, as after interacting with PW4 Prashant, PW33 left for LBS Hospital where the injured was admitted and when he returned, PW4 was not found there. PW33 also stated that his first priority was to firstly visit the injured, who was admitted in the hospital, so that the statement of injured could be recorded. Noticeably, the FIR was initially registered under section 307 IPC on basis of DD No. 56A. Hence, the conduct of PW33 in not having recorded the statement of PW4 Prashant on the intervening night of 16/17.09.2013 is sufficiently explained as PW33 went to the hospital where injured was admitted and his priority was to record the statement of the injured.
70. Though it has been deposed by PW4 that the police came to make inquiries from him in the morning of 17.09.2013, however, his statement was only recorded on 18.09.2013 in the evening. It is stated by ld. Counsel for the accused that the statement of PW4 Prashant was recorded after a delay in order to conceal the truth and though PW34 stated that they could trace PW4 Prashant only on 18.09.2013, PW4 Prashant has deposed that inquiries were made from him by the police in the morning of 17.09.2013 itself at 09.30 am at his house, however, his statement was not recorded at that time. As discussed, initially the FIR Ex.PW10/A was lodged on 17.09.2013 under section 307 IPC on the basis of DD No. 56A. PW4 Prashant Kumar was interrogated by PW33 on the date of incident itself when he reached the spot, subsequently the statement of PW4 Prashant Kumar was recorded by PW34 IO/Insp. O.P.Sinha on SC No. 1052/2016 Page 50 of 119 ASJ04/KKD/Delhi 18.09.2013. No question was put to PW33 if he had informed IO/Insp. O.P.Sinha regarding the inquiries made from PW4 by him on 17.09.2013 itself. PW34 stated that they could trace Prashant on 18.09.2013 in the morning and PW Prashant told that he would come in the police station in the afternoon and his statement was recorded on 18.09.2013 in the evening by him at the police station at 4-5 pm. PW4 Prashant also deposed that he was interrogated by the police on 17.09.2013, however, on that day his statement was not recorded. PW4 in his cross- examination also stated that on 17.09.2013 he had left the spot at 11.00 am - 12.00 noon for his personal work. Thereby indicating that he was not available after that. PW4 also deposed that on 18.09.2013 he reached the police station after returning from his office at about 04.00 pm. Hence, the statement of PW4 was recorded without substantial delay and delay, if any, in examining him would not ipso-facto render the testimony of the witness, suspect or affect the prosecution version and it would not be sufficient ground to discard his testimony which otherwise is reliable and cogent.
71. It has also been argued that the conduct of PW4 in having gone to his friends house after witnessing the incident was not normal and he should have given his statement to the police and not have left for his friends house on the night of incident considering the gravity of the offence which he had allegedly witnessed. It is to be however, noted that any person who witnesses such a traumatic incident of a person being beaten by four others, could have felt unnerved and disturbed and hence, SC No. 1052/2016 Page 51 of 119 ASJ04/KKD/Delhi in such circumstances if he visits his friend, then that conduct cannot be termed as abnormal. One also cannot loose sight of the fact that different persons react differently under given circumstances and hence, the conduct of PW Prashant in visiting his friends house after witnessing the incident cannot be termed unusual.
72. Moreover, PW4 was cross-examined in detail by ld. Counsel for the accused persons on four dates and he withstood the said detailed cross-examination. Nothing was revealed in his cross-examination to discredit the veracity of his testimony. Nothing was disclosed during his detailed cross-examination to indicate that he was deposing at the instance of the IO or at the instance of the complainant. Nothing was brought on record to show that PW4 had any reason to falsely implicate the accused persons. PW4 was also confronted with his earlier statement recorded under section 161 Cr.P.C. Ex. PW4/DA and his statement recorded under section 164 Cr.P.C. by Ld. M.M. Ex. PW4/B. The statement recorded under section 164 Cr.P.C. and his testimony recorded before the court are consistent with each other as regards the material aspects of the case and there is no material contradiction in his statements to disbelieve his testimony. In Shahaja (Supra), as discussed, the Hon'ble Supreme Court observed that a formal statement though inconsistent with the evidence need not necessarily be sufficient to amount to contradiction unless it has the effect of discrediting the later statement even if the later statement is at some variance with the former, it would not be helpful in contradicting that SC No. 1052/2016 Page 52 of 119 ASJ04/KKD/Delhi witness.
73. The testimony of PW4 when read as a whole appears to have a ring of truth. The general tenor of his evidence reveals that he is a trustworthy witness, whose presence is also assured by the fact that he had also made a PCR call Ex. PW3/A regarding a quarrel. PW4 did not flinch during his detailed cross-examination by ld. Counsel for the accused persons and did not give evasive replies. Nothing has been brought on record to improbablize the presence of PW4 at the spot or to disbelieve his testimony. The alleged delay in recording of his statement under section 161 Cr.P.C. on 18.09.2013 is not substantial so as to discredit his testimony. Nothing has been brought on record to show as to why he would support the prosecution version at the instance of police or the complainant. No reason has been brought-forth to show as to why PW4 would falsely implicate the accused persons. No enmity, ill-will or grudge has even been suggested on the part of PW4, for him to have falsely implicated the accused persons. Mere suggestion that PW4 has falsely implicated the accused persons at the instance of the police officials or the complainant to save other persons would not be sufficient to discard his testimony. No further cross-examination of PW4 was conducted to ascertain if he had acted at the behest of the complainant or the police officials.
74. It is noteworthy that PW4 also identified all the three accused persons present before the court while recording of his testimony. The incident occurred on 16.09.2013 and the SC No. 1052/2016 Page 53 of 119 ASJ04/KKD/Delhi examination-in-chief of PW4 was recorded on 22.05.2014, hence, not much time had elapsed from the date of incident, when PW4 had witnessed it. Infact PW4 also deposed that initially when he had heard screaming noise from outside, he came out in the balcony and saw four persons were beating one person. However, at that time their faces were not clearly visible as they were at about 50 meters away and there was no electricity light there. Thereafter those persons started assaulting the victim with bricks and he went inside to get his mobile phone and made a call to the police at 100 number. Then he saw that three out of those four persons dragged the victim just near his flat and again started assaulting the victim. At that time, there was sufficient light over there and he identified one of them as Karan, who used to reside in his adjoining house and he also identified the other two persons, who were assaulting the victim, before the court. The said facts indicate that initially the accused persons were not visible due to paucity of light at the spot, which was about 50 meters away, and it is only later when the accused persons brought the victim by dragging him to near the flat of PW4 that he was able to see them properly as there was light over there. Hence, the identification of the accused persons by PW4 is proper as PW4 had sufficient opportunity to observe the accused persons, who continued to beat injured Yogesh in his presence for some time. Even the time gap between the date of incident and recording of testimony of PW4 was not too much for PW4 to have forgotten the faces of the assailants.
Scientific Evidence :
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75. PW5 proved the postmortem report PW5/A and as per which the cause of death was cerebral damage with shock consequent upon multiple injuries caused by blunt force impact by hard object/weapon. All injuries were ante mortem in nature and recent in duration. Injury No. 1 to 18 were collectively sufficient to cause death in ordinary course of nature. Internal injuries on the head were also mentioned in postmortem report Ex. PW5/B.
76. In his cross-examination PW5 stated that this type of cerebral injuries were not possible by falling of stairs of 2 nd and 3rd floor. As per the postmortem report there was no visible external head injury. The contention that since there was no visible external head injury and hence the testimony of PW4 is contradicted by the medical evidence is untenable because the cause of death as revealed in the postmortem report was cerebral damage due to multiple injuries caused by blunt force impact. Internal injuries were indicated on head also. Hence, mere absence of visible head injury does not lead to a conclusion that there was no head injury.
77. PW5 also deposed that hard object / weapon mentioned by him would mean a piece of furniture, danda, fist etc. He did not specifically mention bricks, however, a brick would also fall in the category of a hard object as mentioned in the postmortem report. The IO had also seized three pieces of wooden sticks having blood stains from the spot i.e. flat No. A456, South Ganesh Nagar, Delhi, the same are Ex. PW33/P-2, SC No. 1052/2016 Page 55 of 119 ASJ04/KKD/Delhi P-3 and P4. The said wooden sticks were also sent to FSL. As per the FSL result Ex. PW25/A and Ex. PW25/B blood group "A" i.e. blood group of the deceased as present on gauze cloth piece described to be of deceased, was found on exhibit '3' i.e. wooden stick, which was the weapon of offence which was lifted from the spot by PW33 and seized by the IO vide seizure memo Ex. PW33/B. Hence, the recovery of blood stained wooden sticks from the spot corroborates the medical evidence and the testimony of PW4.
78. It is also relevant to note that PW4 had deposed that from the flat of accused Karan Verma smell of alcohol used to come and some noise of Chillam- Chilli also used to be heard. The said fact is also corroborated by the postmortem report, as per which the deceased had consumed Ethyl alcohol prior to his death. There was 192.8 mg per 100 ml of blood and hence the deceased was heavily drunk at the time of incident. The MLC Ex. PW13/A also reveals that injured was having smell of alcohol in his breath.
79. The IO had seized from the flat bearing no. A456, Third Floor, South Ganesh Nagar, Delhi, amongst other articles, one empty glass bottle of liquor labelled with Royal Stag which is a part of Ex. PW33/P-5 (colly), vide seizure memo Ex. PW33/B thereby corroborating the fact that the persons present there were consuming liquor at the time of incident. PW4 has deposed that the accused persons appeared to be under influence of alcohol at the time of incident and hence, the recoveries SC No. 1052/2016 Page 56 of 119 ASJ04/KKD/Delhi effected from Flat No. A-456, Third Floor, South Ganesh Nagar, Delhi, corroborate the version of PW4.
80. Hence, the testimony of PW4 that the accused persons had given beatings to the injured and that one of the assailants started assaulting the injured with bricks on his head is corroborated by recoveries effected from the spot, medical and forensic evidence.
Dying Declaration:
81. PW6 ASI Dharamvir, who was Incharge PCR van, reached the spot after receiving two calls at about 11:06 and 11:15 pm regarding one person lying unconscious in front of shop of Pappu Halwai in South Ganesh Nagar. When he reached there he found one person in injured condition, who was semi unconscious at that time and he told PW6 that accused Parvinder, Kamal and Karan, who were his friends, had beaten him. PW6 took the injured to the hospital where he was admitted and at that time also he was semi-unconscious.
82. It is argued that there is nothing on record to show that the victim was conscious or semi-conscious when he was taken to the hospital by PW6 ASI Dharamvir and the statement made in this regard by ASI Dharamvir PW6 is concocted and manufactured. It is argued that in his cross-examination PW6 deposed that he had met the IO and told him the three names given by Yogesh on 17.09.2013 in the morning and his statement was recorded by the IO on 20.09.2013 pointing to fabrication. It SC No. 1052/2016 Page 57 of 119 ASJ04/KKD/Delhi is stated that there is no reason why the statement of such a material witness to whom the injured had himself told the names of his assailants was not recorded for three days. Moreover, when injured Yogesh was admitted in the hospital, as per MLC Ex. PW13/A he was found unfit for statement with alleged history of being found unconscious on road side, which history was given to the doctor by ASI Dharamveer (PW6) himself. Smell of alcohol was found present. It is also pointed out that as per the FSL result Ex. Ethyl Alcohol 192.8 mg per ml of blood was found in the blood sample of deceased Yogesh, which clearly shows that Yogesh was not in a position to give any statement to the police, leave aside the names of the assailants while he was being taken to the hospital by PW6. Even as per DD No. 56A, dated 16.09.2013, at 11.05 pm, an information was received by the Duty Officer PS Mandawali vide DD No. 56A (Ex.Z-1) that one person was lying unconscious near Pappu Halwali, A Block, South Ganesh Nagar. It is contended that the said DD entry also indicates that Yogesh was unconscious at the time when PW6 reached at the spot. It is urged that the aforesaid facts indicate that PW6 has concocted a story to falsely implicate the accused persons.
83. It is also urged that the alleged dying declaration made to PW6 is only a statement of a police witness and the same was not made before a doctor despite the fact that the deceased had been taken to the hospital. It is not the statement made by the deceased to any authority and therefore it cannot be relied upon.
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84. The law regarding dying declaration has been discussed by the Hon'ble Supreme Court in the catena of decisions. In Parbin Ali & Anr vs State of Assam, decided on 7 January, 2013, Crl Appel No. 1037/2008, the Hon'ble Supreme Court discussed the law relating to evidentiary value of an oral dying declaration and made the following observations:
"12. Before we proceed to scrutinize the legal acceptability of the oral dying declaration, we think it seemly to refer to certain decisions in regard to the admissibility and evidentiary value of a dying declaration. In Khushal Rao v. State of Bombay [1], Kusav v. State of Orissa [2] and in Meesala Ramakrishan v. State of A.P. [3], it has been held that the law is well settled that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence.
13. In Ranjit Singh v. State of Punjab[4], it has been held that the conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts, in arriving at the judgment of conviction, shall look for some corroborating evidence. In this context, we may also notice the judgment in Nanhau Ram v. State of M.P.[5] wherein it has been stated that normally, the court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eye witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
14. While dealing with the evidence of the declarant's mind, the Constitution Bench, in Laxman v. State of Maharashtra[6], has laid down thus: -
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the SC No. 1052/2016 Page 59 of 119 ASJ04/KKD/Delhi truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."
15. In this context, it will be useful to refer to the decision in Puran Chand v. State of Haryana[7] wherein it has been stated that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that the law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused.
SC No. 1052/2016 Page 60 of 119 ASJ04/KKD/Delhi
16. Regard being had to the aforesaid principles, we shall presently advert how to weigh the veracity of an oral dying declaration. As has been laid down in Laxman (supra) by the Constitution Bench, a dying declaration can be oral. The said principle has been reiterated by the Constitution Bench. Here we may refer to a two- Judge Bench decision in Prakash and another v. State of Madhya Pradesh[8] wherein it has been held as follows: -
"In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instance case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with."
17. It is worthy to note that in the aforesaid case this Court had laid down that when it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification or warrant to discard the credibility of such a dying declaration.
18. In Darshana Devi v. State of Punjab[9], this Court referred to the evidence of the doctor who had stated that the deceased was semi- conscious, his pulse was not palpable and his blood pressure was not recordable and had certified that he was not in a fit condition to make a statement after the police had arrived at the hospital and expressed the view that the deceased could not have made an oral statement that he had been burnt by his wife. Thus, emphasis was laid on the physical and mental condition of the deceased and the veracity of the testimony of the witnesses who depose as regards the oral dying declaration.
19. In Pothakamuri Srinivasulu alias Mooga Subbaiah v. State of A.P.[10], this Court, while dealing SC No. 1052/2016 Page 61 of 119 ASJ04/KKD/Delhi with the issue whether reliance on the dying declaration made by the deceased to PWs-1, 2 and 3 therein could be believed, observed thus: -
"7. We find no reason to disbelieve the dying declaration made by the deceased to the witnesses PWs 1, 2 and 3. They are all residents of the same village and are natural witnesses to the dying declaration made by the deceased. No reason is assigned, nor even suggested to any of the three witnesses, as to why at all any of them would tell a lie and attribute falsely a dying declaration to the deceased implicating the accused-appellant." (emphasis supplied)
85. In Pawan Kumar vs State of H.P, on 28 April, 2017, Criminal Appeal No. 775 of 2017, the Hon'ble Supreme Court held s follows:
"22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying SC No. 1052/2016 Page 62 of 119 ASJ04/KKD/Delhi declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
86. Thus in view of the law discussed hereinabove, conviction can be recorded on the basis of dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the court has to look for some corroborating evidence.
87. The statement of PW6 has to be examined on the touchstone of law discussed hereinabove. At the very outset, it may be noted that it was not a case, which to begin with has been registered under section 302 IPC. Initially, the FIR was registered under section 307 IPC and later 302 IPC was added after death of injured Yogesh. As per MLC Ex. PW13/A, the name of injured was Yogesh s/o Rajender Singh, his age was 38 years, he was a resident of Vaishali, Ghaziabad, UP, and he was brought by ASI Dharamvir at 11.40 pm on 16.09.2013 with a history of being found unconscious on the road side. Smell of alcohol was found present in his breath. He was declared unfit for statement at 11.58 pm.
88. The mere fact that the statement of deceased was recorded by a police officer does not mean that the same cannot SC No. 1052/2016 Page 63 of 119 ASJ04/KKD/Delhi be considered as a dying declaration, inasmuch as, provisions of section 32 of the Evidence Act do not mandatorily require that a dying declaration has to be recorded by a designated or a particular person. As observed by Hon'ble Apex Court in Dhan Singh v State of Haryana, 2010 VIII AD (SC) 539 that it is normally accepted that such declaration would be recorded by a Magistrate or by a doctor to eliminate the chances of any doubt or false implication by the prosecution during investigation. However, in terms of Sec. 32(1) of the Evidence Act, the statement made by the person as to the cause of his death or to such circumstances, are admissible. In that case also dying declaration was recorded by a Head Constable. Hon'ble Apex Court observed that there is no legal infirmity in the admissibility of such dying declaration. Hon'ble Apex Court referred to Cherlopalli Cheliminabi Sahed vs. State of A.P., (2003) 2 SCC 571, where it was stated that it is not mandatory that in every case, dying declaration ought to be recorded by a Magistrate and it depends on the facts and circumstances of the case. When there was no imminent danger to life of the deceased, preferably the statement should be recorded by the Magistrate. Hon'ble Apex Court also referred to Kanti Lal vs. State of Rajasthan, (2004) 10 SCC 113, where it was held that admissibility of dying declaration as to any of the circumstances which resulted in death must have some close and proximate relation with the actual occurrence and such proximity would depend upon the circumstances of each case. The dying declaration should be voluntary and should not be a prompted one. The physical as well as mental fitness of the maker has to be proved by the SC No. 1052/2016 Page 64 of 119 ASJ04/KKD/Delhi prosecution to the satisfaction of the Court. However, on facts the case was distinguished. But the fact remains that Hon'ble Apex Court in this case observed that mere fact that dying declaration was recorded by a police official does not mean that the same has to be kept out of consideration. The fact that dying declaration was not attested by any doctor is also no reason to disbelieve the same, inasmuch as, in Om Pal Singh vs. State of U.P., 2010 XI AD (SC) 397, it was held that absence of a certificate of fitness by the doctor would not be sufficient to discard the dying declaration. The certification by the doctor is a rule of caution. When statement made by the injured is candid, coherent and consistent, there is no reason to disbelieve the same. Normally, the court, as held in Nanhau Ram v. State of M.P., AIR 1989 SC 912, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eye witness state that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
89. In the present case, at the time when ASI Dharamvir reached the spot and found the injured lying there, he was not aware of the identity of the injured, however, despite the same, all details of the injured i.e. his name, parentage, age, address are mentioned in his MLC Ex. PW13/A. Additionally, PW13 who had medically examined the injured vide MLC Ex. PW13/A deposed in his cross-examination that the injured remained under his treatment for 5-10 minutes. During this period he remained drowsy, which fact is also mentioned in the MLC Ex. PW13/A. SC No. 1052/2016 Page 65 of 119 ASJ04/KKD/Delhi Hence, even as per PW13 Dr. Sachin, injured Yogesh was not unconscious at the time when he medically examined him. Though he was declared unfit for statement at 11.58 pm, it cannot be stated that the injured could not have given details about himself or the cause of his death to ASI Dharamvir, who had brought him to the hospital. It was in the normal course of things for ASI Dharamvir to ask the injured his name and other details as well as the names of persons, who caused injuries to him. In the event injured Yogesh was unconscious it would not have been possible for him to give his personal details, which are mentioned in his MLC, to ASI Dharamvir who gave the details of the injured in MLC Ex. PW13/A, which was made at 11.40 pm on 16.09.2013. The fact that the injured could give the aforesaid details to ASI Dharamvir while he was being taken to the hospital indicates that he was in such a condition that he could have also revealed the names of the assailants to him. Additionally, PW4 also deposed that he had called the police at 100 number, police reached there and at that time the injured was in conscious condition and was talking. Since the said declaration was made to ASI Dharamvir on way to the hospital, therefore, there was no occasion for him to have formally recorded it.
90. The fact that PW6 stated in his cross-examination that no smell of alcohol was coming from the mouth of injured cannot be given much emphasis as the witness may have been overtaken by events and the mental faculties of the witness cannot be expected to absorb all the details in given circumstances, when life and death of a person is involved. SC No. 1052/2016 Page 66 of 119 ASJ04/KKD/Delhi [Shahaja (supra) referred to]. The IO was not specifically questioned regarding the dying declaration made by injured Yogesh or as to why statement of PW6 was not recorded on that day itself and hence, the same cannot be given much significance. A vague suggestion has been given that PW6 came to know about the name and address of the injured from the visiting cards recovered from his pocket, however no visiting cards of the deceased were handed over to the police by the doctor who had handed over the exhibits of the deceased to PW24, which were seized by the IO vide seizure memo Ex. PW24/B.
91. It has come on record that deceased was in injured condition and he was taken to hospital by PW6 after receiving the two calls at 11:06 PM and 11:15 PM on the night of 16- 17.9.2013. The MLC was made at 11.40 pm as mentioned in MLC Ex. PW13/A. Injured Yogesh passed away on the same night and the information regarding his death was received at 3.30 AM vide DD No. 8B. As such there was imminent danger to his life when injured Yogesh told PW6 the names of his assailants to PW6. There was no question of tutoring the deceased at that time, inasmuch as, no family member or any other person was present in the hospital or when the injured was being taken to hospital. Under these circumstances, this oral dying declaration pertaining to the cause of death of deceased is admissible in evidence in which the deceased had clearly told PW6 that his friends Parvinder, Karan and Kamal had beaten him. The injuries caused to him eventually proved fatal. Since SC No. 1052/2016 Page 67 of 119 ASJ04/KKD/Delhi this statement made by the injured Yogesh related to the cause of his death, it is an oral dying declaration made by him before PW6 ASI Dharamvir, which is admissible in evidence. In these circumstances, the dying declaration of injured Yogesh, which also stands corroborated by the testimony of PW4, cannot be disregarded and is worthy of reliance.
Arrest and recovery of articles at the instance of the accused persons :
A) Accused Karan Verma :
92. As regards arrest of accused Karan Verma, it is argued that accused Karan Verma was arrested from his house and if he had committed the offence, he would have absconded. The pant of the accused Karan Verma upon which the alleged blood stains of the victim were found, was not recovered at the instance of the accused Karan Verma from his house. It is pointed out that as per the entry in register no. 19 and testimony of MHC(M) PW28 and Ex. PW28/A, which shows the entries made in the malkhana in register no. 19, the alleged pant, which was seized vide seizure memo Ex. PW32/A, was deposited in the malkhana on 17.09.2013, whereas accused Karan Verma was arrested on 18.09.2013 at 07.00 pm vide arrest memo Ex. PW4/A. It is urged that this fact clearly shows that the recovery of the alleged pant has been planted upon accused Karan Verma. The said fact also establishes that the recovery of pant was not made pursuant to the disclosure statement of accused Karan Verma and therefore it would not be a recovery admissible under section 27 of Indian Evidence Act. Additionally, the IO had SC No. 1052/2016 Page 68 of 119 ASJ04/KKD/Delhi collected all the exhibits of the deceased from the doctor vide seizure memo Ex. PW24/B, which included the following :
Blood in gauze and sealed pullanda containing shirt
- white & blue colour, underwear red colour, and two threads - red colour and sample seal 'LBSH DPMT' and sealed glass Jar No. 1 containing stomach with its contents part of small intestine, sealed glass jar no. 2 Liver spleen kidney, sealed glass bottle no. 3, blood in glass bottle and sample seal 'LBSH DPMT'.
93. It is argued that as is revealed in Ex. PW24/B, strangely, the pant of the deceased was not handed over and seized by the IO after the postmortem. It is urged that the said pant of the deceased has been planted upon accused Karan Verma by the IO vide seizure memo Ex. PW32/A and the said pant does not belong to accused Karan Verma and the recovery of the said pant has been shown from him to falsely implicate him in the present case. It is urged that in view of the above, the prosecution has failed to prove the continuous chain of proper recovery and custody of the pant of the deceased beyond reasonable doubt and hence, cannot rely upon the evidence based thereupon including the FSL result.
94. It is also stated that the sequence of event leading to arrest of accused Karan Verma are also questionable. It is contended that as per the prosecution version, the flat in issue i.e. Flat No. 456-A, Third Floor, South Ganesh Nagar, Delhi, was taken on rented by accused Parvinder, whereas in his examination-in-chief PW4 deposed that accused Karan Verma SC No. 1052/2016 Page 69 of 119 ASJ04/KKD/Delhi was residing on rent in his adjoining house and in his cross- examination by ld. Addl.P.P. for the State, he further deposed that during conversation, accused Karan Verma has told his address as C-Block, Shakarpur. In his cross-examination by ld. Counsel for accused, PW4 deposed that he had never visited the flat of Karan to meet him and Karan had never told him his mobile number or anything about his family members nor had he given his house number in Shakarpur. It is thus contended that the testimony of PW4 clearly indicates that PW4 was not aware of the address of accused Karan Verma and infact in his statement recorded before the Ld. M.M., Ex PW4/B, he had mentioned that accused Karan Verma had told his address to be at C-Block, Shakarpur. It is accordingly urged that accused Karan Verma was not arrested at the instance of PW4 as is also evident from the fact that despite the prosecution version that PW4 was present at the time of arrest of accused Karan Verma and recovery of pant from his house, the seizure memo Ex. PW32/A was not witnessed by PW4, despite him being allegedly present with the police at the time of arrest of accused Karan Verma. It is thus contended that PW4 did not know accused Karan Verma at all and has deposed regarding the address of accused Karan Verma only at the instance of the police as he is a planted witness.
95. From the perusal of testimony of PW4, it is revealed that PW4 has not stated that he had told the detailed and complete address of accused Karan Verma to the police. Infact PW4 has deposed that he had told the police that the address of Karan Verma was C-Block, Shakarpur. On 18.09.2013 he was SC No. 1052/2016 Page 70 of 119 ASJ04/KKD/Delhi called by the police telephonically and he reached the police station and from the PS he alongwith police reached the house of Karan Verma and upon his identification accused Karan Verma was arrested from his house vide his arrest memo Ex. PW4/A. It has not been claimed by PW4 that he had given complete address of accused Karan Verma to the police. PW32 stated that PW Prashant had informed about the address, however, not to him. Hence, even PW32 did not claim that the address of Karan Verma was told to him by PW Prashant. Even IO/PW34 has also not stated that the complete address of accused Karan Verma was provided by PW Prashant. IO/Insp. O.P.Sinha was not specifically asked as to how he got the complete address of accused Karan Verma. However, PW4 deposed that accused Karan Verma was arrested upon his identification, by the police and that he had signed his arrest memo Ex. PW4/A. Hence, much emphasis cannot be laid upon the manner in which the complete address of accused Karan Verma was obtained in light of the fact that accused Karan Verma was arrested upon identification of PW4 and the arrest memo Ex. PW4/A also bears his signatures.
96. As regards the recovery of the pant, it is contended by Ld. Addl.P.P. for the State that inadvertently in Ex. PW28/A, the MHC(M) has not mentioned the date i.e. 18.09.2013 regarding the deposit of the blood stained pant in the malkhana as the said pant was deposited immediately on the next day after 17.09.2013, when the other articles seized from the spot vide Ex. PW33/B were deposited on 17.09.2013 and the MHC(M) omitted SC No. 1052/2016 Page 71 of 119 ASJ04/KKD/Delhi to mention the date of deposit in the column "date of deposit' to be 18.09.2013 at the time of deposit of blood stained pant. On the next page immediately thereafter he has mentioned the date of 18.09.2013 and has made an entry for the other exhibits deposited on 18.09.2013 in the present matter. In this regard Ld. Addl.P.P. for the State has referred to the judgment of the Hon'ble Supreme Court in case titled as Balak Ram v. State of Uttarakhand, wherein the Hon'ble Supreme Court has held that unfettered power has been conferred by the statue under section 172(2) Cr.P.C. on the court to examine the entries of police diaries and the accused does not have similar right to inspect it. Ld. Addl.P.P. for the State has also referred to the decision of the Hon'ble supreme Court in the case of Malkiat Singh & Others v. State of Punjab 1991 (4) SCC 341 wherein the Hon'ble supreme Court held that under sub section (2) of Section 172 Cr.P.C. the court is entitled at the trial or at inquiry to use the diary not as evidence in the case but as an aid in the inquiry or trial.
97. In order to ascertain the veracity of the entry made in Ex. PW28/A, the relevant pages of the case diary produced by Ld. Addl.P.P. for the State regarding the investigation conducted on 17.09.2013 and 18.09.2013, has been perused. Ld. Counsel for the accused Karan Verma has also addressed his submissions thereon. It is argued by ld. Counsel for the accused persons that the case diary remains in the possession of IO and the entries in the same are made by the IO himself and it is self serving document. Hence, the same can be tampered with by the IO at his pleasure and therefore, it cannot be relied upon. SC No. 1052/2016 Page 72 of 119 ASJ04/KKD/Delhi
98. Section 172 of Cr.P.C. provides that every police officer making an investigation in a case shall, day by day, enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, place or places visited by him, and a statement of circumstances ascertained through his investigation. Sub Section (2) of Section 172 of Cr.P.C. envisaged that any criminal court may send for police diaries of a case under inquiry or trial in such court, and may used such diaries not as evidence in the case, but to aid it in such inquiry or trial. (Balak Ram v. State of Uttarakhand, 2017 2LRC 309 Supreme Court and Sonu @ Hemraj & Others v. State, 2021, 1AD (Delhi) 280, referred to.)
99. The case diaries were accordingly perused and the same were found to be in consonance with the seizure memo Ex. PW32/A of the blood stained light brown colour pant recovered at the instance of accused Karan Verma and that the same was deposited in the malkhana on 18.09.2013. Perusal of Ex. PW28/A i.e. the malkhana register indicates that the same also mentions the contents of the seizure memo Ex. PW32/A regarding the manner in which the pant was seized at the instance of accused Karan Verma and on the next following page other exhibits collected on 18.09.2013 are mentioned. The date of deposit is missing against the seizure memo of pant Ex PW32/A, even though the date of deposit is mentioned against the seizure memo of all other articles. Hence, the contention of the prosecution that SC No. 1052/2016 Page 73 of 119 ASJ04/KKD/Delhi the MHC(M) has inadvertently not mentioned the date of 18.09.2013 against the seizure memo of pant is clarified on perusal of the case diary and merits acceptance.
100. The contention that the words used in the seizure memo of pant Ex. PW32/A " Nimnlikhit gawaho ke samaksh, mulzim Karan Verma s/o Late Ajit Verma, r/o H.No. U-103, Shakarpur, Delhi, ke dwara apni pahni hui pant jo ghatna ke samay pahni thi", which was light brown in colour was blood stained and was torn from the back side, was produced by the accused from his house, indicate that the accused was wearing the same pant at the time of his arrest which he was wearing at the time of incident is untenable. In his cross-examination, regarding the said fact attention of PW33 SI Virender was drawn towards the seizure memo Ex. PW32/A wherein it is mentioned that "....Nimanlikhit Gawaho Ke Samksh Mujrim Karan Verma Ke Dwara Apni Pehni Hui Pant Jo Ghatna Ke Samay Pehni Thi......"
Following question was put to PW33 :
"Q. Can you tell whether your statement that the pant was got recovered from the balcony is correct or the facts mentioned in the seizure memo that "Apni Pehni Hui Pant" is correct? Ans. Both statements are correct. Apni Pehni Hui Pant refers to the pant which the accused was wearing at the time of incident."
101. Accordingly, as per PW33 the words "Apni Pehni SC No. 1052/2016 Page 74 of 119 ASJ04/KKD/Delhi Hui Pant" referred to the pant, which the accused was wearing at the time of incident. Hence, the said words "ke dwara apni pahni hui pant jo ghatna ke samay pahni thi" indicate that the said pant was worn by the accused at the time of incident and not that he was wearing the same pant at the time of his arrest.
102. As per the FSL result Ex. PW25/A and Ex. PW25/B blood group "A" was found on Ex. '6' i.e. pants, which were got recovered at the instance of accused Karan Verma on 18.09.2013 and seized by the IO vide seizure memo Ex. PW32/A. The accused has contended that the said pant did not belong to him and nothing has been brought on record by the prosecution to prove that the pant belonged to him only.
103. The abovesaid pant Ex. PW32/1 was got recovered by accused Karan Verma from his house i.e. U-103, Shakarpur, and the same was seized by the IO vide seizure memo Ex. PW32/A. In order to prove the said recovery, the prosecution has relied upon the testimony of PW32 HC Rajeshwar, PW33 SI Virender and PW34 Insp. O.P.Sinha. PW32 in his examination- in-chief deposed that after his arrest IO interrogated accused Karan Verma and thereafter his disclosure statement Ex. PW33/C was recorded and thereafter accused Karan Verma got recovered his light brown corduroy pants having blood stains stating that he was wearing the said pant at the time of incident. The stitches of the said pant were found broken (Silai Tuti Hui Thi). The said pant was kept in a cloth and a pullanda was prepared and it was sealed with the seal of "PS MANDAWALI MNDO3 EAST SC No. 1052/2016 Page 75 of 119 ASJ04/KKD/Delhi DISTT". The sealed pullanda of the pant was seized by the IO vide seizure memo Ex. PW32/A. Similarly PW33 also deposed regarding the arrest of accused Karan Verma from his house at U- 103, Shakarpur, Delhi, and his personal search conducted vide Ex. PW32/G. He also stated that the IO recorded the disclosure statement of accused Karan Verma Ex. PW33/C and accused Karan Verma got recovered light brown corduroy pants on which there were blood stains, which was kept in a sealed pullanda and seized by the IO vide Ex. PW32/A. IO/Insp. O.P.Sinha also deposed regarding the arrest of accused Karan Verma from his house and stated that the accused Karan Verma was interrogated and arrested vide arrest memo Ex. PW4/A and personally searched. He recorded the disclosure statement of accused Karan Verma Ex. PW32/C. The accused got recovered one corduroy pants of light brown colour which was blood stained, which he kept in a sealed pullanda vide seizure memo Ex. PW32/A. It is contended that no public witness including PW4, who was available, was joined at the time of recovery of the aforesaid pants and hence the same cannot be relied upon. In this connection in Tahir v. State, 1996 (3) SCC 338, the Hon'ble Supreme Court has held that:
"In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it SC No. 1052/2016 Page 76 of 119 ASJ04/KKD/Delhi can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case."
104. Similarly in Kalpnath Rai v. State, 1997 (8) SCC 732, the Hon'ble Supreme Court has held as follows :
"91. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non-examination of independent witness or even presence of such witness during police raid would cast an added duty on the court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that court must reject the prosecution version solely on the ground that no independent witness was examined. In Pradeep Narain Madgaonkar (supra) to which one of us (Mukherjee, J) is a party, the aforesaid position has been stated in unambiguous terms, the relevant portion 6f which is extracted below:
Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigation or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation; requires greater care to appreciate their testimony.
92. In Balbir Singh v. State this Court has repelled a similar contention based on non-examination of independent witnesses. The same legal position has been reiterated by this Court time and again vide Paras Ram v.
State of Haryana , Same Alana Abdullla v. State of Gujarat , Anil alias Andy a Sadashiv Nandoskar v. State of Maharashtra , Tahir v. State (Delhi) JT 1996(3) SCC 338."
105. Accordingly, no infirmity attaches to the testimony of police officials, it can be relied upon, where upon scrutiny, it inspires confidence and is found to be trustworthy and reliable.
SC No. 1052/2016 Page 77 of 119 ASJ04/KKD/Delhi PW32, PW33 and PW34 deposed that the pants were got recovered by the accused Karan Verma in pursuance of his disclosure statement. All the abovesaid three witnesses PW32, PW33 and PW34 in their cross-examination regarding recovery of the pants deposed that accused Karan Verma produced the pant from the balcony of his house. They also deposed that the recovered pant was not got tried by asking the accused to wear the same. The witnesses of recovery i.e. PW32, PW33 and PW34 have corroborated each other on all material points. No major contradiction could be pointed out in the testimony of PW32, PW33 and PW34 to create a doubt over recovery proceedings. Since the pants was recovered from the balcony of the house of the accused, which was not accessible to the public at large, therefore, there is no reason to disbelieve the testimony of recovery witnesses examined by the prosecution and hence the factum of recovery of the pant itself at the instance of accused Karan Verma is admissible under section 27 of the Evidence Act.
106. The recovered pants were sent to FSL Rohini for evaluation and analysis. As per FSL result Ex. PW25/A the FSL received parcel '6' i.e. one sealed cloth parcel sealed with the seal of "PS MANDAWALI MNDO3 EAST DISTT" containing Ex. '6' i.e. one cut/torn pants described to be of accused. As per the FSL result Ex. PW25/A and Ex. PW25/B blood group 'A' i.e. blood group of the deceased as present on gauze cloth piece described to be of deceased, was found on exhibit '6' i.e. (one cut/torn pants described to be of accused). Hence, the blood of the deceased taken by the doctor at the hospital had the same SC No. 1052/2016 Page 78 of 119 ASJ04/KKD/Delhi blood group 'A' as the blood group 'A' found on the blood stains on the pants recovered at the instance of the accused from his house. No explanation has been forthcoming as to how the blood group of the deceased was found on the pants recovered from his house.
107. In his statement recorded under section 313 Cr.P.C. accused Karan Verma deposed that the pant did not belong to him. At the relevant time his waist size was 32-34 inches whereas the pant produced before the court had waist size of 28 inches. The mere fact that the waist size of the pant produced before the court was 28 inches and the waist size of the accused being 32-34 inches is not sufficient to prove that the pant did not belong to the accused as the waist size can change over a period.
108. The fact that the pant was not got tried by the IO at the time of its recovery is not of much relevance. It was for the accused to explain how the pant having blood stains of the blood group of the deceased was found at his house. No further explanation was given regarding recovery of pants from his house. Once the aforesaid pants of the accused containing the blood stains of the deceased was recovered from the house of the accused, section 106 of the Evidence Act enjoined that the burden of proving that the said pant did not belong to the accused was upon the accused himself. Merely by stating that the waist size of the pants recovered from the house of the accused differed from the actual waist size of the accused is not sufficient explanation to discard the prosecution case. SC No. 1052/2016 Page 79 of 119 ASJ04/KKD/Delhi
109. During arguments ld. counsel for the accused Karan Verma urged that the said pants recovered from the house of accused Karan Verma belonged to the deceased and not to the accused Karan Verma as the pants of the deceased were not seized during his medical examination and were planted by the police. However, once the recovery of pants from the house of the accused containing blood stains of the blood group of the deceased, is proved, then it was for the accused in terms of Section 106 of the Evidence Act to explain how, assuming it was the pant of the deceased, was found at his house.
110. Accordingly, the blood group of the deceased was found on the pants of the accused and no cogent explanation has been given by the accused as to how the blood group of the deceased was found on his clothes. Even though no DNA analysis was conducted by the prosecution, however, in absence of any proper explanation and other evidence on record, an irresistible conclusion is that the presence of blood group of the deceased on the pants of the accused recovered from the house of the accused, is incriminating to the accused.
111. It is further urged that the Esteem car bearing registration no. DL-9CM-3003 was not recovered at the instance of accused Karan Verma. It is urged that even as per the testimony of PW34, IO of the case, the car was found about 700 meters to 1 km. away from the place of incident in the parking area and the keys of car were not found. One window pane of SC No. 1052/2016 Page 80 of 119 ASJ04/KKD/Delhi the car on the driver's side was found open and the car was towed to the police station. It is urged that the said car was found by the police near the place of incident itself without pointing out by accused Karan Verma. It is argued that the car was parked by the deceased himself and hence, no car keys were found by the police with accused Karan Verma. The car was recovered from the nearest parking area close to the place of incident.
112. It is the case of the prosecution that accused Karan Verma got recovered one Esteem car having registration no. DL- 9CM-3003 from the slip road near Railway Line Kudaghar, South Ganesh Nagar, Delhi, in pursuance of his disclosure statement. The prosecution examined PW32 HC Rajeshwar, PW33 SI Virender and PW34 Insp. O.P.Sinha to prove the recovery of the said car. The said car was seized vide seizure memo Ex. PW32/B. The said car was brought to PS and deposited in the malkhana. The car was got inspected by the IO by the Crime Team. After inspection the Crime Team made its report Ex. PW30/A. The photographs of the car are Ex. PW14/A1 to A10.
113. In their cross-examination PW32, PW33 and PW34 stated that the keys of the car were not found, the car was found in unlocked condition, the car was towed to the police station and the car was not got inspected by the crime team, mechanical or forensic experts at the time of recovery. PW34 deposed that some beer bottles were found at the time of initial inspection of the car. Finger prints and chance prints were lifted from the steering and SC No. 1052/2016 Page 81 of 119 ASJ04/KKD/Delhi empty beer bottles inside the car. He deposed that the report was obtained but it was reported the prints could not be developed. There are some discrepancies regarding the distance at which the aforesaid car was recovered. Whereas PW32 stated that it was recovered at the distance of 300-500 meters, PW33 stated that it was recovered at 700-800 meters to 1 km. and PW34 stated that it was recovered at about 1 km from the place of incident. PW34 also deposed that the car was recovered from a parking place where other cars were also found parked. It was a road side parking and not an authorized parking. Hence, the recovery of car was affected from an open space, which was accessible to one and all and not within exclusive knowledge or possession of the accused Karan Verma and was merely at a distance of 500 meters to 1 km from the spot and therefore such recovery cannot be termed as a recovery which can be relied upon by the prosecution in terms of Section 27 of the Evidence Act.
114. Attention of the court has been brought to the application seeking police custody remand of accused Karan Verma Ex. PW34/C. It is stated that the said application seeking police custody remand is dated 19.09.2013 wherein police custody remand was sought for recovery of the car of the deceased, which was stated to have not been recovered. It is stated that the police custody remand of the accused was therefore sought for recovery of car whereas the car of the deceased for which police custody remand was sought had already been recovered on the intervening night of 18/19.09.2013 vide seizure memo Ex. PW32/B. PW33 deposed that the said car SC No. 1052/2016 Page 82 of 119 ASJ04/KKD/Delhi was recovered on 19.09.2013 at about 00:30 hours. However, perusal of Ex. PW34/C reveals that the said application Ex. PW34/C was dated 19.09.2013 and was sought not only for recovery of car but for recovery of other articles of the deceased, hence, much cannot be deduced from the said application.
B) Accused Kamal Kumar :
115. Subsequently, after taking police custody remand of accused Karan Verma, a supplementary disclosure statement of accused Karan Verma was recorded vide Ex. PW32/D. It is the case of the prosecution as deposed by PW32 Const. Rajeshwar, PW33 SI Virender and PW34 Insp. O.P.Sinha that in pursuance to the said supplementary disclosure statement, accused Karan Verma led the police to the house of accused Kamal at Biharipura, near Sarvodya Public School, Ghaziabd. On 20.09.2013, at about 10.30/10.45 pm, PW34 Inspt. O.P.Sinha alongwith accused Karan Verma, Const. Rajeshwar and SI Virender reached H.No. 203, Biharipura, near Sarvodya Public School, Ghaziabd, of co-accused Kamal Kumar, where accused Kamal Kumar was present alongwith his wife Seema. Accused Kamal Kumar was arrested vide arrest memo Ex. PW32/E and his personal search was conducted vide memo Ex. PW32/F and his disclosure statement was recorded vide Ex. PW33/D. In pursuance to his disclosure statement, accused Kamal Kumar got recovered one old watch of make 'Titan" golden colour (Ex. PW33/P-6) from his house, which was taken into possession and seized vide seizure memo Ex. PW33/E. SC No. 1052/2016 Page 83 of 119 ASJ04/KKD/Delhi
116. Thereafter PW32, PW33 and PW34 alongwith accused Karan Verma and Kamal Kumar returned to the police station. On the next day, accused Karan Verma and Kamal Kumar were produced before the court. Accused Karan Verma was remanded to JC and one day police custody remand of accused Kamal Kumar was granted by the court upon an application moved by the IO.
117. Supplementary disclosure statement of accused Kamal Kumar Ex. PW32/I was recorded. In pursuance to his supplementary disclosure statement, accused Kamal Kumar led the police near Hindon River, parallel to highway Ghaziabad and accused Kamal Kumar got recovered one blue black colour bag (Ex. PW32/P3) from the bushes. The bag had four pockets on which ''The North Face'' was written on small pocket of bag. The bag belonged to the deceased and checking it was found containing (1) one diary on which Dr. Fixit was written (Ex. PW32/P5), (2) one passbook of Syndicate Bank in the name of deceased containing one cheque (Ex. PW32/P6), (3) cheque bearing no. 924285 (Ex. PW32/P7), (4)one cheque of HDFC Bank bearing no. 412749 (Ex. PW32/P8), (5) one cheque book of ICICI Bank containing two cheques bearing no. 003536 and 003539 (Ex. PW32/P9), (6) one cheque of South Indian Bank Ltd., having account no. 434053000000864 having blank cheques Sr. No. 406310 to 406325, one cheque no. 406306 (Ex. PW32/P10), (7) one black colour calculator make of CITIZEN (Ex. PW32/P11), (8) one Relinquishment Deed between Yogesh and his brother Naresh Kumar (Ex. PW32/P12), (9) one GPA dt. SC No. 1052/2016 Page 84 of 119 ASJ04/KKD/Delhi 16.10.1981 (Ex. PW32/P13), (10) one yellow colour T-shirt on which label of POLO was written (Ex. PW32/P14), (11) one grey, white and light blue colour shirt on which label of ACROPOLIS as written. The shirt was of stripes (Ex. PW32/P15), (12) one plastic folder of yellow colour containing treatment papers of deceased Yogesh, and other documents one pen of purple colour on which Flair Crye Clik was written and some documents & photocopies of Voter I- card of deceased were also in black and transparent folder [Ex. PW32/P16 (colly)], (13) 8 files of MCD. [Ex. PW32/P17 (colly)], (14) cash of Rs. 55/- out of which 5 notes were in denomination of Rs. 10/- and one coin of Rs. 5/- [Ex. PW32/P18 (colly)] and (15) one key ring having four keys (Ex. PW32/MO1). The aforesaid articles were kept in the same bag and the bag was kept in white colour cloth which was converted into pulanda and was sealed with the seal of 'PS Mandawali MND 03 East Distt'. Seizure memo Ex. PW32/J of the aforesaid bag containing the aforesaid articles and documents was prepared. The case property was deposited in Malkhana.
118. It is urged that the arrest memo of the accused Kamal Kumar does not bear signatures of any public witness or family member. Though accused Kamal Kumar was arrested from Ghaziabad UP, however, no local police official was joined at the time of his arrest as his arrest was falsely shown from Ghaziabad, UP, and the recovery of Titan watch of the deceased was planted upon him. It is contended that the arrest of accused Karan Verma is itself tainted for the reasons mentioned above SC No. 1052/2016 Page 85 of 119 ASJ04/KKD/Delhi and hence the arrest of accused Kamal Kumar, which was made at the behest of accused Karan Verma is also doubtful and is liable to be discarded. It is urged that the said fact is evident from the arrest memo of accused Kamal Kumar Ex. PW32/E as per which the date of arrest of accused Kamal Kumar is 20.09.2013 and the personal search memo of the accused Kamal Kumar Ex. PW32/F whereby the Titan watch was recovered from him is dated 18.09.2013 and the seizure memo of the Titan Watch Ex. PW33/E is 20.09.2013. It is argued that the alleged bag of the deceased was recovered from a place which was accessible to the public and hence recovery of the same cannot be imputed upon accused Kamal Kumar and the said recovery has been planted upon him by the police. It is stated that there are no public witnesses of arrest and recovery which shows that the IO has falsely implicated accused persons in the present case to solve the case and let go of the real culprits in the case namely Rajender Gupta, Dharmender Gupta and Mukesh Gupta.
119. Perusal of the arrest memo Ex. PW32/E reveals that the date of the arrest in the same is indicated to be 20.09.2013. The disclosure statement of accused Kamal Kumar Ex. PW33/D is dated 20.09.2013. Accused Kamal Kumar, while in custody of police, got recovered one wrist watch of make 'Titan' of gold colour from his house stating that the said wrist watch belonged to deceased Yogesh. The said wrist watch was seized vide seizure memo Ex. PW33/E dated 20.09.2013. Hence, the contention of the ld. Counsel for the accused that the said wrist watch got recovered in personal search of accused Kamal Kumar SC No. 1052/2016 Page 86 of 119 ASJ04/KKD/Delhi is contrary to record and is hence untenable. In their cross- examination PW32, PW33 and PW34 deposed that wife of accused Kamal Kumar was present at his house at the time of his arrest. No intimation was given to the local police regarding the arrest of accused Kamal Kumar, however, the said fact may be a procedural irregularity and not an illegality that could vitiate the arrest and recovery proceedings.
120. The witnesses of arrest i.e. PW32, PW33 and PW34 have corroborated each other on all material points. No suggestion has been given to the said witnesses that the accused was not arrested in the manner as deposed by the witnesses or that the accused was arrested in any other manner. No evidence has been led to prove that the accused was arrested in some other manner. No major contradiction could be pointed out in the testimony of PW32, PW33 and PW34 to create a doubt over arrest of accused Kamal Kumar and recovery of wrist watch of the deceased Ex. PW33/P-6 from his house. Recovery of the wrist watch of the deceased from the house of accused Kamal Kumar called for an explanation from the accused, however, no explanation in this regard was forthcoming except that the watch has been planted upon him by the police. Merely because the arrest and recovery witnesses were police officials does not lead to a conclusion that their testimony is liable to be discarded. (Kalpnath Rai v. State(supra) and Tahir v. State, (supra), referred to.)
121. As regards recovery of the bag, PW32, PW33 and SC No. 1052/2016 Page 87 of 119 ASJ04/KKD/Delhi PW34 have deposed that accused Kamal Kumar led the police to near Hindon River, parallel to highway Ghaziabad and accused Kamal Kumar got recovered one blue black colour bag (Ex. PW32/P3) from the bushes. It is stated that the bag was found at a place, which was accessible to public and therefore the recovery of the bag cannot be relied upon by the prosecution to connect accused Kamal Kumar with the offence in issue. From the testimony of PW32, PW33 and PW34 it is manifest that the bag was recovered from near Hindon River, parallel to highway Ghaziabad. In State of HP v. Jeet Singh, AIR 1999 Supreme Court 1293, the Hon'ble Supreme Court held as under :
"There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others. It would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows were it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. (Pulikuri Kottaya AIR 1947 PC 67). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir vs. State of Maharashtra (1969 2 SCC 872), K.Chinnaswamy Reddy vs State of Andhra Pradesh (AIR 1962 SC 1788), SC No. 1052/2016 Page 88 of 119 ASJ04/KKD/Delhi Earabhadrappa @ Krishnappa vs. State of Karnataka (1983 2 SCC 330), Shamshul Kanwar vs. State of U.P. (1995 4 SCC 430), State of Rajasthan vs. Bhup Singh 1997 10 SCC 675)."
122. Accordingly, since the recovery of bag was affected from the bushes at the instance of accused Kamal Kumar, who alone knew where it was until he disclosed about the presence of the bag in the bushes and was thus not ordinarily visible to others. Therefore, the fact that the bag was concealed in the bushes, which were accessible to others would be immaterial. Hence, the factum of recovery of bag at the instance of accused Kamal Kumar would be admissible under section 27 of the Indian Evidence Act.
C) Accused Parvinder Singh Yadav :
123. On 16.10.2013, PW34 IO/Insp. O.P.Sinha received information through HC Shiv Kumar, PS Burari regarding the arrest of accused Parvinder under section 41.1 Cr.P.C and he further informed that accused Parvinder will be produced before Tis Hazari Court on 17.10.2013. On 17.10.2013, PW34 went to Tis Hazari Court where HC Shiv Kumar produced accused Parvinder before the court. PW34 moved an application before the ld. MM for interrogation and arrest of accused Parvinder, which was allowed and IO interrogated accused Parvinder and recorded his disclosure statement Ex. PW26/B. Accused Parvinder Singh was arrested vide Arrest Memo Ex. PW26/A. On 19.10.2013 PW34 moved an application Ex. PW34/E for police custody remand of accused Parvinder Singh and two days SC No. 1052/2016 Page 89 of 119 ASJ04/KKD/Delhi police custody remand was granted.
124. On 20.10.2013, accused Parvinder Singh made supplementary disclosure statement Ex. PW33/F. Accused Parvinder Singh led police team to the spot i.e. H.No. 456-A, Third Floor, South Ganesh Nagar, Delhi and pointing out memo was prepared vide Ex. PW33/G. Accused Parvinder Singh led the police under the bridge of Ganesh Nagar after crossing the railway line in the side of Pagdandi going to Shakarpur and pointed out the bushes where he had thrown the purse and mobile phone of the deceased. At his instance one first page of cheque book of deceased on which address and account number i.e. 627701501228 (Ex. PW33/P8) was printed and PAN card of the deceased (Ex. PW33/P7) were also recovered. IO kept said exhibits in sealed envelop and the same were seized vide seizure memo Ex. PW33/H. IO also prepared the pointing out memo of place of recovery vide Ex. PW33/I. IO also prepared the site plan of place of recovery of PAN Card and documents vide Ex. PW34/F.
125. Accused Parvinder Singh thus had led the police under the bridge of Ganesh Nagar after crossing the railway line in the side of Pagdandi going to Shakarpur and pointed out the bushes where he had thrown the purse and mobile phone of the deceased. However, the purse and mobile phone of the deceased were not recovered but one first page of cheque book of deceased on which address and account number (Ex. PW33/P8) was printed and PAN card of the deceased (Ex. PW33/P7) were SC No. 1052/2016 Page 90 of 119 ASJ04/KKD/Delhi recovered from there. Hence, though the purse and mobile phone of the deceased were thrown in the bushes, however, they were not recovered and only one first page of cheque book of deceased on which and PAN card of the deceased were recovered from there, thereby indicating that someone else had accessed that place and thus only the contents of the purse were found at that spot, Therefore the purse and the mobile phone of the deceased did not remain in a hidden state or an unhampered state and the said articles had been retrieved and also opened by someone else. Therefore, the said recoveries made pursuant to disclosure by accused Parvinder are not admissible under section 27 of the Indian Evidence Act. However, the other evidence available on record is sufficient to prove the culpability of accused Parvinder.
Call detail record and location:
126. IO/PW34 collected the CDR of mobiles no.
9910917889, 9540964572, 9582730131 and 9582223736.
127. As per Ex. PW8/A, mobile number 9910917889 was in the name of Sarita Chaudhary w/o Sh. Yogesh Chaudhary, deceased. The CDR of the said mobile for the period between 11.9.2013 to 20.09.2013 is Ex. PW8/B. The Cell ID Chart of the said mobile is Ex. PW8/C. The certificate under section 65 B of Indian Evidence Act is Ex. PW8/D. As per the said CDR Ex. PW8/B and location chart Ex. PW8/C, on 16.09.2013 the location of the said mobile after 22:09:54 is indicated to be Ganesh Nagar, Shakarpur, Delhi. The location at 20:20:21 on 16.09.2013 is at South Ganesh Nagar, Shahdara, Delhi. SC No. 1052/2016 Page 91 of 119 ASJ04/KKD/Delhi Accordingly, the location of deceased Yogesh was indicated to be at South Ganesh Nagar/ Ganesh Nagar, Delhi, around the time of incident.
128. As per Ex. PW19/D, mobile number 9582223736 was registered in the name of Kamal Kumar, s/o Sh. Gopal Babu. The CDR and location chart of the said mobile is Ex. PW19/E. The certificate under section 65 B of Indian Evidence Act is Ex. PW19/F.
129. As per Ex. PW19/E, the location of said mobile number 9582223736 on 16.09.2013 at 21:21:22 was at South Ganesh Nagar and remained there till 22:50:58 and thereafter at Main Road Mandawali Village. Hence, the location of accused Kamal Kumar was indicated to be at South Ganesh Nagar, Delhi, around the time of incident.
130. As per Ex. PW19/A, the mobile number 9582730131 was registered in the name of one Neha, d/o Sh. Adarsh. The CDR and location chart of the said mobile is Ex. PW19/B. The IMEI number of the mobile phone indicated therein is 353004053313530. The said IMEI number is also reflected in the personal search memo of accused Karan Verma Ex. PW32/G indicating that one mobile phone black colour 'Samsung' modal GT3262 having IMEI No. 353004053313537 (except for the last digit which is considered not relevant as per settled law as decided in Gajraj v. State, 2009 SCC OnLine Del 4351) was recovered at the time of personal search of accused SC No. 1052/2016 Page 92 of 119 ASJ04/KKD/Delhi Karan Verma. The certificate under section 65 B of Indian Evidence Act is Ex. PW19/C. It is the contention of the Ld. Counsel for the accused persons that the said mobile phone was seized by the police during personal search of the accused Karan Verma and hence, the same cannot be relied upon as evidence to connect the accused with the incident in issue as the same was also not produced during recording of prosecution evidence at any stage.
131. The personal search memo of accused Karan Verma is Ex. PW32/G, in which the IMEI No. is reflected as 353004053313530 and the SIM No. mentioned therein is 80025679441, which is the SIM No. reflected in CAF Ex. PW19/A of mobile phone no. 9582730131, thereby indicating that the said mobile SIM mentioned in Ex. PW32/G was being used with the number 9582730131. The contention that the physical mobile phone was not produced before the court and therefore the said CDR and CAF cannot be relied upon as evidence against accused Karan Verma is untenable in as much as neither PW32, or PW33 or PW35 have been cross-examined on the contents of the personal search memo. No suggestion has been given to any of these witnesses that no mobile phone was recovered during personal search of accused Karan Verma. No suggestion has been given to PW19 that the said mobile no. 9582730131 was not being used with SIM No. 80025679441. Hence, it is proved on record that mobile number 9582730131 seized during personal search of accused Karan Verma was being used in the 'Samsung' phone recovered from him during his SC No. 1052/2016 Page 93 of 119 ASJ04/KKD/Delhi personal search Ex. PW32/G.
132. In Suraj @ Sonu vs State decided on 23 December, 2022, CRL.A. 571/2014, the Hon'ble Delhi High Court also relied upon the CDR contained in the mobile phone recovered in personal search of the accused, whereas call owner details of the mobile number were that of someone else, on the basis of the matching of the IMEIs on what was seized from accused and that in the CDR and it was observed as follows:
"6.4 The Nokia phone recovered in the personal search of Sonu Dahiya (vide search memo Ex. PW-28/B) had IMEI No.352768044436257 which matches with the IMEI number as mentioned in the CDR of Sonu Dahiya's mobile No.9818162060 at Ex. PW-9/B (except for the last digit which is considered not relevant as per settled law as decided in Gajraj v. State, 2009 SCC OnLine Del 4351). Although, the call owner details of this number (was that of Ganesh as deposed by PW-9), however the matching of the IMEIs on what was seized from Sonu Dahiya and that in the CDR corroborating the calls which had been made, would be sufficient to prove that mobile number 9818162060 was used by Sonu Dahiya thereby providing a link in the chain of circumstances."
133. As per Ex. PW19/B, the location of said mobile number 9582730131 on 16.09.2013 from 16:47:11 was at South Ganesh Nagar, Delhi and remained there till 22:25:55 and thereafter at Vikas Marg, Laxmi Nagar, Delhi at 23:37:33. Hence, the location of accused Karan Verma was indicated to be at South Ganesh Nagar, Delhi, around the time of incident.
134. PW18 Sh. Amarnath Singh has deposed that as per record mobile number 9540964572 was registered in the name of SC No. 1052/2016 Page 94 of 119 ASJ04/KKD/Delhi Ajit Kumar Singh. The customer application form of the said mobile alongwith supporting documents i.e. election I-Card is Ex. PW18/A. The CDR of the said mobile for the period between 11.9.2013 to 20.09.2013 is Ex. PW18/B. The certificate under section 65 B of Indian Evidence Act is Ex. PW18/C. The Cell ID Chart of the said mobile is Ex. PW18/D.
135. It is stated by Ld. Addl.P.P. for the State that the above said mobile number i.e. 9540964572 was being used by accused Parvinder Yadav as the said mobile number is indicated in the police verification form submitted before the police by Sandeep Sharma, landlord of Parvinder Yadav, at the time when the Flat No. A-456, Third Floor, South Ganesh Nagar, Delhi, was let out to him by Sandeep Sharma. The said police verification form is Mark-A, which was handed over by PW16, wife of Sandeep Sharma, to the IO and seized vide seizure memo Ex. PW27/A.
136. In this regard PW16 Sunita Sharma deposed that she had gone to police station and handed over the ownership proof and documents regarding tenancy to the IO. The photocopy of GPA in favour of her husband is Ex. PW16/A and the rent agreement is Ex. PW16/B. Copy of police verification was marked as Mark-A. PW27 deposed that on 19.11.2013 Ms. Sunita Sharma produced documents regarding tenancy and ownership, which were seized by the IO vide seizure memo Ex. PW27/A. The documents were already Ex. PW16/A, PW16/B and Mark-A. Perusal of Ex. PW27/A, i.e. seizure memo reveals SC No. 1052/2016 Page 95 of 119 ASJ04/KKD/Delhi that Sunita Sharma w/o Sandeep Sharma, produced original rent agreement of Parvinder Yadav, r/o H.No. 456/A1, Third Floor, South Ganesh Nagar, Delhi (4 pages) and photocopies of GPA of H.No. 456/A, Third Floor, South Ganesh Nagar, Delhi (6 pages). The photocopy of GPA on record Ex. PW16/A comprises six pages and the rent agreement Ex. PW16/B comprises four pages. Accordingly, there is no mention of any police verification form in Ex. PW27/A, nor the same is included alongwith the rent agreement which itself comprises of four pages. Hence, the alleged phone number of accused Paminder mentioned in the said police verification form cannot be ascribed to accused Parvinder, as it has not been proved on record even otherwise that mobile no. 9540964572 belonged to accused Parvinder. Hence, the CDR of the said mobile number cannot be connected with accused Parvinder. However, dehors the said fact, there is substantial evidence to connect accused Parvinder with the offence in issue.
137. As per the CDRs of accused Kamal Kumar Ex.
PW19/E and deceased Yogesh Ex. PW8/B, accused Kamal Kumar made a call from his mobile no. 9582223736 to deceased Yogesh at his mobile no. 9910917889 on 16.09.2013 at 02.57 pm and also on 15.09.2013 at 07.27 pm.
138. The above said CDRs point to the fact that the accused Kamal Kumar was in touch with deceased Yogesh, thereby showing that they were connected with each other.
Testimony of PW20 Sarita :
SC No. 1052/2016 Page 96 of 119 ASJ04/KKD/Delhi
139. Prosecution has also examined PW20 Sarita, wife of deceased Yogesh, as a witness, who deposed that a case under section 138 Negotiable Instruments Act had been filed by her husband deceased Yogesh and that her husband was restrained twice at a dhaba/eatery situated opposite Ganesh Kachoriwala, Laxmi Nagar, Delhi, and he was threatened to withdraw the petition under section 138 of Negotiable Instruments Act and that he was also receiving threatening calls. She deposed that she had also informed the IO that 5-6 days prior to the incident, that her husband had been called at that dhaba by accused Parvinder and Kamal and when her husband went there, Parvinder and Kamal gave him a cheque of Rs. 7,90,000/- on behalf of one Rajender Gupta. She stated that she had seen accused Parvinder and Kamal during trial of this case. She stated that she also informed the IO that her husband told her that he was hesitating to accept the cheque as earlier cheque issued by Rajender Gupta had bounced, however, Parvinder and Kamal asked her husband to present the cheque after a week and assured that the cheque would be cleared and the matter would be sorted. She further deposed that on 16.09.2013 starting from morning till 08.00 pm she had telephonic conversation with her husband 8-10 times, when he informed her that he was probably receiving calls from Parvinder and Kamal telling him to bring the case file of petition under section 138 Negotiable Instruments Act and the cheque given on behalf of Rajender Gupta, and take cash amount and settle the matter out of the court. She asked her husband not to go but he said that he would go and that the mediators i.e. Kamal and Parvinder would also be reaching there. In the last call SC No. 1052/2016 Page 97 of 119 ASJ04/KKD/Delhi between her and her husband, her husband told her that he was about to reach that place within five minutes and thereafter the call got dropped and the mobile phone of her husband was out of reach. On 17.09.2013 at about 08.00-09.00 pm Rajender Gupta, his son Mukesh Gupta and his wife were called in the police station and she was asked if she could identify them. She stated that after seeing those persons she identified them by names before IO and was informed by the IO that those persons had confessed about the crime and also disclosed the names of the persons, who were hired by them for committing the crime. IO informed her that Karan, Kamal, Parvinder and Monu are the persons, who had been hired by Rajender Gupta, his son and wife for committing the crime. Thereafter she was asked by the IO to come next morning at LBS Hospital, where she identified the dead body of her husband vide identification memo Ex. PW20/A and the body of the deceased was handed her over vide handing over memo Ex. PW20/B. She stated that she had also given a written complaint dated 20.09.2013 to ACP/SHO PS Mandawali (received copy) Ex. PW20/C. Certified copy of complaint dated 23.07.2014 made to Joint C.P. is Ex. PW20/D. As per the direction of Joint C.P. her complaint was marked to P.G.Cell. Received copy of complaint given to Chowki Incharge Police Post Karkardooma Courts, dated 22.08.2014 is Ex. PW20/E. During investigation, IO/Insp. O.P.Sinha recorded her statement under section 161 Cr.P.C.
140. It is argued that in order to add motive to the alleged murder of victim Yogesh, the prosecution has relied upon the SC No. 1052/2016 Page 98 of 119 ASJ04/KKD/Delhi evidence of PW20, wife of the deceased. It is urged that three statements of PW20 Ms. Sarita Chaudhary were recorded by the police under section 161 Cr.P.C. The first statement was recorded on 18.09.2013 in which she had merely mentioned that her husband was working and was doing laison work with MCD, the documents he used to carry in a bag, the Esteem car of her husband in which he used to keep a bag and the documents contained therein. She had also mentioned about the identification of dead body of her husband. Subsequent statement of PW20 Ms. Sarita Chaudhary was recorded by the police under section 161 Cr.P.C. on 12.10.2013 in which she suspected that one Rajender Gupta, Dharmender Gupta and his son Mukesh Gupta had killed her husband. The counsel for the accused persons also referred to the complaint dated 20.09.2013 Ex. PW20/C filed by PW20 with SHO PS Mandawali in which also she suspected that her husband was killed by Rajender Gupta, his brother Dharmender Gupta and his son Mukesh Gupta. Subsequently another complaint was filed by PW20 with the Joint CP vide Ex. PW20/D, wherein PW20 mentioned that her husband was got murdered by Rajender Gupta, Dharmender Gupta and Mukesh Gupta and no action had been taken against them. She further stated that the people, who had committed murder i.e. Karan Verma, Kamal Kumar and Parvinder were already in jail. She wanted action to be taken against Rajender Gupta, Dharmender Gupta and Mukesh Gupta.
141. The counsel for the accused persons have referred to the testimony of PW20 and stated that PW20 has made SC No. 1052/2016 Page 99 of 119 ASJ04/KKD/Delhi considerable improvements over her statements recorded by the police on 18.09.2013 Ex. PW20/DB and statement dated 12.10.2013 Ex. PW20/DA wherein she has not made any allegations against the accused persons and hence, her testimony qua the accused persons is liable to be rejected. It is urged that though in her statement Ex. PW20/DA, PW20 has categorically stated that her husband deceased Yogesh was going to meet Rajender Gupta, Dharmender Gupta and Mukesh Gupta, however, in her testimony recorded before the court she has stated that her husband, deceased Yogesh, had told her that he was going to meet accused Parvinder and Kamal and thereby contradicting her earlier version. It is urged that the version given by PW20 in her testimony recorded before the court is a material improvement over her initial statements given to the police and there are material contradictions in the statements, which have been duly put to PW20 during her testimony recorded before the court. It is stated that during the stage of investigation, PW20 had never named the accused persons to be the murderers of her husband, deceased Yogesh and it is only during recording of her testimony, that she has named the accused persons to have killed her husband, thereby pointing to fabrication and after-thought. Hence, the motive for the crime attributed by PW20 is not worthy of being looked into. It is urged that the accused persons have been falsely roped in the present case by the IO in connivance with PW20. It is stated that the said facts show that the IO has falsely implicated accused persons in the present case to solve the case and let go of the real culprits in the case namely Rajender Gupta, Dharmender Gupta SC No. 1052/2016 Page 100 of 119 ASJ04/KKD/Delhi and Mukesh Gupta.
142. Hence, at the stage of investigation, PW20 pointed fingers at one Rajender Gupta, Dharmender Gupta and Mukesh Gupta, however, the investigation by the IO is completely silent on this aspect and the IO/PW34 deposed that PW20 Savita Gupta disclosed the name of Rajender Gupta, Pankaj Jain and Monu, who were involved in the present case but he had not recorded statements of those persons and had interrogated them. Upon interrogation, Rajender Gupta, Pankaj Jain and Monu were not found to be involved in the present case and he had not mentioned the said fact in the charge sheet. Strangely despite the wife of the complainant giving specific names of the suspects and also one Monu, as the fourth assailant, no investigation seems to have been conducted by the IO in that direction and the charge sheet is completely silent on the same. Nothing has been placed on record to show the action taken on the complaints made by PW20 as mentioned hereinabove. It is stated by Ld. Addl.P.P. for the State that the prosecution is not relying upon the testimony of PW20 for determination of motive as present case is a case of direct evidence.
143. From the testimony of PW20, it is manifest that she is not an eye witness to the incident. During the stage of investigation, she did not reveal the names of accused persons to be involved in the instant case and she has named the accused persons Karan Verma, Kamal Kumar and Parvinder to be involved in the present case in her testimony recorded before the SC No. 1052/2016 Page 101 of 119 ASJ04/KKD/Delhi court. She has stated that the reason for murder of her husband was a petition filed by him under section 138 Negotiable Instruments Act, which was being settled through the accused persons. However, there is nothing on record to substantiate the said assertion of the complainant. Neither the 138 N.I.Act complaint has been placed on record by PW20 nor there is any investigation in that regard conducted by the IO. Hence, the testimony of PW20 cannot be relied upon to attribute any motive upon the accused persons.
Defence taken by accused persons :
144. In their statement recorded under section 313 Cr.P.C. the accused persons have stated that they have been falsely implicated in the case by the police. The other defences taken by the accused persons have already been dealt with hereinabove. They have also stated that they were not present at the spot at the time of incident. The accused persons in their defence have examined DW1 Sudhanshu Shekhar, who also made a 100 number call from his mobile no. 9510174732 at about 11.00 am, who also deposed that the police case about half an hour after the incident and inquired his name and address and thereafter the police did not meet him. He stated that there were public persons present at the spot. He did not see the persons involved in the quarrel. He also stated that he did not see accused Karan Verma at the spot.
145. DW1 was cross-examined by Ld. Addl.P.P. for the SC No. 1052/2016 Page 102 of 119 ASJ04/KKD/Delhi State wherein he stated that he did not remember the dates of Holi and Diwali festivals in the year 2013. He knew Karan Verma for the past 4-5 years. He had never seen him prior to that. He had come to depose at the instance of accused Karan Verma. He stated that the mobile phone phone was gifted to him by an advocate. He did not remember the date, month and year when he got issued mobile no. 9510174732 or the documents in support of the application. He did not have any proof to show that he made a PCR call on 16.09.2013 regarding the quarrel. He denied that he never made a PCR call or that no inquiries were made from him by the police official. He also denied that he was not present at the spot on the date of incident or that he had not seen the incident of quarrel. He stated that he did not know accused Karan Verma directly but his family members approached him and inquired from him, if he had made a call at 100 number and he told that he had. He denied that he was deposing falsely at the instance of accused and under undue pressure.
146. DW2 SI Udaiveer Singh produced CPCR record with regard to the deletion of old data of PA 100 system vide Ex. DW2/1.
147. SI Neha Chaudhary of PCR Unit, RTI Cell, was examined as DW3. She produced the RTI register as per which Parvinder Singh had sought information under RTI Act which was duly responded to by the department vide Ex. DW3/1.
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148. As regards the plea of alibi the Hon'ble Supreme Court in the catena of judgments has held that the plea of alibi has to be proved with absolute certainty so as to completely exclude the possibility of presence of the accused at the spot at the relevant time. When plea of alibi is raised by an accused, it is for the accused to establish the said plea by positive evidence. (Rajesh Kumar v. Dharmvir & Others, decided by the Hon'ble Supreme Court on 12.03.1997,referred to.)
149. In the present case no positive evidence has been led by the accused Karan Verma to show that he was not present at the spot at the time of incident. The only evidence led in this regard is of DW1, who had deposed regarding making a 100 number call to the police. Though he stated that he did not see accused Karan Verma at the spot, however, he also stated that he did not see the persons involved in the quarrel, hence, the testimony of DW1 does not affirmatively establish the fact that accused Karan Verma was not present at the spot at the time of incident.
150. The counsel for the accused also examined DW3 and had put document Mark-Y to DW3. The said document pertain to the PCR calls, which were received at CPCR on 16.09.2013 in connection with the present incident. None of the four PCR calls indicated therein have been made from mobile no. 9510174732 belonging to DW1 and hence, the presence of DW1 himself is not assured at the spot on the basis of documents relied upon by the accused persons.
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151. Be that as it may even DW1 has deposed that he had not seen the persons involved in the quarrel and therefore his testimony does not further the defence taken by accused Karan Verma. The plea of absence of accused Karan Verma at the spot is hence not made probable by the evidence on record. Accordingly, accused Karan Verma has miserably failed to prove the plea of alibi beyond reasonable doubt. No evidence has been led by the accused Kamal Kumar and Parvinder to prove the said plea of alibi taken by them at the stage of recording of their statement under section 313 Cr.P.C. and hence it remains only a bald defence.
Analysis and findings :
152. As discussed hereinabove, the testimony of PW4 is a natural version of the events that transpired at the time of incident. His testimony stands corroborated by the oral dying declaration of deceased Yogesh made to PW6 ASI Dharamvir and also by medical and forensic evidence. They are trustworthy and inspire the confidence of the court to be relied upon. There is no reason to disbelieve the testimony of PW4 Prashant Kumar and PW 6. No cogent reason for false implication of the accused persons by PW4 has been established on record. The testimony of eye witness PW4 Prashant Kumar, oral dying declaration given to PW6 ASI Dharamvir by deceased Yogesh, prove the involvement of the accused persons in the offence in issue. Additionally, the FSL result Ex. PW25/A and PW25/B as per which the blood group 'A' of the deceased was found on the SC No. 1052/2016 Page 105 of 119 ASJ04/KKD/Delhi pants Ex.'6' recovered at the instance of accused Karan Verma and one of the blood stained wooden sticks Ex. PW33/P-2 to P-4 found at the spot i.e. Flat bearing no. A-456, Third Floor, South Ganesh Nagar, Delhi, also corroborate their version. Moreover, as per the opinion given by PW5 the cause of death was cerebral damage with shock consequent upon multiple injuries caused by blunt force impact by hard object/weapon. Injury No. 1 to 18 were sufficient to cause death in ordinary course of nature. He also deposed that the hard object/weapon meant a piece of furniture, danda, fist etc. Accordingly, the medical and scientific evidence corroborates the testimony of the eye witnesses namely PW4 Prashant Kumar, who deposed that the assailants including the accused persons were giving beatings to deceased Yogesh and one of them had also hit him on his head with brick, which is a hard object. In these circumstances, it is proven on record that the beatings causing injuries were given to deceased Yogesh by the accused persons with the aid of wooden sticks and brick, which eventually caused his death. The articles of deceased ie of watch and bag containing articles of the deceased Yogesh were recovered at the instance of accused Kamal Kumar. Besides, the location details of the accused Karan Verma, Kamal Kumar and deceased Yogesh at the spot as revealed in the CDRs also connect them with the offence. The aforesaid evidence leads to an irresistible conclusion that injuries were caused to deceased Yogesh by the accused Karan Verma, Kamal Kumar and Parvinder Singh, which eventually proved fatal. In these circumstances, the prosecution has been able to establish beyond doubt that on 16.09.2013, in between 10.00 pm to 11.00 pm, the SC No. 1052/2016 Page 106 of 119 ASJ04/KKD/Delhi accused persons Karan Verma, Kamal Kumar and Parvinder Singh had caused injuries to deceased Yogesh to which he succumbed on the intervening night of 16/17.09.2013 itself.
153. At this stage, it would be relevant to examine as to whether accused Karan Verma, Kamal Kumar and Parvinder are guilty of the charged offence of murder under section 302/34 IPC for causing death of deceased Yogesh by causing injuries to him.
154. It is contended by ld. Addl.P.P. for the State that in case of direct evidence of an eye witness, it is not necessary to separately prove the motive behind the offence. It is stated that in the instant case, the accused persons gave merciless beatings to the deceased, who succumbed to those injuries, hence, motive is not separately required to be proved in such a case.
155. In this connection, it would be relevant to refer to the decision of the Hon'ble Supreme Court in Subodh Nath v. State of Tripura, (2013) 4 SCC 122 wherein the Hon'ble Supreme Court has observed as there is direct evidence of the accused having committed the offence, motive becomes irrelevant. Motive becomes relevant as an additional circumstance in a case where the prosecution seeks to prove the guilt by circumstantial evidence only. (Brahm Swaroop v. State of U.P., (2011) 6 SCC 288, also referred to.)
156. In the present case the testimony of eye witness PW4 stands corroborated with other evidence on record and SC No. 1052/2016 Page 107 of 119 ASJ04/KKD/Delhi hence, proof of motive is not relevant to establish the guilt of the accused persons. Hence, the facts brought on record on record will have to be examined to deduce the offence made out in the present case.
157. From the testimony of PW4 it emerges that he had seen that four persons were beating one person at the time of incident. He also noticed that one of them started assaulting Yogesh with a brick. Thereafter he went inside and made a call to police at 100 number. Thereafter three accused persons dragged him to just near his flat where there was sufficient light and the accused persons again started assaulting Yogesh. The assailants appeared to be under influence of liquor at that time. He deposed that he came to know about the incident/quarrel at about 10 pm and it lasted till 10.45 pm.
158. Accordingly, PW4 had witnessed the assailants beating deceased Yogesh at the time of incident and one of them had hit him on his head with a brick. There were four assailants and chargesheet was filed only against three accused persons. The accused persons were not carrying any weapons with them. They were consuming liquor and gambling as the playing cards and liquor bottle Ex. PW33/P-5 (colly) were also recovered from the said flat. As per the postmortem Report, deceased had consumed Ethyl Alcohol 192.8 mg per 100 ml. of blood. PW4 also deposed that the assailants appeared to be under the influence of alcohol at the time of incident. No weapon was recovered either from the place of incident or from any of the SC No. 1052/2016 Page 108 of 119 ASJ04/KKD/Delhi accused persons. Three pieces of blood stained wooden sticks Ex.PW33/P-2 to P-4 were recovered from the flat and PW4 also deposed that the deceased was hit with brick on his head by one of the assailants. 18 external injuries and internal head injuries were caused to him, which eventually lead to his death. It is contended that the incident occurred on a spur of moment and the accused persons were unarmed thereby indicating that the attack was not premeditated and hence, the present case would fall under Exception 4 of Section 300 IPC and not under section 302 IPC.
159. At this stage, it is relevant to produce Section 300 which is as under:-
"s.300. Murder--.Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- Secondly-- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-- Thirdly-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
......x.....xx.....xx..... x.......... ......x.....xx.....xx..... x.......... SC No. 1052/2016 Page 109 of 119 ASJ04/KKD/Delhi ......x.....xx.....xx..... x.......... Exception 4-- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault. .........."
160. The Hon'ble Supreme Court has, in Shaikh Majid & Anr. Vs. State of Maharashtra & Ors., 2008- (114)-CRLJ -1062
-SC, explained the true position on Exception 4 to s. 300 IPC as follows:
"For bringing in operation of Exception 4 to S. 300 I.P.C., it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender hav- ing taken undue advantage and not having acted in a cruel or unusual manner.
The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable SC No. 1052/2016 Page 110 of 119 ASJ04/KKD/Delhi would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not ag- gravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Ex- ception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the of- fenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the ver- bal altercation in the beginning. A fight is a combat be- tween two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not suffi- cient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advan- tage" as used in the provision means "unfair advantage".
161. In State of A.P. vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382, the Hon'ble Supreme Court while drawing a distinction between Section 302 and Section 304 held as under:-
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of SC No. 1052/2016 Page 111 of 119 ASJ04/KKD/Delhi culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304 IPC."
162. In para 21 of the abovesaid judgement, the Hon'ble Supreme Court further observed as follows:
"21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304 of the Penal Code."
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163. In Budhi Singh vs. State of Himachal Pradesh, (2012) 13 SCC 663 this Court has held as under:-
"18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.
19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."
164. In Kikar Singh vs. State of Rajasthan, (1993) 4 SCC 238, the Hon'ble Supreme Court held as under:-
"8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh SC No. 1052/2016 Page 113 of 119 ASJ04/KKD/Delhi provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception
4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.
9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...."
165. Now, the facts of this case have to be considered to examine whether the present case falls under section 302 IPC or under Exception 4 to section 300 IPC. In the present case, as discussed hereinabove, injuries were caused to deceased Yogesh SC No. 1052/2016 Page 114 of 119 ASJ04/KKD/Delhi by the accused persons by giving beatings to him and also hitting him with wooden sticks and one of the assailants hit him with bricks. Brick/bricks were not seized from the spot. The broken pieces of wooden sticks are Ex. PW33/P-2 to P-4 and the photograph of broken pieces of wooden stick are Ex. PW12/P-9. PW33 deposed that it seemed that the aforesaid wooden sticks were used for beating and in that process, it might have been broken into pieces. The said broken pieces of wooden sticks indicate that the wooden stick got broken due to impact. The said pieces were found in the flat and were blood stained. As per the FSL result Ex. PW35/A, blood was detected on the three pieces of wooden stick. Blood group 'A' of the deceased was found on one of the wooden sticks. PW4 deposed that one of the four assailants were assaulting the deceased with bricks. Hence, though it is proved on record that the accused persons had given beating to the injured, however, the fact as to which of the accused persons had hit the deceased with bricks is not proved on record. As per the post-mortem report Ex. PW5/B, the cause of death was cerebral damage with shock consequent upon multiple injuries caused by blunt force impact by hard object/weapon. Injury No. 1 to 18 were sufficient to cause death in ordinary course of nature. 18 external injuries and internal head injuries were found on the body of deceased Yogesh.
166. The internal injury on the head as mentioned in the postmortem report Ex. PW5/A is a diffuse subscalpal haematoma all over. Skull was intact. SDH right side 14x9 cms with diffuse SC No. 1052/2016 Page 115 of 119 ASJ04/KKD/Delhi SAH all over. There were other eighteen external injuries found on the body as described in Ex. PW5/A (as mentioned herein- above), which included deep bruises spread on all parts of body over large areas and found on face, upper arm, forearm, neck, chest, knees, legs, back and shoulder.
167. It is deposed by PW5 Dr. Vinay Kumar Singh, who conducted the postmortem that as per the postmortem report there was no visible external head injury, however, internal examination revealed the above said injury on the head. There was no sharp weapon injury on the body of the deceased. However, the deceased had 18 injuries which were found on his external examination and which were spread over his entire body. The injuries were not small injuries and were big in size and spread over large areas. Though, it is deposed by PW5 that there was no fracture on the body of the deceased, however, as per Ex. PW5/A injury no. (viii) indicates the following :
"viii) Bruise, 45x2 cms over posterior aspect at left forearm with fracture at both radius and ulna with haemorrhage in surrounding tissue. Lower end."
168. Hence, there was also a fracture in both the bones of left forearm of the deceased. The cause of death was cerebral damage with shock consequent upon multiple injuries caused by blunt force impact by hard object/weapon. Injury No. 1 to 18 SC No. 1052/2016 Page 116 of 119 ASJ04/KKD/Delhi were sufficient to cause death in ordinary course of nature. The cumulative impact of the injuries caused to deceased Yogesh by the accused persons resulted in his death and the death was not attributed to any particular injury.
169. It is not the case of accused persons that they were also injured in the incident. PW4 deposed that he had seen the assailants including the accused persons beating deceased Yogesh and one of them had used bricks. He also deposed that the ac- cused persons dragged Yogesh to near his flat and started assault- ing him again. Blood was also found lying at the spot, on the stairs to the third floor and in the flat. As per postmortem report Ex. PW5/A grave injuries were found on the body of deceased Yogesh. It is thus manifest that the assailants, who were four in number, had given beatings to deceased Yogesh in a very cruel manner.
170. These facts show that the assailants including the ac- cused persons had brutally beaten deceased Yogesh. At that time Yogesh was alone and there were four assailants including the ac- cused persons. They were beating him and also gave him blows with sticks and one of them hit him with brick. Though it is not ascertained as to which of the accused caused injury with bricks, however, the death of deceased Yogesh was caused due to cumu- lative impact of all the injuries found on his body due to blunt force impact and not solely due to injury with brick or solely due to head injury. Hence, the contention of the accused persons that SC No. 1052/2016 Page 117 of 119 ASJ04/KKD/Delhi in absence of evidence regarding which accused had caused which injury, all the accused persons cannot be convicted under section 302 read with Section 34 IPC, is untenable.
171. Though it has been argued that it was a sudden quar- rel between deceased Yogesh and the accused persons on a spur of moment, however, the reason for the quarrel has not been brought on record. No cross-examination of any of the witnesses has been conducted to show that there was some reason owing to which a quarrel had occurred on the spur of moment. On the other hand, the accused persons have miserably failed to show that they had not taken undue advantage of deceased Yogesh. Considering, that there were four assailants including the accused persons on one side, who were together beating Yogesh merci- lessly, who was alone and dragging him while beating thereby in- dicating that he was in a helpless situation. Therefore, in facts of the present case, it is proved on record that the accused persons took undue advantage of the position of deceased Yogesh and acted in a cruel and unusual manner and thereby taking the present case out of the ambit of Exception 4 to section 300 IPC.
172. In these circumstance, it is proved on record that the assailants including the accused persons namely Karan Verma, Kamal Kumar and Parvinder Singh Yadav in furtherance of their common intention caused bodily injuries to deceased Yogesh and the bodily injuries inflicted upon him by them were sufficient in SC No. 1052/2016 Page 118 of 119 ASJ04/KKD/Delhi the ordinary course of nature to cause death and thereby committed an offence under Clause thirdly of section 300 IPC.
173. Accordingly, accused persons namely Karan Verma, Kamal Kumar and Parvinder Singh Yadav are held guilty and convicted for the offence under section 302/34 IPC.
order
Digitally signed by
DEEPALI DEEPALI
Announced in the open Court SHARMA SHARMA
Date: 2023.02.15
th
on this 15 day of February, 2023 17:01:52 +0530
(Deepali Sharma)
Additional Sessions Judge-04
East District/KKD Courts/Delhi.
SC No. 1052/2016 Page 119 of 119 ASJ04/KKD/Delhi