State vs . (1) Sunder Paswan on 16 April, 2013

[Cites 43, Cited by 0]

Delhi District Court

State vs . (1) Sunder Paswan on 16 April, 2013

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII 
            (NORTHWEST): ROHINI COURTS: DELHI
Session case No. 38/2011
Unique Case ID No.: 02404R0173592011
State                   Vs.     (1) Sunder Paswan
                                     S/o Upender Paswan
                                     R/o Jhuggi No. 107, 
                                     Mazdoor Nirman Camp,
                                     Haiderpur, Delhi
                                     (Convicted)

                                                                 (2)   Lal Babu @ Sanjay
                                                                       S/o Dhanu Paswan
                                                                       R/o Jhuggi No. 226, 
                                                                       Sanjay Camp Haiderpur,
                                                                       Delhi
                                                                       (Convicted)

                                                                 (3)   Devender @ Bedu
                                                                       S/o Raj Pal
                                                                       R/o Jhuggi No. 100,
                                                                       Sanjay Camp Haiderpur,
                                                                       Delhi 
                                                                       (Convicted)
FIR No.:                                 115/2011
Police Station:                          Shalimar Bagh
Under Sections:                          394/397/302/411/34 IPC &
                                         25/54/59 of Arms Act 

Date of committal to session court:                                    8.8.2011

Date on which orders were reserved:                                    16.3.2013

Date on which judgment announced:                                      3.4.2013


St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh                                  Page No. 1
 JUDGMENT:

(1) As per allegations, on 30.3.2011 at about 10 PM at C&D Block, Outer Gate near Badli Mor, Shalimar Bagh all the three accused namely Sunder Paswan, Sanjay @ Lal Babu and Devender @ Bedu in furtherance of their common intention committed robbery of mobile phone make Spice S525 and voluntarily caused hurt to Buddhi Lal. It has also been alleged that all the accused i.e. Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu while committing robbery inflicted three knife blows on the person of Buddhi Lal including two on his chest and caused his death which knife was recovered from the possession of accused Sunder Paswan at the time of his arrest.

CASE OF THE PROSECUTION/ BRIEF FACTS:

(2) The case of the prosecution is that on 30.3.2011 at 10:35 PM DD No. 32A was received at Police Station Shalimar Bagh regarding murder at C&D Block, Shalimar Bagh near Badli Mor. On receipt of this information SI Praveen Kumar along with Ct. Pawan reached the spot i.e. C&D Block, Outer Gate near Badli Mor and in the meanwhile SHO and Inspector Investigations also reached the spot where they came to know that the injured had been taken to BJRM Hospital by Beat Ct. Ramphal. SI Praveen Kumar reached BJRM Hospital where he collected the MLC of injured who was having stab injuries and was declared unfit for statement. The injured was thereafter transferred to Trauma Center. Initially a case under Section St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 2 307 Indian Penal Code was got registered. On 31.3.2011 police recorded the statements of the security guards of C&D Block namely Farakat Ali and Amit Giri under Section 161 Cr.P.C. wherein they informed that on the intervening night of 3031.3.2011 they both had seen three boys beating a person and when they (guards) tried to intervene, the assailants also showed knives to them. They also provided the descriptions of the assailants to the police. On 2.4.2011 the injured was declared dead in Trauma Center and the dead body was got preserved in the mortuary. During investigations efforts were made to establish the identity of the deceased and the provisions of Section 302 Indian Penal Code were added in the charge sheet.

(3) On 5.4.2011 the relatives of the deceased namely Hanuman, Kanhayya Lal and Babloo came to the Police Station Shalimar Bagh and identified the photograph of the deceased in the poster as of Buddhi Lal who was working in a factory at Haiderpur and was missing since 30.3.2011. They also informed the Investigation Officer that Buddhi Lal was having a mobile phone bearing no. 9015968416 and was having a tiffin bag with him when he left for his work on 30.03.2011. The Call Detail Records of the above said mobile phone was obtained. The owner of the factory where Buddhi Lal was working namely Madan Lal also met the Investigating Officer and informed him that he had given a mobile set of Spice to the deceased for use. This mobile phone was thereafter put on surveillance and the Investigating Officer came to know that the mobile St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 3 instrument was active and was being used by Hemlata Tiwari W/o Anant Kumar Tiwari who informed the police that she had used the mobile instrument but the same was taken away by accused Lal Babu @ Sanjay. Efforts were made to track down Lal Babu @ Sanjay and it was revealed that he was found roaming with Devender @ Bedu and Sunder Paswan who are listed criminals of Police Station Shalimar Bagh. Thereafter on 7.4.2011 on the basis of a secret information the accused Sunder Paswan and Lal Babu were apprehended by the police and were also identified by the security guards Amit Giri and Farakat Ali as the assailants who gave knife blows on a person in front of the outer gate of C & D Block gate on 30.03.2011 at about 10.00PM alongwith their third assailants. From the personal search of accused Sunder Paswan one buttondar knife was recovered from his right pocket of his pant. The accused Sunder Paswan and Lal Babu @ Sanjay were thereafter arrested and their disclosure statement were recorded wherein they have disclosed their involvement in the present case. Pursuant to his disclosure statement the accused Lal Babu @ Sanjay got recovered the three pieces of mobile phone of Spice from a Nali/ditch which proceeding were also videographed. The accused Lal Babu @ Sanjay also got recovered one mobile phone of make NOKIA 1616 with SIM of Airtel from the "Taand" of the jhuggi at the first floor which he disclosed belong to another victim whom they had robbed on the point of knife on 30.3.2011.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 4 (4) On 25.06.2011 on the basis of a secret information the accused Devender @ Bedu was apprehended from the Outer Ring Road area after which he was arrested and his disclosure statement was recorded wherein he admitted his involvement in the present case. Pursuant to his disclosure statement the accused Devender got recovered one tiffin bag containing tiffin box of the deceased near the stone under the flyover and some blood stains were found on the tiffin bag belonging to the deceased. After completion of investigations charge sheet was filed against all the accused persons.

EVIDENCE:

(5) In order to prove its case the prosecution has examined as many as Forty Two witnesses as under:

Public witnesses:

(6) PW21 Narender Kumar has deposed that he was residing at House No. B1, Main Road Shalimar Bagh for the last 2526 years where he is running a photo studio under the name and style of Ritu Digital Studios.

He has further deposed that on 08.04.2011 at about 5:00 PM, he received an information from police station Shalimar Bagh to reach at Nehru Camp Jhuggi Cluster, Haiderpur where he was asked to videograph the proceedings. The witness has deposed that the accused who was in police custody led the police party to a Nala/ ditch from where he got recovered a St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 5 mobile in a broken condition and he videographed the entire proceedings CD of which is Ex.PW21/A. According to him, on the same day he handed over the said CD to the Investigating Officer.

(7) Leading questions were put to the witness by Ld. Addl. PP since the witness was not giving the complete details, wherein the witness deposed that he is not sure if the jhuggi cluster where they were taken is Sanjay camp Jhuggi cluster and has voluntarily added that he is not sure if it is Sanjay camp or Nehru camp, he just knows that it was in Haiderpur. The witness correctly identified the accused Lal Babu by pointing out towards him as the person who had got recovered the mobile phone from the Nala.

(8) In his crossexamination by Ld. Defence Counsel, the witness has deposed that when he reached the spot i.e. Sanjay Jhuggi camp there were fourfive police officials, accused and large number of public persons. According to him, the mobile was recovered by the accused in his presence and was not in the hands of the police officials previously and has voluntarily added that he recorded the proceedings. The witness has denied the suggestion that some public persons had got the mobile recovered and has voluntarily added that when the police officials asked the accused in his presence where he had thrown the mobile, it was the accused who had got the same recovered himself. According to him, the whole proceedings took about ten minutes from the place from where they started St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 6 to the Nala where the CD had recovered. The witness has deposed that his charges were paid by the police officials in cash i.e. Rs.300/ per CD at the spot itself but his statement was not recorded by the police. He has also deposed that police did not record the statement of any public person in his presence. Witness has denied the suggestion that the police had planted the mobile at the spot and later on stage managed the recovery of the same which he was asked to record.

(9) PW22 Hemlata Tiwari has deposed that in the year 2011 her husband Anant Tiwari was working in Idea while she was working in the SDS Company in Haiderpur as a packer since 02.02.2011. According to the witness, she was having a mobile phone bearing no. 9990607478 which was registered in the name of her husband and in the month of March 2011, her mobile phone was broken down. She has deposed that the accused Sanjay whom the witness has correctly identified in the Court was working in the same company had met her. The witness has testified that Sanjay @ Lal Babu was having two phones at that time and she asked him for purchase of one mobile phone on which Sanjay gave one mobile phone to her for Rs. 300/ and she told him that she would pay Rs.300/ later on. The witness has further deposed that she inserted her SIM Card bearing no. 9990607478 in the said mobile phone and used the same for about two days but after two days accused Sanjay met her in the factory and demanded the mobile phone from her on which she returned the same after removing her SIM card from the said mobile phone and after one day, the accused Sanjay told her that the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 7 mobile phone had broken.

(10) In her crossexamination by Ld. Defence Counsel, the witness has deposed that after two three days of returning of the said mobile phone to accused Sanjay by her, police came to her. She has deposed that she told to the police that she removed her SIM from the mobile phone prior to returning the same to accused Sanjay. However, when confronted with her statement Ex.PW22/DA the said fact was not found so recorded. Witness has deposed that there was an attendance register in their factory for their attendance and there is no security guard on the gate of their factory and that no one check the persons who entered in the factory, on the gate. The witness has deposed that there are documents of about their employment in the factory. According to her, all the labour / employees were present when she purchased the above said mobile phone from Sanjay. The witness has denied that accused Sanjay @ Lal Babu had not given any mobile phone to her or that the said mobile phone taken by the accused Sanjay later on from her.

(11) PW23 Gautam has deposed that he was residing at Jhuggi at Sanjay Camp, Shalimar Village, Haiderpur for the last fourfive years and is a baildar/ labour by profession. He has deposed that the jhuggi of Lal Babu is adjoining to his jhuggi and Lal Babu is known to him by his mama / maternal uncle Shambhu for about two months prior to the incident. The witness has deposed that on 08.04.2011 the police came to him and make inquiries on which he told them that about four days ago Lal Babu had St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 8 come to his jhuggi and gave him a black colored mobile which Lal Babu broke into three pieces and asked him to throw in the Nala adjoining the room where they were staying. He has testified that on 08.04.2011 the police had come to his jhuggi along with Lal Babu and the photographer on which he had shown them the place / Nala where he had thrown the mobile which was given to him by Lal Babu. According to the witness, he got the mobile recovered after which he was interrogated by the police and he told them that he had committed a mistake by throwing the mobile in the Nala and by not asking the Lal Babu why he had broken the same. He has proved that the police prepared a document at the time of the recovery of the mobile phone. The witness identified the the pointing out and recovery memo of the broken mobile phone which is Ex.PW23/A bearing his thumb impressions at point A. He has correctly identified the accused Lal Babu in the Court and also identified the case property i.e. black color mobile phone in two pieces (S525) and the third piece is a battery of SPICE type SIB04, Capacity DC3.7B 700mAh written on the same as the same as thrown by him in the Nala, all the pieces of the mobile phone are Ex.P1 (collectively). It has been observed by this Court that two pieces of the mobile phone and the battery fit together but the back side cover of the mobile was missing.

(12) In his crossexamination by Ld. Defence counsels, the witness has deposed that the Nala where he had thrown was an open drain, around half feet wide and about one feet in depth. He has deposed that the Nala St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 9 was having very little water when he threw the mobile in the same and there was not as much water which could have taken the mobile with it in the flow. According to the witness, they had not found the mobile at the same place, where he had thrown and has voluntarily added that it was recovered slightly ahead. Witness has denied that the phone pieces recovered could have been of a different mobile phone and has voluntarily added that it was the same mobile phone which was given by Lal Babu and he had thrown the same in the Nala. The witness has denied that Lal Babu had not come to his jhuggi or that Lal Babu had not handed over the mobile to him or that he was himself using the mobile set which he broke and threw in the Nali to destroy the evidence.

(13) PW24 Madan Pal has deposed that he is residing at Jahangirpuri from the very beginning and is running a brush factory at Bhalswa Dairy for the last seveneight years. According to the witness Buddhi Lal was employed in his brush factory at Bhalswa Dairy for the last fourfive years and his duty time was 9AM to 9:30 PM. The witness has deposed that on 30.03.2011 Buddhi Lal left his factory at about 8:00 PM after completing his work but did not come for work for the next two days on which he sent his worker Jamuna Parshad to the jhuggi cluster at Shalimar Bagh and on his return Jamuna Parshad informed him that when he went to the jhuggi of Buddhi Lal, he met his relative by the name of Hanuman who informed him that Buddhi Lal had not returned from his work from 30.03.2011 onwards nor he had any information regarding him. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 10 The witness has testified that he told Jamuna Parshad to inform Hanuman that Buddhi Lal had left the factory as usual and was not reporting and therefore he should make inquiries to ascertain his whereabouts and also find out if he might have gone to his village. According to the witness, on 05.04.2011 he received a call from SHO Police Station Shalimar Bagh who was making inquiries regarding Buddhi Lal on which he informed the SHO that he used to pay Rs.4,500/ to Buddhi Lal who had not reported for duties from 30.03.2011 onwards. The witness has further deposed that on this he was further informed by the SHO that Buddhi Lal had been murdered some where in Shalimar Bagh. According to him, he told the SHO that Buddhi Lal was using a mobile phone, make SPICE model No. S525 without camera of black color which he (witness) was previously using and later Buddhi Lal purchased the same from him for Rs.700/ and he had given the box of the mobile phone along with various accessories to Buddhi Lal at that time. He has identified the case property i.e. black color mobile phone in two pieces (S525) and the third piece is a battery of SPICE type SIB04, Capacity DC3.7B 700mAh written on the same which pieces of the mobile phone are Ex.P1 (collectively).

(14) In his crossexamination, the witness has deposed that he had purchased a mobile phone with the bill in his name but he is unable to produce the bill and has voluntarily added that he had handed over the bill to Buddhi Lal. He is also unable to tell the SIM number being used by Buddhi Lal. He has denied the suggestion that no mobile phone had been St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 11 given by him to Buddhi Lal. He is unable to produce any employment record of Bhuddhi Lal and has voluntarily stated that it is a small factory and he is not maintaining any record. The witness has denied the suggestion that Bhuddhi Lal was not his employee and that is why he is unable to produce any employment details or that he is a planted witness by the Investigating Officer only to connect the accused with the alleged offence.

(15) PW25 Rajiv Kumar is an eye witness to the incident who has deposed that he is doing the property dealing in the area of Rohini and has an office at Flat no. 100, Pkt.13, Sector 24, Rohini, Delhi. According to the witness on 30.03.2011 at about 10.00PM he alighted from the bus at bus stand of Badli as he was coming from his office after which he was going to his house on foot. The witness has testified that when he reached on service lane near C&D Block, Shalimar Bagh, Delhi and reached near the gate of their residential society on Outer Ring Road, he saw three persons having caught hold of one person. He has also deposed that firstly he was under the impression that perhaps they were friends but when he came to more near to them he saw that the above said three persons had forced that person to lie on the ground (neechey gira diya tha) and one persons was holding a knife in his hand and another person was holding a long knife like a Kirpan and they had caught hold that person who was lying on the ground. According to the witness, he shouted and raised an alarm on which two guards of their society who were having dandas reached there after St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 12 hearing the noise and he told them to save the victim. The witness has further deposed that when both the guards reached near the assailants, they challenged the guards with their knives on which both the guards ran away from there. According to the witness, he did not try to save the victim as he was ill due to Psoriasis (skin disease). He has also deposed that he immediately called the President of Society namely Satish Singhal who reached there and they both reached the gate of their society and saw that victim was lying at the distance of 3040 feet in an injured condition. The witness has testified that meanwhile PCR police and Beat Constable reached there and took away the injured from there. (16) The witness has correctly identified accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu as the assailants who caused the aforesaid incident. He has identified accused Sunder Paswan who was holding a knife in his hand at the time of incident; accused Devender @ Bedu who was holding a long knife look like Kirpan at the time of incident. He does not remember the names of guards who were called by him at the time of incident. In reply to the question asked by Ld. APP the witness has admitted that the names of the security guards were Amit Giri and Farakat Ali and he had seen them outside the court.

(17) In his cross examination by the Ld. Defence Counsels the witness has admitted that he had stated in his statement recorded under Section 161 Cr.P.C. that three persons had forced that person to lie on the ground. However, when confronted with his statement Ex.PW25/DA St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 13 where this fact was not found so recorded. He has denied the suggestion that the place of incident is an isolated place or that there was a darkness in the night time. He has explained that there were electricity poles on the main road, service lane and at the gate of their society and electricity pole was at a distance of about 10 feet from the place of incident. He has denied the suggestion that there are Eucalyptus trees in between the place of incident and the electricity pole. According to him, no other persons came at the spot except that there were two guards after hearing his shouting. He has also explained that he saw the incident from a distance of about 2530 feet and the accused persons had seen him when he raised alarm. The witness has also deposed that accused persons had shown their weapons to him and the security guards. He has further deposed that he had stated in his statement to police that accused persons had shown their weapons to him. He has admitted that he had not given the name of beat constable to the police, who came at the spot. However, when confronted with his statement Ex.PW25/DA the the name of Ct. Ramphal was found written. The witness has testified that Beat Constable came at the spot on a motorcycle however he is unable to tell whether it was a private or official vehicle. He has also deposed that Beat Constable came to the spot through Gate No.1 of their residential society. According to him, the PCR came to the spot in his presence and thereafter he went away from there. The witness has also deposed that he had not stated to the police in his statement that PCR came at the spot. He is unable to tell whether injured / St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 14 victim was in his senses or not when the beat constable reached at the spot. The witness has further testified that the injured was not shifted in the vehicle in his presence while removing him from the spot to the hospital. He is not aware whether the injured was shifted to the hospital or not. According to him, he had not stated to the police that the injured was shifted in a TSR However, when confronted with his statement Ex.PW25DA the said found was found so recorded. He has also deposed that Satish Singhal reached the spot within fourfive minutes of his call. According to the witness, he did not make a call to the police at 100 number and has voluntarily explained that it was Satish Singhal who made call at 100 number. The witness has also deposed that police recorded his statement on 10.04.2011 at his house. He has explained that police made a call to him on one or two days prior to 10.04.2011 and called him at police station for recording his statement but he was ill and was not in a position to go therefore on his request the police came to his house for recording his statement. He has denied the suggestion that he had identified accused persons at the instance of the Investigating Officer who had shown the accused persons to him. The witness has also denied the suggestion that he was not present at the time of incident at the place of incident or that he has deposed falsely at the instance of Sh. Satish Singhal. (18) PW26 Sh. Hanuman has deposed that he is residing at a House No.10 in front of Hanuman Mandir Wali Gali, village Haiderpur since the year 1983 and at the time of the incident i.e. on 30.03.2011 he was working St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 15 in a factory at Transformer Wali Gali, Haiderpur in the rubber factory of Harpal where the rubber of pressure cooker was being manufactured. According to the witness, he was residing in the jhuggi of his brother Buddhi Lal who was the son of his mama at jhuggi No.388, Sanjay Camp, Haiderpur. The witness has testified that he is residing with his maternal family and therefore he and Buddhi Lal belonged to the same village. According to him on 30.03.2011 he had left duty at 8AM and Buddhi Lal normally went for duty after he left. He has also deposed that he returned home at about 10:00 PM but Buddhi Lal had not returned after which he waited for him (Buddhi Lal) for sometime and thereafter had his dinner and went for sleep. He has also deposed that on the next day he also waited for Buddhi Lal but he did not return and he thought that Buddhi Lal must have gone to the house of his sala / brother in law at Alipur and therefore he did not find anything unusual when Buddhi Lal did not return. The witness has further testified that on n 01.04.2011 one person came from the factory of Buddhi Lal who was making inquiries about Buddhi Lal stating that he had been sent by the owner that Buddhi Lal was not coming to the factory and to find out where he was, on which he informed him that Buddhi Lal had not come back from the factory since 30.03.2011. According to the witness, he waited for Buddhi Lal for another couple of days and in the meanwhile he made inquiries from other relatives including Babloo who is their first cousin and also called up the village and spoke to the children of Buddhi Lal if he had come there but he was told by the daughter of Buddhi Lal that St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 16 he had not come to the village. He has testified that when he came to know of the above, he called the sala / brother in law of Buddhi Lal and Babloo and informed them that Buddhi Lal was not traceable and after due consultation with them, they decided that they would lodge a complaint to the police. According to Hanuman (PW26), while he was going to the police station and came out of the jhuggi cluster, he met one lady who told him that the police were roaming in the area with a poster of a dead body which they were pasting in the area for ascertaining his identity. He has further deposed that the said lady also told him that the poster had been pasted on the wall of the jhuggi of Bindia on which they went towards that side and found there were no such poster since somebody had torn of the same. The witness has also deposed that on this he asked Bindia where was the poster who told him that somebody had torn the poster but she could identify the dead body shown in the poster which had been pasted on the wall of her jhuggi on which he (Hanuman) went back to his jhuggi and brought back with the photograph of Buddhi Lal which he showed to Bindia who identified the photograph of Buddhi Lal as the same person whose dead body photograph was pointed on the poster. According to him, thereafter they went to the police station Shalimar Bagh where on the main gate of the Police Station he saw the poster showing the body of his brother and he identified him to be Buddhi Lal. The witness has testified that he went inside the police station and told the officers present there that the poster belonged to his first cousin Buddhi Lal on which he was produced St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 17 before the SHO who thereafter interrogated him. He has also further deposed that he informed the SHO that Buddhi Lal had a black colored mobile phone which he had purchased from his owner / malik of the factory and also used to carry a tiffin bag which he could identify. The witness has also deposed that his statement was recorded by the SHO and on the next day he was called to BJRM hospital where he identified the dead body of his brother vide memo Ex.PW26/A. The said witness has correctly identified one black colored mobile phone in two pieces (S525) and the third piece was a battery of SPICE type SIB04, Capacity DC3.7B 700mAh written on the same as belonging to his brother Buddhi Lal, which pieces of the mobile phone are Ex.P1 (collectively); one cloth thaila bearing the words PREIMER SEEDS the No.1 multicut bajra mentioned on the same with a steel tiffin box (of two boxes) as the one which his brother Buddhi Lal used to take to the factory, which thaila is Ex.P2 and the tiffin box is Ex.P3.

(19) In his cross examination the witness is unable to tell the duty hours of Buddhi Lal since he used to leave for his duty at 8AM and Buddhi Lal still remained at home and used to return by 1010:30 PM and by that time Buddhi Lal used to be at home and has voluntarily explained that Buddhi Lal returned maximum by 10:30 PM. He has denied the suggestion that since he used to leave early therefore he is unable to tell what Buddhi Lal used to carry with him and has voluntarily explained that they used to cook food commonly and therefore he knew what tiffin was packed daily St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 18 for Buddhi Lal. According to him, on 30.03.2011 when Buddhi Lal did not return home, he did not call Buddhi Lal on telephone and has voluntarily explained that he did not have his telephone number. He has admitted that he had a mobile phone with the number 8447696182 but has denied that he had the mobile phone number of Buddhi Lal stored in his mobile and has voluntarily explained that he is not very friendly with mobile phones and cannot operate the same of his own. The witness has testified that he had not made any inquiries from the factory from where he was working nor any inquiries from the relatives and has voluntarily added that he had not made any inquiries because Buddhi Lal often went to the house of his brother in law at Alipur which was very normal. According to the witness, before 05.04.2011 he made inquiries from their neighbour Raj Kumar with whom Buddhi Lal was very friendly and had also called up Babloo and the brother in law of Buddhi Lal namely Kanhiya and has voluntarily explained that he had told Raj Kumar to call Kanhiya as Raj Kumar had the number of Kanhiya to find out whether Buddhi Lal was with him or not. According to the witness, he had given the name of Bindia to the SHO in his statement. However, when confronted with his statement Ex.PW26/DX1 the name of Bindia was not found specifically mentioned. The witness has testified that he had not told the detail description of either of tiffin box or the mobile phone of the deceased to the SHO in his statement. He has denied the suggestion that his brother Buddhi Lal did not possess any mobile phone of black color nor the tiffin belong to him or that the above articles have been St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 19 planted in order to connect the accused with them. He has admitted that the tiffin of the similar type is easily available in the market. The witness has denied the suggestion that he had identified the said tiffin and the mobile phone as it was shown to him by the Investigating Officer. (20) PW27 Babloo has deposed that he is doing the labour work in a printing press and deceased Buddhi Lal was son of his Aunt (Mausi) who was working in the factory owned by one Madan Lal and was was residing with Hanuman. According to the witness, on 05.04.2011 he received a telephone call from Hanuman at about 11.00AM who enquired about Buddhi as he was not coming at his residence. The witness has further deposed that he immediately called Kanhayya Lal, brother in law (Saala) of Buddhi Lal and inquired about Buddhi Lal. He has also deposed that in evening time he alognwith Kanhayya Lal reached at the jhuggi No.388, Sanjay Camp Haiderpur where Buddhi Lal was residing and met Hanuman there but Buddhi Lal was not found by them there. According to him, females of the area informed them that some police officials were pasting the posters of a person in the area on which he along with Kanhayya Lal and Hanuman went to Police Station Salimar Bagh and saw the poster of Buddhi Lal outside the police station and met police officials there. He has also testified that on the next day they went to BJRM Hospital where they identified the dead body of Buddhi Lal. According to him, they used to contact Buddhi Lal on mobile phone number 9015968416 which was provided by him (Babloo) to Buddhi Lal as his SIM was defective. He has St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 20 further deposed that this mobile number was in his (witness's) name and he tried to contact on this mobile phone but the same was found as "switch off". He has also deposed that deceased Buddhi Lal was using this mobile SIM Card on the mobile phone provided by his owner namely Madan Pal. (21) In his cross examination by the Ld. Defence Counsels the witness has deposed that he did not tell the police that he received telephone call from Hanuman on 05.04.2011 at about 11.00AM. He has denied the suggestion that he has deposed falsely at the instance of the Investigating officer. According to the witness, he kept the above said SIM with him as his mobile phone was defective and he did not purchase another mobile phone.

(22) PW28 Kanhayya Lal has deposed that earlier he was residing in the house of Ved Singh in the same area and in the year 2011 he was working as labour in a cable factory. According to him, deceased Buddhi Lal was his brother in law (Jija) who was residing in Delhi in Jhuggi no. 388, Sanjay Camp Haiderpur with Hanuman. He has testified that on 05.04.2011 Babloo informed him on mobile phone that Buddhi Lal was not traceable as he had not returned to his residence after which they made a phone call to Madan Lal who informed them that Buddhi Lal came to his factory on 30.03.2011 and went away from there in the evening time after completing his work and thereafter he had not come to the factory for work. The witness has further deposed that on 05.04.2011 in the evening time he along with Babloo reached at Sanjay Camp where Hanuman was present St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 21 and the females of the area told them that police persons were pasting the photographs of a deceased person on which they went to Police Station Shalimar Bagh and saw the poster outside the police station Shalimar Bagh containing the photograph of the deceased Buddhi Lal. According to him, on the next day he identified the dead body Buddhi Lal at BJRM Hospital Mortuary, Delhi and his statement was recorded by the police in this respect which is Ex.PW28/A. This witness was not cross examined by Ld. Defence Counsels despite opportunity and hence his testimony has gone uncontroverted.

(23) PW29 Farakat Ali is stated to be an eye witness who has deposed that on 30.03.2011 he was posted as a guard at gate No.4, CD Block, Shalimar Bagh and on the intervening night of 30/31.03.2011 he was on duty from 8PM to 8AM at the out gate. According to the witness he was sitting on the gate and the other chowkidar/guard Amit Giri was on round duty. He has deposed that at about 10:00 PM Amit Giri was coming towards the out gate from gate No.3 in the meanwhile they heard a lot of "shor sharaba"/loud voices coming from outside and they also saw some persons coming from the Rohini side which included one Rajeev resident of C&D Block. The witness has testified that they called them and told that some boys were doing marpitai on the road and that they should stop them. He has also deposed that he was present with Rajeev and he saw that these boys came running to their side and passed them when one boy was carrying a knife with which he had inflicted injuries to the person which St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 22 while running away he brandished the same towards him ("mujhe chako dikhaya tha"). According to him, in the meantime Amit Giri had also reached the spot on which they called 100 number after which the police shifted the injured to the hospital by a TSR.

(24) In reply to the court question the witness has stated that he did not do anything on seeing the injured lying at the spot nor did he go near the body but he came to know later on that the injured was alive. According to him, he did not make any attempt to shift the deceased to the hospital nor he gave any other kind of assistance to the injured. He has deposed that police came after 1015 minutes and till that time the injured was struggling for life but he was told later on by the public that he had expired.

(25) The witness has further deposed that the boy who was carrying a knife in his hand was not very tall and was slightly taller than him. This Court has observed that the witness is around 5 feet 4 inches to 5 feet 5 inches and states that the said accused was about 24 inches taller to him. He has also deposed that he had seen two persons and only one of them were having the knife.

(26) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that his statement was recorded by the police and has voluntarily added that it was recorded in the police station. The statement Ex.PW29/PX1 was read over to the witness wherein he has admitted to having made so before the police except from St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 23 portion A to A1. He had admitted that he had informed the police that at 10PM when he and Amit Giri were on duty and Amit Giri was walking towards him, they heard loud voices on which both of them took their lathies and went outside where they found that on the right side on the gate near the stack of sand three boys were beating a person and while they were still watching they stabbed him. According to the witness, he also told the police that when he and Amit Giri exhorted the said boys, all three of them out of whom two were carrying knives ran towards him. He has admitted that he had told the police that on seeing this both he and Amit Giri got extremely scared and ran back to their guard booth. He has further admitted that they further told the police that beat constable Ram Phal came to the spot where the injured was lying on the patri around 3040 feet away from the place of the stabbing and shifted the injured to the hospital in a three wheeler scooter. The witness has also admitted that he told the police that out of the three boys, one boy who was carrying a knife had tied his handkerchief like a patka on his head and was around 5 feet and 5 inches in height; that the second boy was having a knife in his hand was short stature but he has denied having told the police that he was of brown color (bhura rang). The witness has also admitted that he had told the police that the third accused was of dusky complexion (sanwla rang) and was around 5 feet 5 inches in height and all the three accused were of average built; that on his pointing out the site plan was prepared showing the point where the incident took place near the stack of sand and also the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 24 footpath where the victim was lying.

(27) The witness was declared hostile by Ld.Addl. PP. for the State on the aspect of identity of the accused persons and was crossexamined by the ld. Addl. PP for the State. All the three accused persons one by one were specifically put to the witness but the witness has not been able to tell if the accused Devender @ Bedu and the accused Sunder Pawan are the persons who were carrying knives in their hands with which they had inflicted injuries upon the deceased. He is also unable to tell whether Lal Babu @ Sanjay was the person who was not carrying any knife. The witness has voluntarily added that it was very dark and he could not see the faces properly. He has denied the suggestion that on 31.03.2011 he had stated to the police that he can identify the accused. The witness has however admitted that on 07.04.2011 he and Amit had joined the investigations at 12:30 AM (midnight). He has denied the suggestion that on that day the accused Sunder Paswan and accused Lal Babu were apprehended on their pointing out. He had admitted that the arrest memo of Sunder Paswan Ex.PW29/PX2 and his personal search Ex.PW29/PX3 bear his signatures at point A. The witness has denied that these documents were prepared at the spot where the accused Sunder Paswan was arrested on their pointing out and has voluntarily stated that he had signed these documents in the police station. He is unable to tell if a knife was also recovered from the possession of Sunder Paswan when he was arrested on his pointing out. He has also admitted his signatures on the arrest memo of St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 25 Lal Babu @ Sanjay which is Ex.PW29/PX4 and on his his personal search memo which is Ex.PW29/PX5 bears his signatures at point A. He has denied that these documents were prepared at the spot where the accused Lal Babu @ Sanjay was arrested on their pointing out and has voluntarily stated that he had signed those documents in the police station. He has stated that he had not made any statement to the Investigating Officer on 07.04.2011 which is Ex.PW29/PX6 or that being won over by the accused he is not admitting the same. The witness is also unable to tell if both the accused Sunder Paswan and Lal Babu are residents of the same area where he is residing. He has denied that he had come to the Rohini court on 23.07.2011 where he had identified the accused Devender @ Bedu as the same person who was carrying a knife in his hand with which he had inflicted blows on the deceased or that on the same day his statement was also recorded by the police which statement is Ex.PW29/PX7. He has admitted that the family members of the all these three accused had come to his residence but has denied that they had threatened him not to identify the accused and has voluntarily added that they had only told him to tell the correct facts("mujhse kaha tha ke sahi baath bata dena"). He has denied the suggestion that he had been won over by the families of the accused persons who are residents of the same area who had paid him for not identifying the accused.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 26 (28) In his cross examination by the Ld. Defence counsels the witness has deposed that he had told to the police in his statement that Rajeev resident of area and some other residents of the area were coming from the Rohini side who informed them of the incident. The witness was confronted with his statement Ex.PW29/PX1 where this fact was not so mentioned. However, it has been observed by this court that the said fact was mentioned in the statement Ex.PW29/DX1 dated 22.06.2011. According to the witness, their attendance is taken on gate No.1 daily when they come on duty. He has admitted that the spot of the incident was completely dark.

(29) On a specific Court question the witness has deposed that there was sufficient street light in the area which street light was working on that day. He has admitted that there is a street light pole near the sand stack but he did not notice whether it was working on the day of the incident or not. The witness has also deposed that he had not mentioned to the police regarding the presence of Rajeev on 22.06.2011 and has voluntarily added that he had told them this fact on the date of the incident itself.

(30) PW30 Sh. Amit Giri is also an eye witness who has deposed that on 30.03.2011 he was on duty as a Security Guard at C & D Block, Shalimar Bagh at Gate No.3. According to the witness, Farakat Ali was also on duty with him at gate No.4 and at about 10:00 PM one person St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 27 resident of C & D Block society was coming towards the society area and Farakat Ali called him and thereafter he along with Farakat Ali reached at gate No. 4 with their dandas. He has deposed that they did not find any person there except the injured who had been stabbed. The witness has further deposed that on this he immediately dialed 100 number from his mobile No. 9910378590 which SIM was provided by his owner Ganesh Goswami. According to him, police came there and shifted the injured to the hospital in a white colored long vehicle. He has testified that he had not seen anybody stabbing the victim.

(31) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that his statement was recorded by the police and has voluntarily stated that it was recorded in the police station. The statement Ex.PW30/PX1 was read over and explained to the witness and he had denied the same. According to the witness, he had not stated to the police in his statement that at 10:00 PM when he and Farakat Ali were on duty and Farakat Ali called him, they heard loud voices on which both of them took their lathies and went outside where they found that on the right side on the gate near the stack of sand three boys were beating a person and while they were still seeing they stabbed him. He has denied having told the police that when he and Farakat Ali exhorted the said boys, all three of them out of whom two were carrying knives ran towards him; that on seeing this both he and Farakat Ali got extremely scared and ran back to their guard booth; that Beat Constable Ram Phal St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 28 came to the spot where the injured was lying on the patri around 3040 feet away from the place of the stabbing and shifted the injured to the hospital in a three wheeler scooter; that out of the three boys, one boy who was carrying a knife had tied his handkerchief like a patka on his head; that the second boy was having a knife in his hand was short stature having brown color (bhura rang); that the third accused was of dusky complexion (sanwla rang) and was around 5 feet 5 inches in height and that all the three accused were of average built. He has admitted that Rajeev Kumar, resident of C & D Block, Shalimar Bagh was coming at about 10PM and he shouted after seeing the incident of causing injuries. (32) This witness was declared hostile by Ld. Addl. PP for the State and was crossexamined by the Ld. Addl. PP for the State wherein all the three accused persons one by one were specifically put to the witness. However, the witness is unable to tell if the accused Devender @ Bedu and the accused Sunder Pawan were the persons who were carrying knives in their hands with which they had inflicted injuries upon the deceased. He is also unable to tell whether the accused Lal Babu @ Sanjay was the person who was not carrying any knife and has voluntarily stated that because he had not seen the incident as the incident had taken place before he had reached the spot. He has denied that on 31.03.2011 he had stated to the police that he can identify the accused; that on 07.04.2011 he and Farakat Ali had joined the investigations at 12:30 AM (midnight); that on that day the accused Sunder Paswan and accused Lal Babu were apprehended on St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 29 their pointing out. The witness has admitted his signatures on the arrest memo of Sunder Paswan which is Ex.PW29/PX2 and his personal search memo which is Ex.PW29/PX3. He has denied that these documents were prepared at the spot where the accused Sunder Paswan was arrested on their pointing out and has voluntarily stated that he had signed these documents in the police station. The witness is also unable to tell if a knife was also recovered from the possession of Sunder Paswan when he was arrested on his pointing out. He has admitted that the arrest memo of Lal Babu @ Sanjay Ex.PW29/PX4 and his personal search memo Ex.PW29/PX5 bear his signatures at point B. He has denied that these documents were prepared at the spot where the accused Lal Babu @ Sanjay was arrested on their pointing out and has voluntarily stated that he had signed these documents in the police station. According to the witness, he had not made any statement to the Investigating Officer on 07.04.2011 which is Ex.PW30/PX2. He has denied the suggestion that being won over by the accused he is not admitting the same. He is unable to tell if both the accused Sunder Paswan and Lal Babu are residents of the same area where he is residing. The witness has denied that the family members of the all these three accused had come to his residence or that they had threatened him not to identify the accused. This witness was not cross examined the Ld. Defence counsels despite opportunity given.

(33) PW31 Sh. Ganesh Goswami has deposed that he is residing in Mukundpur, PartI and running a security agency under the name and St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 30 style of Rock Security and used to provide security guards to residential colony, Industrial Areas etc. on contract basis. According to the witness, he had provided four guards at C&D Block Shalimar Bagh of whom Farakat Ali and Amit Giri were posted at Gate No.3 and were on round between gate no.3 and 4 on 30.03.2011. He has testified that a register is being maintained at Gate no.1 with regard to the attendance of the guards which register belong to their agency. He has also deposed that he had given his SIM whose number he does not recollect to Amit Giri for official use which SIM he had obtained from Zahid Telecome on his address and it was the same SIM by which the call was made at 100 by Amit Giri. He had brought the Duty register of his office with regard to the duties of Amit Giri and Farakat Ali on 30.03.2011 at night time at gate no.3, C&D Block, Shalimar Bagh, the relevant entry in register is Ex.PW31/A. In reply to a leading question asked by Ld. Addl. PP for the State the witness has admitted that the SIM which was given by him to Amit Giri was bearing no. 9910378590. This witness was not cross examined by Ld. Defence counsel despite opportunity given and hence his testimony has gone uncontroverted.

(34) PW32 Sh. Satish Singal a Chartered Accountant by profession doing his private practice has deposed that on 30.03.2011 he was working as the President of the RWA, C & D Block, Shalimar Bagh. According to him, on 30.3.2011 at about 10:15 PM he was present at his flat when he had received a call on his mobile phone from Sh. Rajeev Kumar, St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 31 who was also residing in their society in D Block to the effect that one person had been stabbed by three persons outside outer gate of C&D Block and he should reach there. He has deposed that on receipt of this phone call, he immediately reached the outer gate of C&D Block and came to know that the Beat Constable of the area namely Ct. Ram Phal had taken the injured to the hospital in a TSR. According to the witness, at that time Rajeev Kumar who had made a phone call to him and two security guards of their colony namely Amit Giri and Farakat Ali were also present there and Rajeev Kumar had told him that he was coming towards C&D Block on foot from Badli village bus stand through service lane and at about 10 PM when he reached near outer gate of C&D block, three persons were scuffling with a person who was crying. The witness has also deposed that Rajeev Kumar also told him that out of those three persons, one was armed with knife and one person who had tied his head with the help of handkerchief was also having a long size knife and on seeing the same, he called the security guards Amit Giri and Farakat Ali who were standing near the booth situated inside the outer gate on ring road and after some time both the guards who were armed with lathies had come there and on seeing those guards all those three boys ran towards the security guards who due to fear ran back. According to him, same facts were revealed to him by their security guards Amit Giri and Farakat Ali and Amit Giri had also told him that he had informed the police on 100 number and PCR van had come there. The witness has further deposed that after some time local St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 32 police officials of police station also reached there. According to him on 10.04.2011 Inspector Puran Singh made inquiries from him and also recorded his statement to whom he had stated the aforesaid facts. (35) In his cross examination the witness has admitted that the occurrence did not take place in his presence and that first Rajeev Kumar had told the occurrence and thereafter the guards had confirmed the same. According to the witness, at that time his statement was not recorded by the police and the same was recorded on 10.04.2011. He does not remember when the statement of Rajeev was recorded. He has denied that he did not reach the spot and that Rajeev Kumar had not told him anything. (36) PW33 Ramesh has deposed that he has been residing at H. No.175, father of Vicky Pandit, Village Baraswa, Jahangirpuri, Delhi since threefour years with his wife and children and used to sell vegetables on Rehri. According to him, on 30th of month he does not recollect, about a year ago, may be in January, when there was an India Pakistan match, he was going to his duty. The witness has further deposed that when he went to ease himself on the way by crossing the Railway Line at the Bypass Badli, three persons came from behind, two person pushed him from behind on which he fell down and the third person put the knife on his throat and inflicted injuries and snatched his mobile and Rs.3,500/ after which all three assailants ran away. He has testified that during this process, he had fallen down into the Nala and he somehow managed to save himself and came up and took his rehri and reached his house from where St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 33 his family members took him to the BJRM Hospital. The witness has further deposed that he had seen all the three boys who were of the age group of 2526 years of average built like him, one boy was of dusky complexion whereas other two were fair. According to him, the boy who had inflicted knife upon him was of fair complexion and the boy who had snatched his mobile phone was of dusky complexion and the third boy who had removed his cash was of clear complexion.

(37) The witness has identified all the accused in the Court. He has pointed out towards the accused Devender @ Bedu as the person with a dusky complexion who had inflicted knife blows to him; the accused Sanjay @ Lal Babu as the person who had snatched his mobile and Sunder Paswan as the person who had removed the cash from his pocket. (38) On a specific Court Question the witness has deposed that on only one person was carrying a knife and has pointed out towards the accused Devender @ Vedu as the person who was carrying the knife and had inflicted the injuries upon him.

(39) With the permission of the Court leading questions were put to the witness by the Ld. Addl. PP for the State wherein he has denied the suggestion that two persons were carrying knife and has voluntarily added that only one person was carrying knife. He has also denied the suggestion that one person had put knife on his neck and other person inflicted injuries upon him and has voluntarily explained that only one person was carrying a knife and he was the same person who had first put the knife on his throat St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 34 and thereafter inflicted injuries upon him.

(40) In his crossexamination by the Ld. Defence Counsels, the witness has denied the suggestion that there was heavy traffic movement on the road at the time of incident. He has admitted that the place where he stopped his Rehri is a dark place. According to him, the electricity pole is situated at a distance of 50 feet from the place where he stopped his Rehri. He has further deposed that when accused inflicted knife blow upon him blood started oozing out from the injury. He has admitted that his clothes were smeared with blood at that time. The witness has further deposed that he did not hand over his clothes to the Police at any point of time nor police has taken the same from him. He has testified that the incident took place within time period of 1520 minutes. According to the witness, the accused persons were not known to him prior to this incident. He is unable to tell the denomination of notes which he was carrying in his pocket as he had collected different denomination notes from different people. He has further deposed that he could identify the accused persons a little at the spot. He has denied the suggestion that accused Devender @ Bedu was shown to him by the Investigating Officer outside the court room and therefore, he had identified him as the person who inflicted injuries upon him or that accused Devender is not the person who had assaulted him. He has further denied the suggestion that the accused were not involved in the incident of snatching and robbery and have been falsely implicated only to work out his case.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 35 (41) PW35 Ashok Aggarwal has deposed that he is doing the business of spices and is running a company under the name and style of SDS from 645, Mahavira Gali also called Double Transformer Wali Gali, Haiderpur from last fourfive years. According to him, around seven persons are working in his factory. He has further deposed that Sanjay @ Lal Babu resident of Jhuggies at Haiderpur had worked with him for about one month as a packer and Hem Lata Tiwari is also a worker of his factory for the last about one year. The witness has deposed that Lal Babu had taken an advance of Rs.5000/ from him stating that it should be adjusted in the salary of the next month and since Lal Babu had worked for one month his monthly salary of Rs.4000/ were with them and Rs.1000/ was to be adjusted in the salary of succeeding next month. According to him, after some days they came to know that he (Lal Babu) has been involved in a criminal case. He has further deposed that they do not keep any record of their workers. He has correctly identified the accused Sanjay @ Lal Babu. This witness was not cross examined by Ld. Defence counsel despite opportunity given.

Medical witnesses:

(42) PW13 Dr. Bhim Singh is the Autopsy Surgeon who has deposed that on 06.04.2011 he along with Dr. Ankita Dey, Senior Resident had conducted postmortem examination on the body of the Buddhi Lal, aged about 45 Years, brought by Inspector Puran Chand, PS Shalimar St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 36 Bagh. The witness has deposed that on external examination, they found following injuries.

Injury no.1: Incised Stab wound (3.5 x 0.5) cm over left chest 3 cm above left nipple and 13 cm below left shoulder.

Injury No.2: Incised stab wound one end acute and one blunt (3.5 x 0.5) cm x muscle deep present over right side of chest 5 cm lateral to right nipple.

Injury No.3: Incised stab wound (3.5 x 0.5) cm, organ deep, present over right side of chest over posterior axillary line 9 cm below right nipple.

(43) The witness has proved having opined that death in the present case was due to septicemia consequent upon stab wound over chest via injury no.3, all the injuries were antemortem, Injury No. 1, 2 and 3 were caused by single sharp edged weapon and Injury No.3 is sufficient to cause death in ordinary cause of nature. The witness has proved the postmortem report Ex.PW13/A. He has deposed that after postmortem examination, they handed over the original postmortem report along with 14 inquest papers which are collectively Ex.PW13/B and sample of blood of the deceased in cloth piece duly sealed with the seal of Hospital and the sample seal to the Investigating Officer. (44) According to the witness, on 18.04.2011, Inspector Puran Chand, Police Station Shalimar Bagh had moved an application before him St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 37 seeking an opinion and also produced him one sealed packet having three seals of PC which on opening was found to contain, one single edged silver colour metallic knife. He has proved having prepared the sketch of the same, which is Ex.PW13/C and after examining the said knife, he gave his opinion, which is Ex.PW13/D according to which the injuries no. 1 to 3 as mentioned in the postmortem could be caused by the above examined weapon. This witness has not been crossexamined on behalf of the accused despite opportunity given and his entire testimony has gone uncontroverted.

(45) PW17 Dr. Rajesh Satija has deposed that on 30.03.2011, one unknown patient was brought to the BJRM Hospital by Const. Ramphal with a history of physical assault. According to the witness, the patient was semiconscious, responding to painful stimulus but not responding to verbal commands. He has deposed that after examining the patient, since his condition was critical and SR Surgery was not available, the patient was referred for higher center for management. The witness has proved the MLC which is Ex.PW17/A and according to him two injuries were noticed on the body of the injured i.e. first stab injury in the right chest wall laterally below arm pit (3 x 1 cm) and second bruise mark with abrasion on right chest wall front near sternum (3 x 2 cm). The witness has deposed that the MLC was prepared by Dr. Shailesh Pratap Singh, JR, Casualty. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 38 (46) In his crossexamination, the witness has admitted that there is a cutting in the MLC at point X and has voluntarily added that the same has been done by Dr. Shailesh Pratap Singh. He has admitted that the correction does not bears the initials of Dr. Shailesh. (47) PW18 Dr. Ashutosh Mishra SR (Surgery) from Sushruta Trauma Center has deposed that on 31.03.2011 he examined an unknown patient with alleged history of assault by hard and sharp object as the patient was referred from BJRM hospital and he prepared the death summary which is Ex.PW13/B. According to the witness, on examination and investigations finding was hypodenc lesion present in high parital and left paritooccipital region query non hemorrhagic contusion, USG abdomen finding was normal. The witness has further deposed that final diagnosis was right stab injury chest with right haemothorax with traumatic brain injury and that the death summary in this regard is Ex.PW18/A. This witness has not been crossexamined on behalf of the accused despite opportunity given and his entire testimony has gone uncontroverted. FSL Witnesses:

(48) PW19 Dr. Virender Singh, (Senior Scientific Officer (documents), FSL, Rohini), has deposed that on 10.06.2011 one mobile phone make SPICE model No. S525 in three broken pieces was received at their laboratory in sealed condition which was marked by him as Q1 and the same was returned as unexamined as it has not been possible for him to St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 39 examine the exhibits forensically, in sealed condition with the seal of DOC.FSL. He has proved his detailed report in this regard which is Ex.PW19/A according to which the suspect storage media vide marked Q1 received in broken condition and exists into three pieces and as such it has not been possible to examine the exhibit forensically using Universal Forensic Examination Device of M/s. Cellebrite Mobile Synchronization Ltd., Israel. This witness has not been crossexamined on behalf of the accused despite opportunity given and his testimony has gone uncontroverted.

(49) PW20 Indresh Kumar Mishra (Sr. Scientific Officer (Biology) FSL), has deposed that on 08.06.2011 seven parcels in connection with case FIR No.115/11 Police Station Shalimar Bagh were received in their office in sealed condition and seal were tallied and found correct. According to the witness, after opening the parcels he found one foul smelling shirt having brown stains Ex.1 in Parcel No.1, cotton wool swab having light brown stains Ex.3 in Parcel No.3, sand material Ex.4 in parcel no.4, cotton wool swab having light brown stains Ex.5 in parcel no.

5, cemented concrete material having brown stains Ex.6 in parcel no. 6, brown gauze cloth piece described as blood sample in gauze piece Ex.7 in parcel no. 7 and one knife Ex.9 in parcel no. 9. The witness has deposed that on biological examination of the above said exhibits blood was detected on Ex.1, Ex.3, Ex.5, Ex.6 and Ex.7 but blood could not be St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 40 detected on Ex.4 and Ex.9. The witness has proved his detailed report which is Ex.PW20/A and serological examination report of the above said exhibits which is Ex.PW20/B. The witness has further proved that human blood was found on Ex.1, Ex.3, Ex.5, Ex.6 & Ex.7 and "AB" blood group was found on Ex.1 and Ex.7. According to the witness, on 08.07.2011 one parcel in connection with above said case FIR was received at their office in sealed condition and the same was tallied with the sample seal and found correct. The witness has deposed that the parcel was opened and found one bag having brown stains Ex.'1a' and one tiffin having very light brown stains Ex.'1b' in the parcel. The witness has further deposed that on biological examination, blood was detected on Ex.'1a' and Ex.'1b'. He has proved his detailed report in this respect Ex.PW20/C and on serological examination human blood was found on bag Ex.'la' vide report Ex.PW20/D This witness has not been crossexamined on behalf of the accused despite opportunity given and his entire testimony has gone uncontroverted.

Nodal Officers:

(50) PW14 Sanjeev Lakra, Alternate Nodal Officer, Reliance Communication Ltd. has brought the record pertaining to Mobile No. 9015968416 issued in the name of Babloo S/o Shriram, R/o House No. 70, Gali No. 5, Jahangirpuri, Haiderpur, Delhi83. He has placed on record the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 41 copy of the customer application form which is ExPW14/A; copy of the ESI Card in support of address of Babloo which is ExPW14/B; call detail record of Mobile No. 9015968416 for the period 21.03.2011 to 30.03.2011 which is Ex.PW14/C (three pages) and certificate under Section 65B of the Evidence Act in respect of the aforesaid mobile numbers which is ExPW14/D. (51) In his crossexamination the witness has deposed that the above call details record has been got retrieved from the Circle Office situated at Ranjeet Marg. He has denied the suggestion that they does not have power back up and frequent shutting down of the system as a result of which the data is not accurate and has voluntarily explained that they have a power back up system for 24 hours. The witness has also denied the suggestion that the record as aforesaid has been fabricated and manipulated at the instance of the police or that the record available on the server can be modified at any time and has voluntarily explained that necessary security measures have been taken and it is not possible to tamper/ change the same without detection.

(52) PW15 Pawan Singh, Nodal Officer from Idea Cellular Ltd. has brought the record pertaining to Mobile No. 9990607478 (IMEI No. 353481020216340) in the name of Anant Kumar Tiwari S/o Abhay Raj Tiwari, R/o 321, Banjara Wali Gali, Haiderpur, Delhi. He has placed on record the copy of the customer application form which is ExPW15/A;

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 42

copy of the election card, copy of front page of pass book of Karnataka Bank Ltd. and copy of PAN card in support of address of Anant Kumar Tiwari which are are ExPW15/B, Ex.PW15/C and Ex.PW15/D respectively and the call detail records of Mobile No. 9990607478 (IMEI No. 353481020216340) for the period 31.3.2011 to 3.4.2011 which are collectively Ex.PW15/E (one page). The witness has also brought the detail record pertaining to Mobile No. 9990788582 in the name of Sundser Paswan S/o Upender Paswan, R/o 107, Mazdoor Camp, Haiderpur Village Delhi. He has placed on record the copy of the customer application form which is ExPW15/F; copy of the RC in support of address of Sunder Paswan which is ExPW15/G and the call detail record of Mobile No. 9990788582 for the period 29.3.2011 to 5.4.2011 which is collectively Ex.PW15/H (two pages). The witness has also brought the detail record pertaining to Mobile No. 9540607230 in the name of Dhanno Paswan S/o Dhophai Paswan, R/o 341A, THuts, Sanjay Camp, Haiderpur Village Delhi. He has placed on record the copy of the customer application form which is ExPW15/I; copy of the election card in support of address of Dhanno Paswan which is ExPW15/J and the call detail record of Mobile No. 9540607230 for the period 27.3.2011 to 5.4.2011 which is collectively Ex.PW15/K (two pages).

(53) The witness Pawan Singh has also produced the detail record pertaining to Mobile No. 9718200538 in the name of Shambhu St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 43 Shivnandan Paswan S/o Jeetan Paswan, R/o A5, G7, Shriram Colony, Karawal Nagar, Delhi. He has placed on record copy of the customer application form which is ExPW15/L; copy of the election card in support of address of Shambhu Shivnandan Paswan which is ExPW15/M; call detail record of Mobile No. 9718200538 for the period 27.3.2011 to 5.4.2011 which are collectively Ex.PW15/N (eight pages) and the Cell ID Chart is collectively Ex.PW15/O (thirty nine pages). He has placed on record the Certificate under Section 65B of the Evidence Act in respect of the aforesaid mobile numbers which is ExPW15/P and the authorization letter from the company duly authorizing him to issue the certificate under Section 65 of the Evidence Act in his capacity as Nodal Officer copy of which is Ex.PW15/Q. The said witness has been crossexamined by the Ld. Defence Counsels on similar lines as that of PW14 Sanjeev Lakra but nothing much has come out of the same.

(54) PW16 Israr Babu, Alternate Nodal Officer from Vodafone has brought the record pertaining to Mobile No. 9899695768 in the name Dhanno Paswan S/o Dhophai Paswan, R/o 341A, THuts, Sanjay Camp, Haiderpur Village Delhi. He has proved the customer application form which is ExPW16/A; copy of the election card in support of address of Dhanno Paswan which is ExPW16/B and the call detail record of Mobile No. 9899695768 for the period 27.3.2011 to 5.4.2011 which is collectively Ex.PW16/C (one page). The witness has also placed on record the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 44 Certificate under Section 65B of the Evidence Act in respect of the aforesaid mobile numbers which is ExPW16/D. According to him, he has been duly authorizing by his company to issue the certificate under Section 65 of the Evidence Act in his capacity as Alternate Nodal Officer copy of which authorization is Ex.PW16/E. The said witness has been cross examined by the Ld. Defence Counsels on similar lines as that of PW14 and PW15 but nothing much has come out of the same.

Police/ official witnesses:

(55) PW1 SI Devender is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW1/1 wherein he has proved having inspected the spot and having prepared his report which is Ex.PW1/A. He has been crossexamined by the Ld. Defence counsels but nothing much has come out of the same.

(56) PW2 Ct. Parvinder is a formal witness being the Crime Team photographer who has been examined by way of affidavit which is Ex.PW2/1 wherein he has proved having taken the photographs of the spot of incident which photographs are Ex.PW2/A1 to Ex.PW2/A8 negatives of which are Ex.PW2/B collectively. He has been crossexamined by the Ld. Defence counsels but nothing much has come out of the same.

(57) PW3 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW3/1 St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 45 wherein he has proved having prepared the scaled site plan which is Ex.PW3/A. He has been crossexamined by the Ld. Defence counsels but nothing much has come out of the same.

(58) PW4 ASI Dori Lal is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW4/1 wherein he has proved having registered the FIR on the basis of rukka which is Ex.PW4/A and the copy of FIR is Ex.PW4/B. He has proved that the copy of FIR and original rukka was handed over to Ct. Pawan Kumar to deliver the same to SI Praveen Kumar. He has been crossexamined by the Ld. Defence counsels but nothing much has come out of the same.

(59) PW5 HC Pawan Kumar is a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW5/1 wherein he has proved having lodged the DD No. 32A copy of which is Ex.PW5/A. He has not been crossexamined by the Ld. Defence counsels and his testimony has gone uncontroverted.

(60) PW6 HC Pramod is a formal witness being the Duty Officer of Police Station Samaypur Badli who has been examined by way of affidavit which is Ex.PW6/1 wherein he has proved having registered the FIR No. 14/11, under Sections 394/397/34 IPC of Police Station S.P. Badli on the basis of rukka which is Ex.PW6/A and after registering the FIR, the investigation of the case was entrusted to ASI Harender Singh. This witness has not been crossexamined on behalf of the accused despite opportunity St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 46 given and the entire testimony has gone uncontroverted.

(61) PW7 Ct. Bhupender is a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW7/1 wherein he has proved having lodged the DD No. 7B dated 2.4.2011 regarding death of an unknown person who had been admitted in Trauma Centre on 30.3.11 copy of which DD is Ex.PW7/A. This witness has not been crossexamined on behalf of the accused despite opportunity given and the entire testimony has gone uncontroverted.

(62) PW8 Ct. Monu Yadav is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW8/1 wherein he has proved having lodged DD No.73B dated 30.3.2011 copy of which is Ex.PW8/A. This witness has not been crossexamined on behalf of the accused despite opportunity given and the entire testimony has gone uncontroverted.

(63) PW9 Ct. Ajay is also a formal witness who has been examined by way of affidavit which is Ex.PW9/1 wherein he has proved that the seizure memo of the blood sample of the deceased which seizure memo is Ex.PW9/A and handing over of the dead body which is Ex.PW9/B. This witness has not been crossexamined on behalf of the accused despite opportunity given and the entire testimony has gone uncontroverted.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 47

(64) PW10 HC Mukesh Chand is the MHCM who has proved the various entries i.e. entry no.3620/11 in Register No.19 copy of which is Ex.PW10/A; entry no.3626/11 in Register No.19 copy of which is Ex.PW10/B; entry no.3627/11 in Register No.19 copy of which is Ex.PW10/C; entry no.3630/11 in Register No.19 copy of which is Ex.PW10/D and entry no.3701/11 in Register No. 19 copy of which is Ex.PW10/E. He has also proved the copies of the RC No.37/21/11 which is Ex.PW10/F; copy of RC No. 38/21/2011 which is Ex.PW10/G; copy of RC No. 52/21/2011 which is Ex.PW10/H and the FSL Receipts are Ex.PW10/I, PW10/J and Ex.PW10/K. The witness has further proved that on 17.05.2011, one mobile phone make Nokia duly sealed with the seal of PC was sent to Police Station Samay Pur Badli vide RC No. 21/21/11 for investigation in case FIR No. 141/11 which RC is Ex.PW10/L. He has been crossexamined by the Ld. Defence counsels but nothing much has come out of the same.

(65) PW11 W/HC Sangeeta is a formal witness being the PCR official who has been examined by way of affidavit which is Ex.PW11/1 wherein she has proved the PCR information dated 30.3.2011 copy of which is Ex.PW11/A. According to her at about 22.23 Hrs, a PCR call regarding 'Khoon Ho Gaya Hai' C & D Block, Shalimar Bagh near Badli More, Gate No.4, Police booth ke pass was received from a Mobile No. 9910378590 which was recorded by her. This witness has not been crossexamined on St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 48 behalf of the accused despite opportunity given and the entire testimony has gone uncontroverted.

(66) PW12 Ct. Anil Kumar is again a formal witness who has been examined by way of affidavit which is Ex.PW12/1 and has proved the RC No. 37/21/2011 copy of which is Ex.PW10/F vide which he had taken the pullandas from the MHCM and deposited the same in the FSL Rohini. This witness has not been crossexamined on behalf of the accused despite opportunity given and the entire testimony has gone uncontroverted.

(67) PW34 Ct. Ram Phal has deposed that on 30.03.2011 he was posted as Constable at Police Station Shalimar Bagh and on the intervening night of 30/31.03.2011 he was on patrolling duty in the area of his beat.

According to the witness, while patrolling at about 10:15 PM when he reached C & D Block and when he was coming from inside C&D Block towards outer gate, he saw two security guards namely Amit Giri and Farakat Ali coming towards inside the colony from the outer gate. He has testified that on asking they told that three boys had stabbed a person and on receipt of this information he immediately came out of the outer gate where he saw a man was lying in injured condition at the footpath and he was bleeding towards the right side arm pit. The witness has also deposed that on seeing the situation he took that injured in a TSR to BJRM hospital and after some time SI Parveen Kumar also reached in the hospital and collected the MLC of that injured. He has also deposed that the doctor had handed over sealed pullanda of clothes of injured along with Rs 45/ which St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 49 were recovered from the possession of the injured and sample seal which were taken into possession by SI Parveen Kumar vide seizure memo Ex.PW34/A. He has proved that the amount of Rs.45/ which was recovered from the pocket of injured were taken into possession by SI Parveen Kumar vide seizure memo Ex.PW34/B. According to him, after some time injured was removed to Trauma Center, Civil Lines and from the Trauma Center they had reached the spot where his statement was recorded by SI Parveen Kumar. He has proved that on 10.06.2011 as per the directions of the Investigating Officer he took one sealed pullanda containing one mobile phone (S525) vide RC No. 38/21/11 along with forwarding letter of SHO to be deposited at FSL, Rohini and accordingly he deposited the same at FSL Rohini vide receipt No. FSL2011CFU3065 dated 10.06.2011 after which he handed over the acknowledgment receipt to MHC(M). According to the witness during the period the pullanda remained in his custody it was not tampered with and on 10.06.2011 his supplementary statement in this regard was recorded by the Investigating Officer. He has identified the case property i.e. the shirt which injured was wearing at the time when he removed him to the hospital, which shirt is Ex.P4.

(68) In his cross examination the witness has deposed that he had started patrolling in the area after briefing by the SHO at Police Station. He is however unable to tell the time when he left the police station but states that it might be about 5:30 PM. According to the witness, he was St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 50 having his official motorcycle with him bearing No. DL1SJ1259. He has testified that the three wheeler was coming from the bye pass side but he is unable to tell the number of the said three wheeler or the name of the driver. He has denied the suggestion that there were big trees between the source of light and the place where the injured was lying. The witness has further deposed that he had not made any call at 100 number nor he made inquiry if any one made such call. He has also deposed that the Investigating Officer met him at the hospital at about 11:00 PM. He does not recollect whether the Investigating Officer was alone or accompanied by someone. The witness has further testified that the doctor prepared the pullanda in his presence but he is unable to tell if the Investigating Officer obtained the signatures of the doctor on the said pullanda or on the seizure memo of the same. According to the witness, he had mentioned to the Investigating Officer in his statement recorded under Section 161 Cr.P.C. on 10.06.2011 that the mobile phone received by him from MHC(M) was in a sealed pullanda. However, when confronted with his statement Ex.PW34/DA the words sealed pullanda was not found mentioned. He has denied the suggestion that he had not visited the spot or that he had not shifted the injured to the hospital.

(69) PW36 Ct. Pawan has deposed that on the intervening night of 30/31.03.2011 he was posted at Police Station Shalimar Bagh from 8.00PM to 8.00AM on emergency duty. According to him, on receipt of DD NO. 32A at 10.35pm he alongwith SI Praveen went to outer gate CD Block, St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 51 Near Badli Road, Outer Ring Road where they reached at about 10.50 PM and came to know that Ct. Ramphal already shifted the victim to BJRM Hospital. He has further deposed that he was left at the spot for preserving/ safeguarding the same whereas SI Praveen went to BJRM Hospital. According to the witness, after some time SHO Police Station Shalimar Bagh and Inspector investigation came to the spot and called the crime team who inspected the spot and took photographs of the same. The witness has further deposed that after sometime SI Praveen Kumar also came to the spot and handed over to him a tehrir with the directions to taking the same to the police station for registration of the FIR and accordingly he took the tehrir to the police station and handed over the same to the Duty officer who after registration of the FIR handed over to him the copy of FIR and original tehrir which he brought to the spot and handed over the same to SI Praveen Kumar. He has proved that SI Praveen lifted earth control and blood stained earth with the help of cotton and put the same in separate plastic containers and sealed the same with the seal of RPS which seal after use was handed over to him and the pullanda was seized vide memo Ex.PW36/A. (70) In his crossexamination the witness has deposed that SI Praveen had left the spot and went to BJRM Hospital after twofour minutes after reaching there and SHO had reached the spot virtually at the same time and has voluntarily added that just as SI Praveen left the spot SHO came there. According to him, when they reached the spot they found St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 52 public persons at the spot. He is unable to tell if the Investigating Officer had interrogated or made any enquiry from public persons nor is he able to tell how many public persons were there and has voluntarily explained that it is a main raasta and large number of passers byes were coming and going from the spot. The witness has also deposed that SI Praveen returned at about 12.0012.30AM alongwith the tehrir which he handed over to him. He has further testified that he had received the tehrir at 1.30AM which he took to the police station and returned back to the spot at about 3.003.15 AM. According to the witness, he had gone to the police station on the motorcycle of the Investigating Officer. He has admitted that no separate seizure memo of the seal was prepared. He has denied the suggestion that no seal was handed over to him and it is for this reason that no seizure memo was prepared. He has also denied that there was a total darkness in the area due to huge trees around and has voluntarily explained that there is electricity pole from where the light was coming.

(71) PW37 SI Rajesh Kumar Verma has deposed that on 08.04.2011 he was posted as Probationary Sub Inspector and on that day he joined the investigation alongwith ASI Lala Ram, HC Harish, Ct. Ramphal and Ct. Pradeep. According to the witness, the accused Lal Babu and Sunder Paswan were there in the police station and were being interrogated by the Investigating Officer in his presence and supplementary statements of both accused Lal Babu and Sunder Paswan were recorded in his presence which are Ex.PW37/A and Ex.PW37/B respectively. He has testified that St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 53 during the interrogation the accused Lal Babu disclosed that whatever he had earlier stated on 30.03.2011 in his disclosure was false and incorrect and that on 30.03.2011 he alongwith Bedu and Sunder Paswan at about 10.00PM had robbed one person at C & D Block Shalimar Bagh of his mobile phone and tiffin after inflicting knife blows on him which tiffin was taken by his associate Bedu whereas he kept the mobile phone which mobile he had passed on to a lady known to him by the name of Hemlata Tiwari W/o Anand R/o Govind Mohalla Haiderpur. According to the witness the accused further disclosed that he had told this lady Hemlata to keep the phone as it was spare with him and she could give him Rs.500/ later on but later he came to know from Bedu that the person from whom they had looted / robbed this mobile had expired and therefore they should take the phone from lady and destroyed the same on which Lal Babu took back the phone from the said lady and after breaking the phone handed over the broken pieces to a person known to him for throwing the same. The witness has further deposed that the accused Lal Babu also disclosed that the said person broke the phone in his presence and threw the same in a nali/ ditch which he could get recovered. He has proved that a raiding party was constituted after which Lal Babu took the raiding party to Jhuggies at Sanjay Camp where the person who had thrown the phone in the nali also met them and thereafter Lal Babu pointed out the nali/ ditch in which the broken phone was thrown and the said person who had thrown the phone in the nali also joined the police party and got the phone recovered from the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 54 nali by putting his hand in the same. According to the witness, the said broken mobile was in three pieces and the Investigating Officer took the same into possession and converted the same into pullanda and sealed the same with the seal of PC which he seized vide memo Ex.PW23/A. He has testified that thereafter Lal Babu further disclosed in his disclosure that earlier also that they had committed an incident of robbery on the same intervening night near Karnal Bye pass and had robbed another mobile and cash from a passerbye which mobile phone he could get recover from his jhuggi pursuant to which Lal Babu took them to his jhuggie from where he got recovered a NOKIA phone of black colour from the Taand of his jhuggi under the clothes. The witness has proved that the Investigating Officer converted the same into pullanda and sealed the same with the seal of PC and seized the same vide proceedings under Sections 102 Cr.P.C. which are Ex.PW37/C and the seal after use was handed over to him. The witness has further deposed that the Investigating Officer had had got the entire recovery proceeding videographed and recorded the statement of the public person / boy who had joined and helped in the recovery proceedings and relieved him from the spot. He has also deposed that statement of the photographer was also recorded and thereafter they returned to the police station where his statement was also recorded by the Investigating Officer. (72) The witness has correctly identified both the accused Lal Babu and Sunder Paswan in the court and also identified the case property i.e. one broken mobile phone in three pieces make 'spice' S525 as the same St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 55 which was got recovered at the instance of accused Lal Babu, which are collectively Ex.P1 whereas the other mobile make NOKIA which was got recovered by the accused Lal Babu from his jhuggi, had been sent to Police Station Samaipur Badli being the case property. Leading question was put to the witness with regard to the name of the person who helped in recovery of mobile wherein the witness has admitted that the name of the public person who joined the investigation was Gautam Kumar. (73) In his crossexamination the witness has deposed that he had joined the investigation at 11.30AM and the interrogation took place for about 2 and 2 ½ hours. He has admitted that large number of public person visit the police station and states that no public person was joined during the interrogation since the accused were interrogated in the room of the Investigating Officer. He has denied the suggestion that the accused did not make any supplementary disclosure statement and it is for this reason that their supplementary disclosure statement do not bear any signatures of public person. According to the witness, they reached the jhuggi cluster at about 4.154.30PM and the Pradhan of the jhuggi cluster was not joined at the time of investigations. He has admitted that large number of public persons had gathered when they reached at jhuggi cluster but apart from Gautam Kumar no public person was joined in the investigations. He has denied the suggestion that Lal Babu did not point out any nali or that recovery of Ex.P1 was in fact got effected by Gautam Kumar and has been shifted and planted upon the accused Lal Babu. The witness has also St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 56 denied the suggestion that he did not join the investigations. (74) PW38 SI Anil Kumar has deposed that on 06.04.2011, he was posted as PSI at Police Station Shalimar Bagh and on the intervening night of 0607.04.11, on receipt of secret information about the suspect of this case to Inspector Puran Chand, he had joined investigation of this case with him after which he along with Inspector Puran Chand, SI Praveen Kumar, HC Harish, HC Umed Pal, Ct.Pradeep and Ct. Ram Pal had left the Police Station at about 12:10 PM in Qrt gypsy no. DL2CAK5292 which was being driven by Ct. Pradeep. According to the witness, they were having search light and official weapons with them and from the Police Station, first of all they reached C&D Block, Shalimar Bagh from where two security guards namely Farakat Ali and Amit Giri were also joined with them. He has testified that thereafter they reached near Railway Bridge, Mukarba Chowk at Outer Ring Road. He has testified that as per the directions of Inspector Puran Chand, they went to C&D Block towards the lower surface after passing through Kacha Rasta where two boys were found sitting on a cemented junction which was about eightten feet in height towards Railway Line. The witness has also deposed that on seeing the police party, both the boys jumped down and one of them ran towards Railway Line whereas the other boy ran towards C&D Block on which police party chased those boys. He has testified that the boy who ran towards railway line was overpowered by him with the help of Ct. Pradeep and the boy who ran towards C&D Block was apprehended by SI Praveen St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 57 with the help of Ct. Harish at a distance of 5060 yards. According to him, on seeing those boys both the security guards had identified them and told them that these were the same two boys who alongwith their third associate had stabbed the person at the outer gate of C&D Block on 30.03.11. He has further deposed that after apprehension, both the boys were brought near the street light was situated at a distance of 3040 yards from the Civil Line junction. The witness has testified that the boy who was apprehended by them revealed his name as Sunder Paswan S/o Upender Paswan and from his personal search one buttondaar knife was recovered from the right hand pocket of his pant after which the sketch of the knife was prepared. He has also deposed that the knife was also measured, length of the knife was 22.5 cm, length of its handle was 12.5 cm and the length of its blade was 6 cm and BLACK HAWK were written on the blade of the knife. According to him, pullanda of the knife was prepared by the Investigating Officer which was sealed with the seal of PC and was taken into possession vide Ex.PW38/A. The witness has testified that the sketch of the knife was prepared which is Ex.PW38/B and the seal after use was handed over to SI Praveen Kumar. He has also deposed that the other boy revealed his name as Lal Babu and after interrogation both the accused were arrested in this case. He has further deposed that both the accused were thereafter arrested by the Investigating Officer and their personal searches were conducted. The witness has further proved that on brown purse containing photocopy of the DL, one USD Card and Rs.2187/ in cash since Gillette blade, one St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 58 mobile phone of black colour of Sony Ericson, one YE Mobile phone V97 of Silver colour and one silver colour chain, one yellow colour finger ring with piece of stone and some cards were recovered from the personal search of accused Sunder Paswan. He has also deposed that one brown purse containing one ten rupee note in torn condition, 6 Rupees of Nepali currency, one mobile phone Nokia NX 500 were recovered from the personal search of accused Lal Babu which were taken into possession by the Investigating Officer. According to the witness, the Investigating Officer recorded the disclosure statements of both the accused which are Ex.PW38/C and Ex.PW38/D. He has testified that pursuant to their disclosure statements, both the accused persons took them at the spot i.e. outside main gate of C & D Block where both the accused pointed out the place of occurrence on which the Investigating Officer prepared pointing out memos of the place of occurrence by both the accused which are Ex.PW38/E and Ex.PW38/F. According to him, thereafter both the accused were brought at the Police Station where his statement was recorded by the Investigating Officer. The witness has correctly identified both the accused Sunder Paswan and Lal Babu in the Court. He has also identified the case property i.e. buttondaar knife recovered from the possession of the accused, which is Ex.P4.

(75) In his crossexamination by the Ld. Defence Counsels the witness has deposed that they were total seven police officials and two guards in raiding party reached at about 1:00 1:30 AM. According to the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 59 witness, he caught hold accused Sunder Paswan at a distance of 3040 yards while he was running after jumping from the cemented junction. He has testified that except for the guards no other public person was available there. The witness has further deposed that first of all disclosure statement of accused Sunder Paswan was recorded and at that time, accused Lal Babu was kept away. He has also testified that it took about half an hour while recording the disclosure statement of Sunder Paswan by Inspector Puran. He has further deposed that all the writing work was done while sitting on chairs which was got arranged from the guards. According to him, the statements of guards were also recorded but he is unable to tell as to at what time, the statements of guards were recorded by the Investigating Officer. He has also deposed that the knife was sealed by the Investigating Officer with his seal and for measurement of knife, all the instrument were available with the IO Kit. He has denied the suggestion that all writing work was completed at the Police Station or that he did not join the investigation with the Investigating Officer.

(76) PW39 EX SI Parveen Kumar has deposed that in the intervening night of 30/31.03.2011 he was posted at police station Shalimar Bagh and was on emergency duty from 8 PM to 8AM when at about 10:35 PM he received DD No. 32A regarding murder on which he along with Ct. Pawan went in front of C&D Block, Haiderpur where they found blood scattered on the ground. According to the witness he was informed by the chowkidar that beat Ct. Ram Phal had come to the spot and taken the victim St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 60 to BJRM hospital. The witness has deposed that he left Ct. Pawan to preserve the spot whereas he himself went to BJRM hospital, where he came to know that the injured had been shifted to the Trauma Center. He has also deposed that Ct. Ram Phal who was still at the hospital, handed over to him a sealed pullanda duly sealed with the seal of BJRM hospital and the MLC of the injured with sample seal of the hospital. The witness has testified that on inquiry from the hospital, he came to know that there was nobody accompanying the injured and thereafter he along with Ct. Ram Phal went to Trauma Center, where they came to know that the injured was in a critical condition. He has further deposed that he thereafter returned to the spot where he found the SHO and the Inspector Investigations already present along with the crime team whom they had called. He has also deposed that the crime team was inspecting the spot and the photographer was taking the photographs of the same. He has proved having prepared a tehir at the spot itself which is Ex.PW39/A which he handed over to Ct. Pawan with the directions to take the same to the police station for registration of the FIR. According to the witness, after some time Ct. Pawan returned to the spot along with the original tehrir and the copy of the FIR after which he lifted the earth control and the blood stained earth with the help of the cotton wool and put the same into plastic container and sealed the same with the seal of RPS and handed over the said seal to Ct. Pawan. He has proved having prepared the seizure memo of the same which is Ex.PW36/A. The witness has testified that next day St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 61 morning he went to Trauma Center where the injured was again found critical and not fit to make statement. According to the witness, he got a hue and cry notice issued and tried to establish the identity of the injured and to trace his family in the area but could not find any traces. He has further deposed that on the third day i.e. 02.04.2011 he came to know that the injured had expired at Trauma Center on which he went to the trauma center and from there he took the body to BJRM hospital where he moved an application before the incharge mortuary for getting his postmortem conducted which application is Ex.PW39/B. According to the witness, the postmortem of the deceased was got conducted and the investigations were thereafter transferred to Inspector Investigations. (77) The witness has also deposed that he again joined the investigations on the intervening night of 06/07.04.2011 along with Inspector Investigations Puran Chand, SI Anil Malik, HC Harish, HC Umed Pal, Ct. Ram Phal and Ct. Pardeep when a secret information had been received by Inspector Investigations regarding the presence of the suspects at Railway lines, near the byepass on which they went to the railway lines near the C&D Block, Shalimar Bagh and after parking their gypsy at the main gate C&D Block, they went on foot towards the railway lines where they found two boys sitting on the cemented platform near the junction box. The witness has further deposed that on seeing them the said boys started running in different directions but the boy who was running towards the C&D Block was apprehended by him and HC Harish, whereas St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 62 the other boy who was running by crossing the railway lines was caught by SI Anil Malik and Ct. Pardeep. According to him, the said boys were brought near the gypsy where they were interrogated and their names were disclosed as Sunder Paswan and Lal Babu. The witness has testified that during search one knife was recovered from the possession of Sunder Pawan and two mobile phones and a cash of around Rs.2,000/ were also recovered from his possession and from the search of the other accused Lal Babu one local mobile was recovered from his possession. He has proved that the accused were interrogated and they disclosed that they were involved in small snatching incidents and that they had committed a robbery on the intervening night of 30/31.03.2011 of a mobile phone from a person who was passing through the C&D Block Gate. The witness has further deposed that the accused disclosed that the India Pakistan match was going on that day and felt that the said person would having Rs. 300400/ in his possession but when they caught him, the said person raised an alarm on which Vedu had stabbed the said person. He has proved that the Investigating Officer arrested the accused vide memo Ex.PW29/PX2 & Ex.PW29/PX4; their personal search were conducted vide memo Ex.PW29/PX3 and Ex.PW29/PX5 and their disclosure statements recorded by the Investigating Officer which are Ex.PW38/C and Ex.PW38/F. According to him, the said persons were taken to police station where they were put in the lock up.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 63 (78) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein he has admitted that sketch of the knife recovered from the possession of the accused Sunder Paswan was prepared which is Ex.PW38/B. According to the witness the knife was measured and it was found to be having a total length of 22.5 cm and length of the handle was 12.5 cm whereas the length of the blade was 10 cm, on the blade words Black half were inscribed and the figure of a lady was inscribed on the handle. He has proved that pullanda of the knife was prepared by the Investigating Officer which pullanda was sealed with the seal of PC and taken into possession vide memo Ex.PW38/A which seal after use was handed over to him. The witness has also deposed that after apprehension both the accused were brought under the street light near eastern light where their personal search was conducted. According to him, at the time of arrest both the accused had disclosed their involvement in the present crime and in pursuance of their disclosure statements both the accused persons had taken them at the spot i.e. outside outer gate of C&D block, Shalimar Bagh where both the accused had pointed out the place of occurrence on which the Investigating Officer had prepared pointing out memo of accused Lal Babu which is Ex.PW38/E and pointing out memo of accused Sunder Lal which is Ex.PW38/F. The witness has also deposed that apart from the cash one brown color purse containing photocopy of DL, one US dollar, Rs.287/ in cash, six Gillette blade, one Sony Ericsson mobile phone of black color and one YE mobile phone V97 of silver color St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 64 and one silver color chain along with one yellow color finger ring were also recovered from the personal search of accused Sunder Paswan. He has testified that a ten rupee note in torn condition, six rupee of Nepali currency which were kept in one brown color purse along with one mobile phone NIKOLA NX 500 were recovered from the personal search of accused Lal Babu. He has testified that at the time when he had reached the spot from the hospital he had also prepared the rough site plan of the place of incident at the instance of chowkidar which site plan is Ex.PW39/C. According to him, when he had reached BJRM hospital he had also collected the pullanda of blood stained shirt along with sample seal and Rs.45/ in cash which were handed over by the doctor and he took the same into possession. He has proved the seizure memo of Shirt which is Ex.PW34/A and seizure memo of Rs 45/ which is Ex.PW35/B. The witness has testified that on 05.04.2011 he had also moved another application to the Incharge Mortuary BJRM for preserving the dead body of deceased for its identification, copy of which application is Ex.PW39/D. According to him, since further investigations of the present case was handed over to Inspector Puran Chand, Addl. SHO Police Station Shalimar Bagh hence he handed over the case file to him who carried out the inquest proceedings.

(79) The witness has correctly identified both the accused Sunder Paswan and Lal Babu. He has also identified the case property i.e. one buttondar knife of steel with a steel handle word Black half inscribed on the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 65 blade as the same which was recovered from the possession of accused Sunder Paswan, which knife is Ex.P4.

(80) In his cross examination by the Ld. Defence Counsels he has deposed that he had not mentioned the fact that when he reached the spot, it was the chowkidar who told him about the removal of injured to the hospital by Ct. Ram Phal. According to him, the parcels were not sealed with his seal. He has denied the suggestion that the parcels had been sealed with the seal of RPS because he was not present at the spot to carry out the investigations and has voluntarily added that he had misplaced his seal and therefore he had put the seal of RPS but he has not mentioned this fact regarding the misplacing of the seal in the seizure memo of the exhibits. He has denied the suggestion that the place of incident is a dark place and there is no source of light situated nearby. He has deposed that he did not obtain the signatures of chowkidar on the site plan nor he mentioned the place from where the incident was witnessed by chowkidar. According to him, the knife was recovered from the right side pocket of accused Sunder Paswan who was apprehended from a distance of 5060 yards. He has testified that the disclosure statements of the accused persons were recorded by the Investigating Officer in his presence but he does not recollect the exact time when the same were recorded. (81) PW40 ASI Lala Ram has corroborated the testimony of SI Rajesh Kumar Verma (PW37) in toto and has proved the documents i.e. supplementary disclosure statement of accused Lal Babu which is St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 66 Ex.PW37/A; supplementary disclosure statement of accused Sunder Paswan which is Ex.PW37/B; seizure memo of broken mobile phone which is Ex.PW23/A and proceedings U/s 102 Cr.P.C. which are Ex.PW37/C. The witness has been crossexamined by the Ld. Defence Counsels on similar lines as that of SI Rajesh Kumar (PW37) and nothing much has come out of the same.

(82) PW41 Ct. Doodh Nath has deposed that on 25.06.2011 he was posted at Police Station Shalimar Bagh and on that day he along with Inspector Pooran Singh, Ct. Devender, Ct. Magan Lal, Ct. Ajay Pal departed from the Police Station for investigation of this case at about 9.35AM. According to the witness at about 2.00 PM they reached at Ayurvedic Hospital, Haiderpur where one secret informer met Inspector Pooran Chand who informed that the accused Devender @ Bedu wanted in this was coming at his jhuggi Sanjay camp at about 3.00PM from the outer ring road area. The witness has deposed that thereafter they took positions at service lane Haiderpur T Point Outer Ring Road near Toyota Showroom and the Investigating Officer briefed them. He has testified that at about 3.45 PM one person was found coming from Outer Ring Road Area who was apprehended by Inspector Pooran Chand with their help and the said person disclosed his name as Devender @ Bedu who was then interrogated by the Investigating Officer during which he confessed about his involvement in this case. He has proved that the Investigating Officer arrested accused Devender @ Bedu vide arrest memo Ex.PW41/A and his St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 67 personal search was conducted vide Ex.PW41/B after which the disclosure statement of the accused was recorded by the Investigating Officer vide Ex.PW41/C. According to him, at the instance of accused Devender one tiffin bag with tiffin recovered from behind a stone under the flyover railway bridge at outer ring road and blood stained spots were found on the tiffin bag which was thereafter kept in a cloth pullanda and sealed with the seal of PC by the Investigating Officer who seized the same vide seizure memo Ex.PW41/D. The witness has further deposed that the accused disclosed that this tiffin bag was belonging to the deceased which was taken away by him after the incident and left the same at the above said place. He has proved that the accused Devender also pointed out the place of incident and the the place where the injured/deceased fell down on the road vide pointing out memo Ex.PW41/E. The witness has correctly identified the accused Devender is the court and also the case property i.e. the tiffin bag which is Ex.P2 and the tiffin box which is Ex.P3.

(83) In his crossexamination the witness has deposed that on 25.06.2011 they proceeded from the Police Station at 9.35AM and no departure DD was recorded by the Investigating Officer in his presence. According to the witness the Investigating Officer was on official motorcycle whereas he was on his private motorcycle. He is not aware whether the Investigating Officer informed higher police officials about the secret information. The witness has testified that the secret informer accompanied them to the spot where the accused Devender was St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 68 apprehended where they reached at the spot at about 3.00PM. He has admitted that there is a police booth near the Toyota Showroom and the traffic police officials were also on duty on road near the Toyota Showroom. According to him, the Investigating Officer asked public persons to join the police proceedings but none agreed. He is not aware the names or the description of the public persons who were asked to join the investigations nor is he aware whether any notice was served upon the public persons. He has testified that they all were in police uniform and took their positions at the service lane. The witness has testified that public persons gathered at the spot when the accused Devender was overpowered by them. According to the witness, the police uniform of police official were not torn while the accused Devender was apprehended who tried to ran away from the spot but he was overpowered by them at the spot. He has also deposed that the Investigating Officer recorded disclosure statement of accused while sitting on the chair lying near the gate of Toyota Showroom and it took about 30 minutes to record the disclosure statement of accused. The witness has further deposed that no security guard was present at the gate of Toyota Showroom at that time and public persons were present there when the pointing out memo was prepared but their signatures were not obtained on the same. He has also deposed that recovery of the tiffin was effected at the instance of accused Devender at about 5.00PM but the Investigating Officer did not prepare the site plan of the place of recovery of tiffin in his presence. The witness has admitted that the place of St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 69 recovery of tiffin is an open place which is accessible to general public. He is not aware whether the Investigating Officer had lifted the chance prints from the bag and the tiffin box. He has also admitted that the tiffins, like tiffin recovered at the instance of the accused Devender are easily available in the market. He has further deposed that the Investigating Officer did not make any specific identification mark on the tiffin bag and the tiffin. According to him, the Investigating Officer took about 30 minutes for seizing the case property and they came back at the police station after 8.00PM where Investigating Officer deposited the case property in the Malkhana immediately. He has testified that the Investigating Officer handed over the seal to him at the time of of seizing of the case property but did not prepare any memo in this regard and he returned the seal to the Investigating Officer on the next day. He has denied the suggestion that accused Devender was shown to the witness when he was in police custody or that the tiffin was planted upon the accused or that nothing was recovered from him. He has further denied the suggestion that he did not join the investigation of this case or that accused Devender has been falsely implicated in this case due his previous involvements. (84) PW42 Inspector Pooran Chand is the Investigating Officer who has deposed that on 02.04.2011 he was posted at Police Station Shalimar Bagh as Inspector (Investigation) and on that day at about 6.10PM investigations of this case was marked to him. According to the witness, he constituted a team consisting of SI Praveen, PSI Anil Malik, HC Harish, Ct. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 70 Pradeep, Ct. Ram Phal for identification the dead body of deceased and hue and cry notices were also issued. He has testified that on 05.04.2011 at the evening time Hanuman, Babloo and Kanhayya Lal came at the Police Station Shalimar Bagh to inquire about the deceased Buddhi Lal and identified the photograph on the hue and cry notices as of Buddhi Lal and informed him that Buddhi Lal was having a mobile phone bearing no. 9015968416 and was having a tiffin bag with him when he left for his work on 30.03.2011. According to the witness, he recorded the statement of Hanuman, Babloo and Kanhayya Lal and they were called on the next day for identification with the relatives of the deceased. He has proved having collected the CDR of the above said mobile phone through EMail and came to know about the IMEI number of the phone of Buddhi Lal which IMEI number was sent to all the service providers for detection of the mobile phone. The witness has also proved that on 06.04.2011 he prepared the brief facts which are Ex.PW42/A; filled the inquest form which is Ex.PW42/B and made request for postmortem vide Ex.PW42/C. He has also proved having recorded the statement of Hanuman, Kanhayya Lal about the identification of the dead body vide Ex.PW26/A and Ex.PW28/A respectively and after postmortem the dead body was handed over to to Hanuman vide memo Ex.PW9/B. He has testified that Ct. Ajay Pal handed over blood sample of the deceased in sealed condition with the seal of FMT BJRM Hospital with sample seal to him and he seized the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 71 same vide seizure memo Ex.PW9/A. The witness has further deposed that Madan Lal the factory owner who gave the mobile set of Spice to the deceased Buddhi Lal for use, met him in the hospital and he recorded his statement after which they returned back to the police station and recorded the statement of witnesses and deposited the seized articles in the Malkhana. According to him, on the same day in the evening time he came to know that the mobile instrument was active and was being used by someone and the computer operator gave the name of the user of the mobile instrument to him as Anant Kumar Tiwari and also gave his address to him. The witness has further deposed that he along with HC Harish, Ct. Ramphal reached at the house of Anant Kumar Tiwari at 321, Banjara Wali Gali, Haiderpur but Anant was not found there on which they made a call on the mobile number 9990607478 which was used by Anant at that time and Hemlata Tiwari picked up the phone after which he met Hem Lata Tiwari and recorded her statement who informed him that she had used the mobile instrument but the same was taken away by accused Lal Babu @ Sanjay. According to the witness he directed the above police official to track down the above said Lal Babu and in night time he came to know that the accused Lal Babu was seen with the accused Sunder Paswan and Devender @ Bedu. He has also deposed that secret informer gave information to him that accused Lal Babu, Sunder Paswan and Devender @ Bedu were coming under the railway flyover and thereafter he formed a raiding party consisting of SI Praveen, PSI Anil Malik, HC Harish, HC St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 72 Umed Pal, Ct. Ramphal and Ct. Pradeep and they reached at C & D Block Shalimar Bagh with the official vehicle. The witness has testified that the guards of the C & D Block namely Farakat Ali and Amit Giri were informed about the secret information and they were included in the team after which they reached the railway flyover, outer ring road near Mukarba Chowk at about 1.00AM (midnight) and thereafter they proceeded towards under the flyover on foot and saw two persons sitting on the platform of the sewer junction under the railway flyover and on seeing them they ran away. He has also deposed that both the said persons were chased by them and accused Sunder Paswan was apprehended near railway line and accused Lal Babu was apprehended at near C & D Block gate, Shalimar Bagh. The witness has testified that the security guards Farakat Ali and Amit Giri identified both accused Sunder Paswan and Lal Babu as the assailants who gave knife blows on a person in front of the outer gate of C & D block gate on 30.03.2011 at about 10.00PM alongwith their third assailants. He has proved that on the formal search of the accused Sunder Paswan one buttondar knife was recovered from his right pocket of his pant on which he (witness) prepared sketch of the knife vide Ex.PW38/B. According to the witness, he took measurements of the knife and mentioned all the description and the measurement of the knife in the sketch after which the knife was kept in a cloth pullanda and the same was sealed with the seal of PC and seized vide seizure memo vide Ex.PW38/A. He has also deposed that both the accused Sunder Paswan and Lal Babu were interrogated one St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 73 by one during which they confessed about their involvement in the above said incident after which he arrested the accused Sunder Paswan vide Ex.PW29/PX2; his personal search was taken vide Ex.PW29/PX3 and his disclosure statement was also recorded vide Ex.PW38/C. The witness has proved having arrested the accused Lal Babu vide Ex.PW29/PX4; his personal search was also taken vide memo Ex.PW29/PX5 and having recorded disclosure statement of accused Lal Babu vide Ex.PW38/D. The witness has testified that he recorded the statement of Farakat Ali and Amit Giri and after both the guards left, the accused Lal Babu and Sunder Paswan pointed out the place of incident and the place where the injured / deceased fell down vide pointing out memos Ex.PW38/E and Ex.PW38/F. According to him, thereafter they returned back to the police station and deposited the seized articles in the Malkhana and both the accused persons were sent to Indian Hospital, Shalimar Bagh for medical examination and parents of both the accused persons were informed. He has testified that after medical examination both accused were produced before the court and two days' Police Custody Remand was obtained during which on 08.04.2011 accused persons were interrogated by him and recorded the supplementary disclosure statement of accused Lal Babu vide Ex.PW37/A and supplementary disclosure statement of Sunder Paswan vide Ex.PW37/B. The witness has testified that the accused Lal Babu disclosed that he had thrown the mobile phone of the deceased in broken condition in St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 74 a "Nali" near his house through his friend Gautam Kumar and that he was in possession of mobile phone which was robbed by him from another person in the same night on the railway flyover near Mukarba chowk after the incident of this case. He has also deposed that thereafter they alongwith the accused Lal Babu reached at his jhuggi at Haiderpur and private photographer was also called there and Gautam Kumar was also called there after which they searched the mobile phone of the deceased in the "Nali" with the help of Gautam Kumar during which three pieces of mobile phone of Spice was recovered form the said Nali which proceeding was videographed. The witness has testified that he kept the recovered three pieces of mobile phone in a cloth pullanda and sealed the same with the seal of PC and seized the same vide seizure memo Ex.PW23/A after which they reached the jhuggi of accused Lal Babu and at his instance one mobile phone of make NOKIA 1616 with SIM of Airtel was recovered from the "Taand" of the jhuggi at the first floor. He has proved that the mobile phone was kept by him in a cloth pullanda and sealed the same with the seal of PC and seized the pullanda U/s.102 Cr.P.C. vide Ex.PW37/C. He has also deposed that he handed over the seal to PSI Rajesh and recorded the statement of public witnesses and thereafter they returned back to Police Station and deposited all the seized articles in the Malkhana. The witness has further deposed that he recorded the statement of police witnesses and on the next day accused were sent to Judicial Custody. He has proved having collected the postmortem report, PCR forms and obtained the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 75 opinion about the injuries caused by the knife. According to the witness, during his investigations TIP proceedings of the broken pieces of mobile phone was conducted and the factory owner Madan Pal correctly identified the pieces of mobile phone. He has also testified that during his investigations exhibits of this case were sent to FSL Delhi through Ct. Anil and the pullanda of mobile was sent to FSL through Ct. Ram Phal. The witness has proved having obtained the CDRs of the mobiles recovered from the accused Lal Babu and Sunder Paswan during their personal search. He has further deposed that he got prepared the scaled site plan and collected the photographs from the photographers and also collected the CD of the video film. According to the witness, the proceedings under Section 82/83 Cr.P.C. were issued against the accused Devender @ Bedu. He has further deposed that on 25.06.2011 he received a secret information that accused Devender @ Bedu was coming at his jhuggi through outer ring road area at about 3.00 PM. The witness has also deposed that he included Ct. Doodh Nath, Ct. Magan Lal and Ct. Devender in the raiding team and reached at Haiderpur Red Light at about 2.15 PM and took position at service lane near Toyota Showroom and also called Ct. Ajay Pal from the nearby beat. According to him, at about 3.45PM accused Devender @ Bedu was found coming from the outer ring road area and was apprehended by them and during interrogation he confessed about his involvement in this case. He has proved having arrested the accused Devender vide Ex.PW41/A and his personal search was taken vide Ex.PW41/B and his St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 76 disclosure statement was recorded vide Ex.PW41/C. The witness has further proved that accused Devender also pointed out the place of incident vide Ex.PW41/E and the place where they have robbed mobile phone and gave a knife blows to another person after the incident of this case. He has testified that at the instance of the accused Devender one tiffin bag containing tiffin box of the deceased was recovered near the stone under the flyover and some blood stains were found on the tiffin bag. The witness has also deposed that accused Devender disclosed that he had thrown the tiffin bag at that place after committing the incident and the tiffin bag was belonging to the deceased. According to him, he checked the same and sealed the same with the seal of PC and seized vide seizure memo vide Ex.PW41/D and after medical examination of the accused he was kept in the lock up and he deposited the seized articles in the Malkhana and recorded statements of witnesses. The witness has further testified that investigation was complete against the accused persons Lal Babu and Sunder Paswan, hence he submitted the charge sheet both the accused Lal Babu and Sunder Paswan on 01.07.2011. He has also deposed that on 01.07.2011 the Test Identification Proceedings in respect of Tiffin bag was conducted and Hanuman correctly identified the tiffin bag as belonging to deceased Buddhi Lal. He has proved having obtained the copy of TIP proceedings and deposed that during his further investigation the pullanda of tiffin was sent to FSL Rohini, Delhi through HC Mukesh. He has further deposed that he collected all FSL results and recorded the statement of St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 77 witnesses and after completion of investigations he submitted the supplementary charge sheet against the accused Devender @ Bedu. (85) He has correctly identified the accused Sunder Paswan, Lal Babu and Devender in the court. He has also identified the case property i.e. three pieces of one mobile phone make Spice as the same which was recovered at the instance of accused Lal Babu with the help of Gatam Kumar, which are collectively Ex.P1; one tiffin bag and tiffin as the same which were recovered at the instance of accused Devender @ Bedu, which bag is Ex.P2; the tiffin box is Ex.P3 and one buttondar knife as the same which was recovered from the possession of accused Sunder Paswan which is Ex.P4.

(86) In his crossexamination the witness has deposed that on 25.06.2011 they proceeded for the Police Station at 9:35AM and departure entry was made in this regard but he does not remember the DD Number. According to the witness he was on official motorcycle and other police officials were also on motorcycles. He does not remember whether the motorcycles of the other police officials were government or private. The witness has testified that after receiving the secret information he did not inform police station and the higher police officers. He has admitted that the secret informer only gave secret information to him but did not accompany them and they reached at the spot at about 2.15PM. He is unable to tell the names or the description of the public persons who were asked to join the investigations nor any notice was given to them. The St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 78 witness has further deposed that they all were in police uniform and took their positions behind the trees situated at the spot. He has testified that no public persons gathered at the spot at the time of apprehension of the accused. He has admitted that he did not obtain the signature of any public persons while the pointing out memo was prepared. He has further deposed that the recovery was effected at the instance of accused Devender at about 6.30 PM. According to him, he did not prepare the site plan of the place of recovery of tiffin. He has admitted that the place of recovery of tiffin is an open place and the same is accessible to general public. The witness has further deposed that he did not obtain the chance prints from the bag and the tiffin box. He has admitted that the tiffins, like tiffin recovered at the instance of the accused Devender are easily available in the market. The witness has also deposed that they came back at the police station after 9.30PM and deposited the case property in the Malkhana immediately. He has further deposed that he handed over his seal to Ct. Doodh Nath at the time of of seizing of the case property but he did not prepare any memo about handing over the seal to Ct. Doodh Nath who returned his seal to him on the next day. According to the witness, he did not record statement of Zahid nor joined him in the investigation of this case and has voluntarily added that he examined the Security Incharge Goswami who gave the SIM to Amit Giri and the Amit Giri made call to the PCR and the mobile phone number (SIM) was purchased from the shop of Zahid. He has admitted that PCR Form Ex.PW11/A bear the name of St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 79 Informant as Zahid. He has denied the suggestion that accused Devender was shown to the witness when he was in police custody or that the tiffin was planted upon the accused or that nothing was recovered from him. The witness has also denied the suggestion that he did not investigate the case in a fair manner or that accused Devender has been falsely implicated in this case due his previous involvements. He has further denied the suggestion that nothing was recovered from the possession of accused Sunder Paswan or that the knife was planted on the accused Sunder Paswan. According to him, the pieces of spice phone Ex.P1 were from the Naali with water and depth of Nalli about 1 ½ feet. He has denied the suggestion that accused Sunder Paswan and Lal Babu have been falsely implicated in the present case.

STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:

(87) After completion of prosecution evidence the statements of the accused were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to them which they have denied.

The accused Sunder Paswan has stated that he is innocent and has been falsely implicated by the police to work out the present case at the instance of the police. According to him, he has nothing to do with the alleged incident and nothing was recovered from his possession or at his instance. He has denied having made any disclosure statement. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 80 (88) The accused Devender @ Bedu has stated that he is innocent and has been falsely implicated by the police to work out the present case at the instance of the police. According to him, he has nothing to do with the alleged incident and nothing was recovered from his possession or at his instance. He has denied having made any disclosure statement or having pointed out any place to the police.

(89) Similarly the accused Sanjay @ Lal Babu has stated that he is innocent and has been falsely implicated by the police to work out the present case at the instance of the police. According to him, he has nothing to do with the alleged incident and nothing was recovered from his possession or at his instance. He has denied having made any disclosure statement.

(90) The accused have examined four witnesses in their defence. DW1 Siya Ram is the employer of the accused Sunder Paswan who has deposed that the accused Sunder was his driver for the last one year before the alleged incident. According to him, on 06.04.2011 at about 99:30 PM Sunder Paswan left the day job for his vehicle and went back to his home. He has further deposed that some of his relatives urgently needed to visit New Delhi Railway station and hence he went to the house of Sunder Paswan for hiring the car. According to the witness, when he reached the house of Sunder Paswan, three police officials were present there and he asked them regarding the incident but none replied for the same. He has also deposed that he took the vehicle and drove the same of his own and St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 81 went to New Delhi Railway Station along with his relatives. The witness has further deposed that later on he came to know from the parents of the accused that he has been arrested in some false case by the police of police station Shalimar Bagh. According to him, accused Sunder Paswan bear very good character and is not involved in any fight to the best of his knowledge. He has also deposed that he has deposed in favour of accused Sunder Paswan as he has been falsely implicated in this case. (91) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he is doing the work of fixing tiles. According to the witness, he is a original resident of district Murena, MP and is residing in a jhuggi constructed on a government land and owned an OMNI van. He has testified that he had purchased a second hand vehicle/ OMNI Van. He is unable to tell the name of the original owner, from whom he had purchased the van. The witness has testified that he is not accessed to income tax and hence he has not disclosed to any government agency regarding the purchase of the vehicle. He has further deposed that he is earning about 89 thousand per month from fixing of tiles. The witness has also deposed that he used to pay Rs.7,000/ per month as salary to the accused Sunder Paswan who is known to him ever since he has been staying at Delhi since he used to reside in his neighbourhood. He has also deposed that accused never worked with him and was only plying his vehicle for one year but there is no documentary record of employment of Sunder Paswan with him nor there is any documentary record regarding payment of salary St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 82 and has voluntarily added that as and when he demanded money, he gave it to him. He has denied the suggestion that he along with Sunder Paswan were into illegal activities and it is for this reason that he has no documentary record regarding the purchase of the vehicle or regarding the employment of Sunder Paswan with him or that it is for this reason that he is trying to protect him from penal consequences in this case. The witness has further deposed that he was aware of the arrest of accused Sunder Paswan on the date he was arrested by the police. The witness has testified that he did not approach any senior police officer nor he informed any court of law regarding the innocence and false implication of accused Sunder Paswan. He has denied the suggestion that he had come to the court on the asking of the accused only to save him from the penal consequences. (92) DW2 Lallan Paswan a rickshaw puller by profession is the neighbour of Lal Babu who has deposed that he does not remember the exact date of incident but it was 8 PM when four police officials were present at the house of Lal Babu. According to the witness, he was in a shop for purchasing ration and he saw police official dragging Lal Babu him from his house and on asking the police officials told him that they had some piece of work with the accused. He has deposed that thereafter he is not aware where the police official took Lal Babu. The witness has further deposed that Lal Babu is a labour and belongs to poor family and working in a masala factory. According to the witness, he knew Lal Babu for the last eightten years and he has clean antecedents and not involved in any St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 83 criminal case.

(93) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he is an original resident of Samastipur, Bihar and Lal Babu is also resident of the same area but he is not related to him. He is unable to tell the date of the incident. The witness has also deposed that he is totally illiterate. According to him, four persons who had taken Lal Babu were not in uniform and he came to know that they were police persons because other persons were saying so. He has testified that he did not ask for identity card, nor inquired about the names of any of four persons. He has also deposed that he had asked one of these four persons, where they were taking Lal Babu and the said person said "kam se le ja raha hun". He has admitted that none of these persons told him that they were taking Lal Babu to the police station and that it is by his assumption that he presumed that he was taken to police station. He has denied the suggestion that there was no police vehicle and has voluntarily deposed that already four more police officials were sitting in the vehicle. (94) On a Court Question the witness has deposed that he is unable to tell the make of the vehicle. According to the witness, he did not go to the police station to make any inquiries regarding Lal Babu, nor he made a 100 number call to inform that four persons had taken away Lal Babu. He has testified that he came to know after about 89 days that Lal Babu had been booked in the present case but he did not go to the SHO or to any senior officers nor did he came to the court to inform that Lal Babu had St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 84 been falsely implicated in the present case. He has admitted that it is not within his personal knowledge that what Lal Babu do in the day or in the night because he reside separately. He has also admitted that he is not aware of the facts of the present case or if Lal Babu is ever involved in the present case and has voluntarily added that he only wanted to say that in his observations Lal Babu had a good moral character.

(95) On a Court Question the witness has deposed that the mother of Lal Babu informed him of the date and he had come to the Court for this reason. During the examination of the witness the Court has been informed that Lal Babu is involved in another dacoity case i.e. FIR No. 141/2011, PS S. P. Badli and this witness i.e. Lallan Paswan has deposed for Lal Babu in the said case as well.

(96) He has denied the suggestion that on account of close relations with Lal Babu he has deposed falsely only to save him from penal consequences.

(97) DW3 Mrs. Lallan Devi is the mother of accused Lal Babu and has deposed that her son used to work before the incident at Masala factory, Pitampura for the last fourfive years. According to the witness, she used to work as a housemaid in near by locality and returned at her home at 6:30 PM from her work. She has deposed that her son used to come from his duties at about 7 PM. The witness has further deposed that she went to the market for buying vegetables and came to know that there was a huge crowd in front of her house on which she asked her neighbour regarding the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 85 crowd when she came to know that her son has been picked up by the police officials of police station Shalimar Bagh and told her that her son would come back within half an hour from the police station but her son did not return back. According to her, therefore she along with her husband went to the police station to inquire about her son on which police officials told her to put the signatures but police official did not inform them regarding the case as well as regarding the arrest of her son. The witness has deposed that she returned back to her house. According to the witness her son is innocent and has been falsely implicated. (98) In her crossexamination the witness has deposed that she is working as a maid in the kothies at Pitampura and used to leave her house at 6 AM and returned by 67PM. She has deposed that he has four children and Lal Babu is her eldest child who is totally illiterate. She does not recollect the date when the police had come and was not present when her son was taken from her house. According to the witness, the incident was of night and therefore her son was in the jhuggi. He has admitted that she is not aware who took her son and has voluntarily explained that it was public persons and neighbours who told her that they were police persons. The witness has also deposed that she had gone to police station Shalimar Bagh but her son was not there. According to the witness, she did not make any 100 number call when she did not find jer son in the police station. She has further deposed that she did not go to any senior police officer to complaint that her son had been illegally lifted and detained nor did she St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 86 make any complaint to any other authority including the court regarding lifting of her son. She has further deposed that at present there is no other case against her son and has voluntarily deposed that he has already been acquitted in the other case of robbery/daicoity. She is not known to Sunder Paswan and is not aware if Sunder Paswan is known to her son Lal Babu. (99) DW4 Sandeep Kumar has deposed that on 25.06.2011 at about 66:30 PM fourfive police officials from police station Shalimar Bagh had come to the house of accused Devender and took the accused with them. According to the witness, on inquiry they told to the parents of accused Devender that SHO of Police Station Shalimar Bagh had to made inquiries from Devender and he would be freed after inquiry. He has deposed that on the next day he came to know that accused Devender was implicated in a false case.

(100) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he has studied till class 8th and is a driver by profession and has voluntarily added that he is on contract with Benchner Company and used to ply the vehicle of Indraprastha Gas Pvt. Ld. i.e. make ECCO. According to the witness he used to leave his house at 8AM and come back by 6 PM. He has testified that he is residing at the aforementioned address for the last 1516 years and Devender is his neighbour who is residing about two streets away. He has admitted that house of Devender house is not visible from his house. He has denied the suggestion that he did not witness what he had deposed in his examination St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 87 in chief and has voluntarily deposed that when the police officials had parked their vehicle and inquired about the house of Devender, he followed them. The witness has also deposed that one or two persons were in uniform, others were in civil. He is unable to tell the names of the officials who were in uniform. He has further deposed that he came to know on the very next day that the accused had been arrested in the present case. He has admitted that he is unable to tell about the correctness or falsity of the incident connected with regard to which accused Devender had arrested. He is also unable to tell what day of the week was 25.06.2011 when the accused Devender was arrested and states that he remember the date of 25.06.2011 because Devender was taken on that day. According to the witness, he did not note down separately the date anywhere and he only remember the same of his own. He is unable to tell the date to the court on which the Holi and Deepawali fell in the year 2011. The witness has also deposed that he remember the date of 25.06.2011 because on 26.06.2011, he had his ticket and had gone back to his native village but he is unable to produce his ticket. According to him, it is the bhabhi of accused Devender who informed him about the details of the case and date on which he had come to depose in the court. The witness has also deposed that he is only known to Bhabhi of the accused Devender who is a widow and is residing in his premises on rent and it is on her asking that he had come to the court. According to the witness, he did not make any 100 number call when he came to know that accused Devender was lifted by the police nor he did he St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 88 go to any senior police officer to complain that Devender had been illegally lifted and detained nor he made any complaint to any other authority including the court regarding lifting of Devender. He has denied the suggestion that he has deposed falsely at the instance of the family of accused Devender only to save him from penal consequences. FINDINGS:

(101) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the material on record and the testimonies of the various witnesses.

I first propose to deal with all the averments made by the various witnesses so examined by the prosecution individually in a tabulated form as under

and later on comprehensively.

Sr. Name & details of the Details of deposition No. witness

1. Narender Kumar He is a private photographer who has deposed on the (PW21) following aspects:

1. That he was residing at House No. B1, Main Road Shalimar Bagh for the last 2526 years where he is running a photo studio under the name and style of Ritu Digital Studios.

2. That on 08.04.2011 at about 5:00 PM, he received an information from police station Shalimar Bagh to reach at Nehru Camp Jhuggi Cluster, Haiderpur where he was asked to videograph the proceedings.

3. That the accused who was in police custody led the police party to a Nala/ ditch from St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 89 where he got recovered a mobile in a broken condition and he videographed the entire proceedings CD of which is Ex.PW21/A. The witness correctly identified the accused Lal Babu by pointing out towards him as the person who had got recovered the mobile phone from the Nala.

2. Hemlata Tiwari (PW22) She has deposed on the following aspects:

1. That in the year 2011 her husband Anant Tiwari was working in Idea while she was working in the SDS Company in Haiderpur as a packer since 02.02.2011.

2. That she was having a mobile phone bearing no. 9990607478 which was registered in the name of her husband and in the month of March 2011, her mobile phone was broken down.

3. That the accused Sanjay whom the witness has correctly identified in the Court was working in the same company had met her.

4. That Sanjay @ Lal Babu was having two phones at that time and she asked him for purchase of one mobile phone on which Sanjay gave one mobile phone to her for Rs.300/ and she told him that she would pay Rs.300/ later on.

5. That she inserted her SIM Card bearing no.

9990607478 in the said mobile phone and used the same for about two days.

6. That after two days accused Sanjay met her in the factory and demanded the mobile phone from her on which she returned the same after removing her SIM card from the said mobile phone and after one day, the accused Sanjay told her that the mobile phone had broken.

3. Gautam (PW23) He is a neighbour of the accused Lal Babu @ Sanjay and has deposed on the following aspects:

1. That the jhuggi of Lal Babu is adjoining to his jhuggi and Lal Babu is known to him by his St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 90 mama / maternal uncle Shambhu for about two months prior to the incident.

2. That on 08.04.2011 the police came to him and make inquiries on which he told them that about four days ago Lal Babu had come to his jhuggi and gave him a black colored mobile which Lal Babu broke into three pieces and asked him to throw in the Nala adjoining the room where they were staying.

3. That the police had come to his jhuggi along with Lal Babu and the photographer on which he had shown them the place / Nala where he had thrown the mobile which was given to him by Lal Babu.

4. That he got the mobile recovered after which he was interrogated by the police and he told them that he had committed a mistake by throwing the mobile in the Nala and by not asking the Lal Babu why he had broken the same.

5. That the police prepared a pointing out and recovery memo of the broken mobile phone which is Ex.PW23/A. He has correctly identified the accused Lal Babu in the Court and also identified the black color mobile phone in two pieces (S525) and the third piece is a battery of SPICE type SIB04, Capacity DC3.7B 700mAh written on the same as the same as thrown by him in the Nala, all the pieces of the mobile phone are Ex.P1 (collectively).

4. Madan Pal (PW24) He is the employer of the deceased who has deposed on the following aspects:

1. That he is running a brush factory at Bhalswa Dairy for the last seveneight years.

2. That Buddhi Lal was employed in his brush factory at Bhalswa Dairy for the last fourfive years and his duty time was 9AM to 9:30 PM.

3. That on 30.03.2011 Buddhi Lal left his factory at about 8:00 PM after completing his work St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 91 but did not come for work for the next two days on which he sent his worker Jamuna Parshad to the jhuggi cluster at Shalimar Bagh.

4. That on his return Jamuna Parshad informed him that when he went to the jhuggi of Buddhi Lal, he met his relative by the name of Hanuman who informed him that Buddhi Lal had not returned from his work from 30.03.2011 onwards nor he had any information regarding him.

5. That he told Jamuna Parshad to inform Hanuman that Buddhi Lal had left the factory as usual and was not reporting and therefore he should make inquiries to ascertain his whereabouts and also find out if he might have gone to his village.

6. That on 05.04.2011 he received a call from SHO Police Station Shalimar Bagh who was making inquiries regarding Buddhi Lal on which he informed the SHO that he used to pay Rs.4,500/ to Buddhi Lal who had not reported for duties from 30.03.2011 onwards.

7. That he was informed by the SHO that Buddhi Lal had been murdered some where in Shalimar Bagh.

8. That he told the SHO that Buddhi Lal was using a mobile phone, make SPICE model No. S525 without camera of black color which he (witness) was previously using and later Buddhi Lal purchased the same from him for Rs.700/ and he had given the box of the mobile phone along with various accessories to Buddhi Lal at that time.

He has identified the black color mobile phone in two pieces (S525) and the third piece is a battery of SPICE type SIB04, Capacity DC3.7B 700mAh written on the same which pieces of the mobile phone are Ex.P1 (collectively).

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 92

5. Rajiv Kumar (PW25) He is an eye witness to the incident who has deposed as under:

1. That he is doing the property dealing in the area of Rohini and has an office at Flat no. 100, Pkt.13, Sector 24, Rohini, Delhi.

2. That on 30.03.2011 at about 10.00PM he alighted from the bus at bus stand of Badli as he was coming from his office after which he was going to his house on foot.

3. That when he reached on service lane near C&D Block, Shalimar Bagh, Delhi and reached near the gate of their residential society on Outer Ring Road, he saw three persons having caught hold of one person.

4. That firstly he was under the impression that perhaps they were friends but when he came to more near to them he saw that the above said three persons had forced that person to lie on the ground (neechey gira diya tha) and one persons was holding a knife in his hand and another person was holding a long knife like a Kirpan and they had caught hold that person who was lying on the ground.

5. That he shouted and raised an alarm on which two guards of their society who were having dandas reached there after hearing the noise and he told them to save the victim.

6. That the names of the guards were Amit Giri and Farakat Ali.

7. That when both the guards reached near the assailants, they challenged the guards with their knives on which both the guards ran away from there.

8. That he did not try to save the victim as he was ill due to Psoriasis (skin disease).

9. That he immediately called the President of Society namely Satish Singhal who reached there and they both reached the gate of their society and saw that victim was lying at the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 93 distance of 3040 feet in an injured condition.

10. That meanwhile PCR police and Beat Constable reached there and took away the injured from there.

He has correctly identified accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu as the assailants who caused the aforesaid incident. He has identified accused Sunder Paswan who was holding a knife in his hand at the time of incident; accused Devender @ Bedu who was holding a long knife look like Kirpan at the time of incident.

6. Hanuman (PW26) He is the cousin brother of the deceased and was residing along with the deceased. He has deposed on the following aspects:

1. That he is residing at a House No.10 in front of Hanuman Mandir Wali Gali, village Haiderpur since the year 1983 and at the time of the incident i.e. on 30.03.2011 he was working in a factory at Transformer Wali Gali, Haiderpur in the rubber factory of Harpal where the rubber of pressure cooker was being manufactured.

2. That he was residing in the jhuggi of his brother Buddhi Lal who was the son of his mama at jhuggi No.388, Sanjay Camp, Haiderpur.

3. That he is residing with his maternal family and therefore he and Buddhi Lal belonged to the same village.

4. That on 30.03.2011 he had left duty at 8AM and Buddhi Lal normally went for duty after he left.

5. That he returned home at about 10:00 PM but Buddhi Lal had not returned after which he waited for him (Buddhi Lal) for sometime and thereafter had his dinner and went for sleep.

6. That on the next day he also waited for Buddhi Lal but he did not return and he thought that St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 94 Buddhi Lal must have gone to the house of his sala / brother in law at Alipur and therefore he did not find anything unusual when Buddhi Lal did not return.

7. That on 01.04.2011 one person came from the factory of Buddhi Lal who was making inquiries about Buddhi Lal stating that he had been sent by the owner that Buddhi Lal was not coming to the factory and to find out where he was, on which he informed him that Buddhi Lal had not come back from the factory since 30.03.2011.

8. That he waited for Buddhi Lal for another couple of days and in the meanwhile he made inquiries from other relatives including Babloo who is their first cousin and also called up the village and spoke to the children of Buddhi Lal if he had come there but he was told by the daughter of Buddhi Lal that he had not come to the village.

9. That when he came to know of the above, he called the sala / brother in law of Buddhi Lal and Babloo and informed them that Buddhi Lal was not traceable and after due consultation with them, they decided that they would lodge a complaint to the police.

10. That while he was going to the police station and came out of the jhuggi cluster, he met one lady who told him that the police were roaming in the area with a poster of a dead body which they were pasting in the area for ascertaining his identity.

11. That the said lady also told him that the poster had been pasted on the wall of the jhuggi of Bindia on which they went towards that side and found there were no such poster since somebody had torn of the same.

12. That on this he asked Bindia where was the poster who told him that somebody had torn St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 95 the poster but she could identify the dead body shown in the poster which had been pasted on the wall of her jhuggi on which he (Hanuman) went back to his jhuggi and brought back with the photograph of Buddhi Lal which he showed to Bindia who identified the photograph of Buddhi Lal as the same person whose dead body photograph was pointed on the poster.

13. That thereafter they went to the police station Shalimar Bagh where on the main gate of the Police Station he saw the poster showing the body of his brother and he identified him to be Buddhi Lal.

14. That he went inside the police station and told the officers present there that the poster belonged to his first cousin Buddhi Lal on which he was produced before the SHO who thereafter interrogated him.

15. That he informed the SHO that Buddhi Lal had a black colored mobile phone which he had purchased from his owner / malik of the factory and also used to carry a tiffin bag which he could identify.

16. That on the next day he was called to BJRM hospital where he identified the dead body of his brother vide memo Ex.PW26/A. The said witness has identified one black colored mobile phone in two pieces (S525) and the third piece was a battery of SPICE type SIB04, Capacity DC3.7B 700mAh written on the same as belonging to his brother Buddhi Lal, which pieces of the mobile phone are Ex.P1 (collectively); one cloth thaila bearing the words PREIMER SEEDS the No.1 multicut bajra mentioned on the same with a steel tiffin box (of two boxes) as the one which his brother Buddhi Lal used to take to the factory, which thaila is Ex.P2 and the tiffin box is Ex.P3.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 96

7. Babloo (PW27) He is the son of deceased Buddhi Lal and has deposed on the following aspects:

1. That deceased Buddhi Lal was son of his Aunt (Mausi) who was working in the factory owned by one Madan Lal and was was residing with Hanuman.

2. That on 05.04.2011 he received a telephone call from Hanuman at about 11.00AM who enquired about Buddhi as he was not coming at his residence.

3. That he immediately called Kanhayya Lal, brother in law (Saala) of Buddhi Lal and inquired about Buddhi Lal.

4. That in evening time he alognwith Kanhayya Lal reached at the jhuggi No.388, Sanjay Camp Haiderpur where Buddhi Lal was residing and met Hanuman there but Buddhi Lal was not found by them there.

5. That females of the area informed them that some police officials were pasting the posters of a person in the area on which he along with Kanhayya Lal and Hanuman went to Police Station Salimar Bagh and saw the poster of Buddhi Lal outside the police station and met police officials there.

6. That on the next day they went to BJRM Hospital where they identified the dead body of Buddhi Lal.

7. That they used to contact Buddhi Lal on mobile phone number 9015968416 which was provided by him (Babloo) to Buddhi Lal as his SIM was defective.

8. That this mobile number was in his (witness's) name and he tried to contact on this mobile phone but the same was found as "switch off".

9. That deceased Buddhi Lal was using this mobile SIM Card on the mobile phone provided by his owner namely Madan Pal.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 97

8. Kanhayya Lal (PW28) He is the brother in law (Sala) of the deceased Buddhi Lal who as deposed on the following aspects:

1. That deceased Buddhi Lal was his brother in law (Jija) who was residing in Delhi in Jhuggi no.388, Sanjay Camp Haiderpur with Hanuman.

2. That on 05.04.2011 Babloo informed him on mobile phone that Buddhi Lal was not traceable as he had not returned to his residence after which they made a phone call to Madan Lal who informed them that Buddhi Lal came to his factory on 30.03.2011 and went away from there in the evening time after completing his work and thereafter he had not come to the factory for work.

3. That on 05.04.2011 in the evening time he along with Babloo reached at Sanjay Camp where Hanuman was present and the females of the area told them that police persons were pasting the photographs of a deceased person on which they went to Police Station Shalimar Bagh and saw the poster outside the police station Shalimar Bagh containing the photograph of the deceased Buddhi Lal.

4. That on the next day he identified the dead body Buddhi Lal at BJRM Hospital Mortuary, Delhi and his statement was recorded by the police in this respect which is Ex.PW28/A.

9. Farakat Ali (PW29) He is the Security Guard posted at C & D Block, Shalimar Bagh and is stated to be an eye witness. He has deposed on the following aspects:

1. That on the intervening night of 3031.03.2011 he was on duty from 8PM to 8AM at the out gate.

2. That he was sitting on the gate and the other chowkidar/guard Amit Giri was on round duty.

3. That at about 10:00 PM Amit Giri was coming towards the out gate from gate No.3 in St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 98 the meanwhile they heard a lot of "shor sharaba"/loud voices coming from outside and they also saw some persons coming from the Rohini side which included one Rajeev resident of C&D Block.

4. That they called them and told that some boys were doing marpitai on the road and that they should stop them.

5. That he saw those boys running to their side and passed them when one boy was carrying a knife with which he had inflicted injuries to the person which knife while running away he brandished the same towards him ("mujhe chako dikhaya tha").

6. That in the meantime Amit Giri had also reached the spot on which they called 100 number after which the police shifted the injured to the hospital by a TSR.

7. That the boy who was carrying a knife in his hand was not very tall and was slightly taller than him. (It has been observed by this Court that the witness was around 5 feet 4 inches to 5 feet 5 inches and stated that the said accused was about 24 inches taller to him.

8. That he had seen two persons and only one of them were having the knife.

9. That when he and Amit Giri were on duty and Amit Giri was walking towards him, they heard loud voices on which both of them took their lathies and went outside where they found that on the right side on the gate near the stack of sand three boys were beating a person and while they were still watching they stabbed him.

10. That when he and Amit Giri exhorted the said boys, all three of them out of whom two were carrying knives ran towards him.

11. That he and Amit Giri got extremely scared and ran back to their guard booth.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 99

12. That beat constable Ram Phal came to the spot where the injured was lying on the patri around 3040 feet away from the place of the stabbing and shifted the injured to the hospital in a three wheeler scooter.

13. That out of the three boys, one boy who was carrying a knife had tied his handkerchief like a patka on his head and was around 5 feet and 5 inches in height.

14. That the second boy was having a knife in his hand was short stature but he has denied having told the police that he was of brown color (bhura rang).

15. That the third accused was of dusky complexion (sanwla rang) and was around 5 feet 5 inches in height and all the three accused were of average built.

16. That on his pointing out the site plan was prepared showing the point where the incident took place near the stack of sand and also the footpath where the victim was lying.

The witness was declared hostile on the aspect of identity of the accused. He has however admitted that on 07.04.2011 he and Amit had joined the investigations at 12:30 AM (midnight) and has admitted his signatures on the arrest memo of Sunder Paswan which is Ex.PW29/PX2; his personal search which is Ex.PW29/PX3; arrest memo of Lal Babu @ Sanjay which is Ex.PW29/PX4 and his personal search memo which is Ex.PW29/PX5.

10 Amit Giri (PW30) He is also an eye witness to the incident who has deposed on the following aspects:

1. That on 30.03.2011 he was on duty as a Security Guard at C & D Block, Shalimar Bagh at Gate No.3.

2. That Farakat Ali was also on duty with him at gate No.4 and at about 10:00 PM one person resident of C & D Block society was coming St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 100 towards the society area and Farakat Ali called him and thereafter he along with Farakat Ali reached at gate No. 4 with their dandas.

3. That they did not find any person there except the injured who had been stabbed.

4. That on this he immediately dialed 100 number from his mobile No. 9910378590 which SIM was provided by his owner Ganesh Goswami.

5. According to him, police came there and shifted the injured to the hospital.

This witness is hostile only on the aspect of identity of the accused.

11 Ganesh Goswami He is running a security agency under the name and (PW31) style of Rock Security and used to provide security guards to residential colony, Industrial Areas etc. on contract basis. He has deposed on the following aspects:

1. That he had provided four guards at C&D Block Shalimar Bagh of whom Farakat Ali and Amit Giri were posted at Gate No.3 and were on round between gate no.3 and 4 on 30.03.2011.

2. That a register is being maintained at Gate no.1 with regard to the attendance of the guards which register belong to their agency.

3. That he had given his SIM bearing No. 9910378590 to Amit Giri for official use which SIM he had obtained from Zahid Telecome on his address and it was the same SIM by which the call was made at 100 by Amit Giri.

4. That the Duty register of his office with regard to the duties of Amit Giri and Farakat Ali on 30.03.2011 at night time at gate no.3, C&D Block, Shalimar Bagh, the relevant entry in register is Ex.PW31/A. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 101

12 Satish Singhal (PW32) He was the President of RWA, C & D Block, Shalimar Bagh on 30.3.2011 and has deposed on the following aspects:

1. That on 30.3.2011 at about 10:15 PM he was present at his flat when he had received a call on his mobile phone from Sh. Rajeev Kumar, who was also residing in their society in D Block to the effect that one person had been stabbed by three persons outside outer gate of C&D Block and he should reach there.

2. That on receipt of this phone call, he immediately reached the outer gate of C&D Block and came to know that the Beat Constable of the area namely Ct. Ram Phal had taken the injured to the hospital in a TSR.

3. That at that time Rajeev Kumar who had made a phone call to him and two security guards of their colony namely Amit Giri and Farakat Ali were also present there.

4. That Rajeev Kumar had told him that he was coming towards C&D Block on foot from Badli village bus stand through service lane and at about 10 PM when he reached near outer gate of C&D block, three persons were scuffling with a person who was crying.

5. That Rajeev Kumar also told him that out of those three persons, one was armed with knife and one person who had tied his head with the help of handkerchief was also having a long size knife and on seeing the same, he called the security guards Amit Giri and Farakat Ali who were standing near the booth situated inside the outer gate on ring road and after some time both the guards who were armed with lathies had come there and on seeing those guards all those three boys ran towards the security guards who due to fear ran back.

6. That same facts were revealed to him by their security guards Amit Giri and Farakat Ali and St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 102 Amit Giri had also told him that he had informed the police on 100 number and PCR van had come there.

7. That after some time local police officials of police station also reached there.

8. That on 10.04.2011 Inspector Puran Singh made inquiries from him and also recorded his statement to whom he had stated the aforesaid facts.

13 Ramesh (PW33) He is a victim of another incident of robbery committed by the accused persons. He has deosed on the following aspects:

1. That he used to sell vegetables on Rehri and on 30th of month he does not recollect, about a year ago, may be in January, when there was an India Pakistan match, he was going to his duty.

2. That when he went to ease himself on the way by crossing the Railway Line at the Bypass Badli, three persons came from behind, two person pushed him from behind on which he fell down and the third person put the knife on his throat and inflicted injuries and snatched his mobile and Rs.3,500/ after which all three assailants ran away.

3. That during this process, he had fallen down into the Nala and he somehow managed to save himself and came up and took his rehri and reached his house from where his family members took him to the BJRM Hospital.

4. That he had seen all the three boys who were of the age group of 2526 years of average built like him, one boy was of dusky complexion whereas other two were fair.

5. That the boy who had inflicted knife upon him was of fair complexion and the boy who had snatched his mobile phone was of dusky complexion and the third boy who had removed his cash was of clear complexion.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 103

6. He has identified the accused Devender @ Bedu as the person with a dusky complexion who had inflicted knife blows to him; the accused Sanjay @ Lal Babu as the person who had snatched his mobile and Sunder Paswan as the person who had removed the cash from his pocket.

14 Ashok Aggarwal This witness has deposed on the following aspects:

(PW35) 1. That he is doing the business of spices and is running a company under the name and style of SDS from 645, Mahavira Gali also called Double Transformer Wali Gali, Haiderpur from last fourfive years.

2. That around seven persons are working in his factory.

3. That Sanjay @ Lal Babu resident of Jhuggies at Haiderpur had worked with him for about one month as a packer and Hem Lata Tiwari is also a worker of his factory for the last about one year.

4. That Lal Babu had taken an advance of Rs.

5000/ from him stating that it should be adjusted in the salary of the next month and since Lal Babu had worked for one month his monthly salary of Rs.4000/ were with them and Rs.1000/ was to be adjusted in the salary of succeeding next month.

5. That after some days they came to know that he (Lal Babu) has been involved in a criminal case.

He has correctly identified the accused Sanjay @ Lal Babu.

Medical witnesses 15 Dr. Bhim Singh (PW13) He is the Autopsy Surgeon who has proved having conducted the postmortem examination on the dead body of deceased Buddhi Lal vide his report Ex.PW13/A according to which there were following injuries on the body of the deceased:

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 104

1. Incised Stab wound (3.5 x 0.5) cm over left chest 3 cm above left nipple and 13 cm below left shoulder.

2. Incised stab wound one end acute and one blunt (3.5 x 0.5) cm x muscle deep present over right side of chest 5 cm lateral to right nipple.

3. Incised stab wound (3.5 x 0.5) cm, organ deep, present over right side of chest over posterior axillary line 9 cm below right nipple.

The witness has proved having opined that death in the present case was due to septicemia consequent upon stab wound over chest via injury no.3, all the injuries were antemortem, Injury No. 1, 2 and 3 were caused by single sharp edged weapon and Injury No.3 is sufficient to cause death in ordinary cause of nature.

He has also proved having examined one single edged silver colour metallic knife produced before him by the investigating Officer; having prepared the sketch of the same, which is Ex.PW13/C and having given his opinion, which is Ex.PW13/D according to which the injuries no. 1 to 3 as mentioned in the postmortem could be caused by the above examined weapon.

16 Dr. Rajesh Satija This witness has proved the MLC of the injured who (PW17) was brought to BJRM Hospital by Const. Ramphal with a history of physical assault, which MLC is Ex.PW17/A according to which two injuries were noticed on the body of the injured i.e. first stab injury in the right chest wall laterally below arm pit (3 x 1 cm) and second bruise mark with abrasion on right chest wall front near sternum (3 x 2 cm).

17 Dr. Ashutosh Mishra This witness has proved that on 31.03.2011 he (PW18) examined an unknown patient at Sushruta Trauma Center with alleged history of assault by hard and sharp object as the patient was referred from BJRM St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 105 hospital. He has also proved that on examination and investigations finding was hypodenc lesion present in high parital and left paritooccipital region query non hemorrhagic contusion, USG abdomen finding was normal. The witness has further proved that final diagnosis was right stab injury chest with right haemothorax with traumatic brain injury and the death summary in this regard is Ex.PW18/A. Forensic Evidence 18 Dr. Virender Singh This witness has proved that on 10.06.2011 one (PW19) (Senior mobile phone make SPICE model No. S525 in three Scientific Officer broken pieces was received at their laboratory in (Documents), FSL, sealed condition which was marked by him as Q1 and Rohini the same was returned as unexamined as it has not been possible for him to examine the exhibits forensically. He has proved his detailed report in this regard which is Ex.PW19/A according to which the suspect storage media vide marked Q1 received in broken condition and exists into three pieces and as such it has not been possible to examine the exhibit forensically using Universal Forensic Examination Device of M/s. Cellebrite Mobile Synchronization Ltd., Israel.

19. Indresh Kumar Mishra This witness has proved the biological report and (PW20) Sr. Scientific serological report in respect of the exhibits which Officer (Biology) FSL reports are Ex.PW20/A & Ex.PW20/B respectively.

According to the said reports blood was detected on Ex.1 (smelling shirt having brown stains); Ex.3 (cotton wool swab having light brown stains); Ex.5 (cotton wool swab having light brown stains); Ex.6 (cemented concrete material having brown stains) and Ex.7 (blood sample in gauze piece) and human blood was found on Ex.1, Ex.3, Ex.5, Ex.6 & Ex.7 and "AB" blood group was found on Ex.1 and Ex.7.

He has further proved having examined one bag having brown stains Ex.'1a' and one tiffin having very light brown stains Ex.'1b' vide his reports Ex.PW20/C and Ex.PW20/D according to which St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 106 blood was detected on Ex.'1a' and Ex.'1b' and human blood was found on bag Ex.'la'.

Nodal Officers 20 Sanjeev Lakra (PW14) This witness has proved record pertaining to Mobile Alternate Nodal Officer, No. 9015968416 issued in the name of Babloo S/o Reliance Communication Shriram, R/o House No. 70, Gali No. 5, Jahangirpuri, Ltd. Haiderpur, Delhi83. He has placed on record the copy of the customer application form which is ExPW14/A; copy of the ESI Card in support of address of Babloo which is ExPW14/B; call detail record of Mobile No. 9015968416 for the period 21.03.2011 to 30.03.2011 which is Ex.PW14/C (three pages) and certificate under Section 65B of the Evidence Act in respect of the aforesaid mobile numbers which is ExPW14/D. 21 Pawan Singh (PW15) 1. This witness has proved the record pertaining Nodal Officer from Idea to Mobile No. 9990607478 (IMEI No. Cellular Ltd. 353481020216340) in the name of Anant Kumar Tiwari S/o Abhay Raj Tiwari, R/o 321, Banjara Wali Gali, Haiderpur, Delhi. He has placed on record the copy of the customer application form which is ExPW15/A; copy of the election card, copy of front page of pass book of Karnataka Bank Ltd. and copy of PAN card in support of address of Anant Kumar Tiwari which are are ExPW15/B, Ex.PW15/C and Ex.PW15/D respectively and the call detail records of Mobile No. 9990607478 (IMEI No. 353481020216340) for the period 31.3.2011 to 3.4.2011 which are collectively Ex.PW15/E (one page).

2. The witness has also proved the detail record pertaining to Mobile No. 9990788582 in the name of Sundser Paswan S/o Upender Paswan, R/o 107, Mazdoor Camp, Haiderpur Village Delhi. He has placed on record the copy of the customer application form which is St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 107 ExPW15/F; copy of the RC in support of address of Sunder Paswan which is ExPW15/G and the call detail record of Mobile No. 9990788582 for the period 29.3.2011 to 5.4.2011 which is collectively Ex.PW15/H (two pages).

3. The witness has also brought the detail record pertaining to Mobile No. 9540607230 in the name of Dhanno Paswan S/o Dhophai Paswan, R/o 341A, THuts, Sanjay Camp, Haiderpur Village Delhi. He has placed on record the copy of the customer application form which is ExPW15/I; copy of the election card in support of address of Dhanno Paswan which is ExPW15/J and the call detail record of Mobile No. 9540607230 for the period 27.3.2011 to 5.4.2011 which is collectively Ex.PW15/K (two pages).

4. The witness Pawan Singh has also produced the detail record pertaining to Mobile No. 9718200538 in the name of Shambhu Shivnandan Paswan S/o Jeetan Paswan, R/o A5, G7, Shriram Colony, Karawal Nagar, Delhi. He has placed on record copy of the customer application form which is ExPW15/L; copy of the election card in support of address of Shambhu Shivnandan Paswan which is ExPW15/M; call detail record of Mobile No. 9718200538 for the period 27.3.2011 to 5.4.2011 which are collectively Ex.PW15/N (eight pages) and the Cell ID Chart is collectively Ex.PW15/O (thirty nine pages). He has placed on record the Certificate under Section 65B of the Evidence Act in respect of the aforesaid mobile numbers which is ExPW15/P and the authorization letter from the company duly authorizing him to issue the certificate under St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 108 Section 65 of the Evidence Act in his capacity as Nodal Officer copy of which is Ex.PW15/Q. 22 Israr Babu (PW16) This witness has proved the record pertaining to Alternate Nodal Officer Mobile No. 9899695768 in the name Dhanno Paswan from Vodafone S/o Dhophai Paswan, R/o 341A, THuts, Sanjay Camp, Haiderpur Village Delhi. He has proved the customer application form which is ExPW16/A; copy of the election card in support of address of Dhanno Paswan which is ExPW16/B and the call detail record of Mobile No. 9899695768 for the period 27.3.2011 to 5.4.2011 which is collectively Ex.PW16/C (one page). The witness has also placed on record the Certificate under Section 65B of the Evidence Act in respect of the aforesaid mobile numbers which is ExPW16/D and the authorization by his company to issue the certificate under Section 65 of the Evidence Act in his capacity as Alternate Nodal Officer copy of which authorization is Ex.PW16/E. Police witnesses (Proving Investigations) 23 SI Devender (PW1) He is a formal witness being the Crime Team Incharge who has proved having inspected the spot and having prepared his report which is Ex.PW1/A. 24 Ct. Parvinder (PW2) He is a formal witness being the Crime Team photographer who has proved having taken the photographs of the spot of incident which photographs are Ex.PW2/A1 to Ex.PW2/A8 negatives of which are Ex.PW2/B collectively.

25 SI Manohar Lal (PW3) He is a formal witness being the Draftsman who has proved having prepared the scaled site plan which is Ex.PW3/A. 26 ASI Dori Lal (PW4) He is a formal witness being the Duty Officer who has proved having registered the FIR of the present case on the basis of rukka which is Ex.PW4/A and the copy of FIR is Ex.PW4/B. He has proved that copy of FIR and original rukka was handed over to Ct. Pawan to deliver the same to SI Praveen Kumar.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 109 27 HC Pawan Kumar He is a formal witness being the DD Writer who has (PW5) proved having lodged the DD No. 32A copy of which is Ex.PW5/A. 28 HC Pramod (PW6) He is a formal witness being the Duty Officer of Police Station Samaypur Badli who has proved having registered the FIR No. 14/11, under Sections 394/397/34 IPC of Police Station S.P. Badli on the basis of rukka which is Ex.PW6/A and after registering the FIR, the investigation of the case was entrusted to ASI Harender Singh.

29 Ct. Bhupender (PW7) He is a formal witness being the DD Writer who has proved having lodged the DD No. 7B dated 2.4.2011 regarding death of an unknown person who had been admitted in Trauma Centre on 30.3.11 copy of which DD is Ex.PW7/A. 30 Ct. Monu Yadav (PW8) He is a formal witness being the Duty Officer who has proved having lodged DD No.73B dated 30.3.2011 copy of which is Ex.PW8/A. 31 Ct. Ajay (PW9) He is also a formal witness who has proved the seizure memo of the blood sample of the deceased which seizure memo is Ex.PW9/A and handing over of the dead body which is Ex.PW9/B.

32. HC Mukesh Chand He is the MHCM who has proved the various entries (PW10) i.e. entry no.3620/11 in Register No.19 copy of which is Ex.PW10/A; entry no.3626/11 in Register No.19 copy of which is Ex.PW10/B; entry no.3627/11 in Register No.19 copy of which is Ex.PW10/C; entry no.3630/11 in Register No.19 copy of which is Ex.PW10/D and entry no.3701/11 in Register No. 19 copy of which is Ex.PW10/E. He has also proved the copies of the RC No.37/21/11 which is Ex.PW10/F;

copy of RC No. 38/21/2011 which is Ex.PW10/G;

copy of RC No. 52/21/2011 which is Ex.PW10/H and the FSL Receipts are Ex.PW10/I, PW10/J and Ex.PW10/K. The witness has further proved that on 17.05.2011, one mobile phone make Nokia duly sealed with the seal of PC was sent to Police Station Samay St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 110 Pur Badli vide RC No. 21/21/11 for investigation in case FIR No. 141/11 which RC is Ex.PW10/L. 33 W/HC Sangeeta (PW11) He is a formal witness being the PCR official who has proved the PCR information dated 30.3.2011 copy of which is Ex.PW11/A. According to her at about 22.23 Hrs, a PCR call regarding 'Khoon Ho Gaya Hai' C & D Block, Shalimar Bagh near Badli More, Gate No.4, Police booth ke pass was received from a Mobile No. 9910378590 which was recorded by her.

34 Ct. Anil Kumar (PW12) He is a formal witness who has proved the RC No. 37/21/2011 copy of which is Ex.PW10/F vide which he had taken the pullandas from the MHCM and deposited the same in the FSL Rohini.

35 Ct. Ram Phal (PW34) He was the Duty Constable of the area who has deposed on the following aspects:

1. That on 30.03.2011 he was posted as Constable at Police Station Shalimar Bagh and on the intervening night of 30/31.03.2011 he was on patrolling duty in the area of his beat.

2. That while patrolling at about 10:15 PM when he reached C & D Block and when he was coming from inside C&D Block towards outer gate, he saw two security guards namely Amit Giri and Farakat Ali coming towards inside the colony from the outer gate.

3. That on asking they told that three boys had stabbed a person and on receipt of this information he immediately came out of the outer gate where he saw a man was lying in injured condition at the footpath and he was bleeding towards the right side arm pit.

4. That on seeing the situation he took that injured in a TSR to BJRM hospital and after some time SI Parveen Kumar also reached in the hospital and collected the MLC of that injured.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 111

5. That the doctor had handed over sealed pullanda of clothes of injured along with Rs 45/ which were recovered from the possession of the injured and sample seal which were taken into possession by SI Parveen Kumar vide seizure memo Ex.PW34/A.

6. That the amount of Rs.45/ which was recovered from the pocket of injured were taken into possession by SI Parveen Kumar vide seizure memo Ex.PW34/B.

7. That after some time injured was removed to Trauma Center, Civil Lines and from the Trauma Center they had reached the spot where his statement was recorded by SI Parveen Kumar.

8. He has proved that on 10.06.2011 as per the directions of the Investigating Officer he took one sealed pullanda containing one mobile phone (S525) vide RC No. 38/21/11 along with forwarding letter of SHO to be deposited at FSL, Rohini and accordingly he deposited the same at FSL Rohini vide receipt No. FSL2011CFU3065 dated 10.06.2011 after which he handed over the acknowledgment receipt to MHC(M).

9. That during the period the pullanda remained in his custody it was not tampered with and on 10.06.2011 his supplementary statement in this regard was recorded by the Investigating Officer.

36 Ct. Pawan(PW36) This witness has deposed on the following aspects:

1. That on the intervening night of 30/31.03.2011 he was posted at Police Station Shalimar Bagh from 8.00PM to 8.00AM on emergency duty.

2. That on receipt of DD NO.32A at 10.35pm he alongwith SI Praveen went to outer gate CD Block, Near Badli Road, Outer Ring Road where they reached at about 10.50 PM and St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 112 came to know that Ct. Ramphal already shifted the victim to BJRM Hospital.

3. That he was left at the spot for preserving/ safeguarding the same whereas SI Praveen went to BJRM Hospital.

4. That after some time SHO Police Station Shalimar Bagh and Inspector investigation came to the spot and called the crime team who inspected the spot and took photographs of the same.

5. That after sometime SI Praveen Kumar also came to the spot and handed over to him a tehrir with the directions to taking the same to the police station for registration of the FIR.

6. That accordingly he took the tehrir to the police station and handed over the same to the Duty officer who after registration of the FIR handed over to him the copy of FIR and original tehrir which he brought to the spot and handed over the same to SI Praveen Kumar.

7. That SI Praveen lifted earth control and blood stained earth with the help of cotton and put the same in separate plastic containers and sealed the same with the seal of RPS which seal after use was handed over to him and the pullanda was seized vide memo Ex.PW36/A.

37 SI Rajesh Kumar Verma This witness has joined the investigations with the (PW37) Investigating Officer, ASI Lala Ram, HC Harish, Ct.

                                 Ramphal   and   Ct.   Pradeep.     He   has   proved   the  
                                 following documents: 
                                               Ex.PW37/A           Supplementary   statement   of   accused  
                                                                   Lal Babu
                                               Ex.PW37/B           Supplementary   statement   of   accused  
                                                                   Sunder Paswan
                                               Ex.PW37/C           Seizure memo of mobile phone make  
                                                                   Nokia u/s. 102 Cr.P.C.



St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh                                          Page No. 113
 38       SI Anil Kumar (PW38)                  This   witness   has   joined   the   investigations   with

Inspector Puran Chand and has proved the following documents:

                                               Ex.PW38/A         Seizure memo of knife
                                               Ex.PW38/B         Sketch of the knife
                                               Ex.PW38/C         Disclosure   statement   of   accused  
                                                                 Sunder Paswan
                                               Ex.PW38/D         Disclosure   statement   of   accused   Lal  
                                                                 Babu
                                               Ex.PW38/E   Pointing   out   memos   of   accused  
                                               & PW38/F    Sunder Paswan & Lal Babu
39       EX   SI   Parveen   Kumar  He is  the initial Investigating  Officer  and has  also  
         (PW39)                     joined   investigations   with   Inspector   Puran   Chand.

Apart from the documents already proved by the other witnesses, he has proved the following documents:

                                               Ex.PW39/A         Tehrir
                                               Ex.PW39/B         Application   for   conducting  
                                                                 postmortem  on the dead body of the  
                                                                 deceased
                                               Ex.PW39/C         Rough site plan
                                               Ex.PW39/D         Request for preserving the dead body
40       ASI Lala Ram (PW40)                   He   has   corroborated   the   testimony   of   SI   Rajesh  
                                               Kumar   Verma   (PW37)   in   toto   and   has   proved   the

supplementary disclosure statement of accused Lal Babu which is Ex.PW37/A; supplementary disclosure statement of accused Sunder Paswan which is Ex.PW37/B; seizure memo of broken mobile phone which is Ex.PW23/A and proceedings U/s 102 Cr.P.C. which are Ex.PW37/C. 41 Ct. Doodh Nath (PW41) This witness has joined the investigations along with Investigating Officer Inspector Puran Chand and has proved the following documents:

                                               Ex.PW41/A         Arrest memo of accused Devender @  
                                                                 Bedu


St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh                                     Page No. 114
                                                Ex.PW41/B         Personal   search   memo   of   accused  
                                                                 Devender @ Bedu
                                               Ex.PW41/C         Disclosure   statement   of   accused  
                                                                 Devender @ Bedu
                                               Ex.PW41/D         Seizure  memo  of  tiffin   got  recovered  
                                                                 by the accused Devender
                                               Ex.PW41/E         Pointing   out   memo   of   place   of  
                                                                 incident by accused Devender

42       Inspector Puran Chand   He is the subsequent Investigating Officer and apart  
         (PW42)                  from   the   documents   already   proved   by   the   various

witnesses he has proved the following documents:

                                               Ex.PW42/A         Brief facts
                                               Ex.PW42/B         Inquest form
                                               Ex.PW42/C         Request for postmortem



(102)                Coming   now   to  the   microscopic   evaluation   of   the   evidence 

against the accused persons.


Eye witness Rajeev Kumar is a credible witness:

(103)                Ocular evidence/ eye witness count is the best evidence in any

case. In the present case there is direct eye witness account in the form of the testimony of Rajeev Kumar (PW25) a property dealer by profession who is a resident of House No.499, C&D Block, Shalimar Bagh, Delhi who had witnessed the incident when he had seen three persons hitting one other person with a knife on which he raised an alarm and called two security guards of his colony namely Amit Giri and Farakat Ali and on hearing his alarm the said three assailants whom he had seen ran away after which the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 115 injured was rushed to the hospital by the Beat Constable on duty. His testimony on the aspect of the incident finds independent corroboration from the testimonies of the security guard Farakat Ali (PW29) and Amit Giri (PW30) confirming his presence at the spot while the incident took place. It is only Rajeev Kumar (PW25) who has identified all the three accused in the Court as the assailants whereas both the security guards Farakat Ali (PW29) and Amit Giri (PW30) have though supported the case of the prosecution on the aspect of incident but have turned hostile on the aspect of the identity of the accused.

(104) Coming first to the testimony of Rajeev Kumar (PW25), the relevant portion of his testimony is as under:

"........ I am doing the property dealing in the area of Rohini and I have an office at Flat no. 100, Pkt.13, Sector 24, Rohini, Delhi. On 30.03.2011 at about 10.00PM I boarded down from the bus at bus stand of Badli as I was coming from my office. Thereafter I was going to my house on foot. When I reached on service lane near C&D block, Shalimar Bagh, Delhi and reached near the gate of our residential society on outer ring road, three persons were having caught hold one person. Firstly I was under

impression that they were friend but when I came to more near to them I saw that the above said three persons forced that person to lie on the ground (neechey gira diya tha) and one persons was holding a knife in his hand and another person was holding a long knife like a Kirpan and they were caught hold that person who was lying on the ground. I shouted. Two guards of our society reached there after hearing the noise and they St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 116 were having dandas in their hand and I told them to save the victim and when both the guards reached near the assailants, they challenged our guard with their knives and both the guards ran away from there. I did not try to save the victim as I was ill due to Psoriasis (Skin deceased). I immediately called President of Society namely Satish Singhal. He also reached there and we both reached the gate of our society and we saw that victim was lying at the distance of 3040 feet in injured condition. Meanwhile PCR police and beat constable reached there and took the injured from there. I can identify all the accused persons. Witness pointed out towards the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu and identified them correctly as the assailants who caused the abovesaid incident.

Witness pointed out towards accused Sunder who was holding a knife in his hand at the time of incident and he pointed out towards the accused Devender @ Bedu who was holding a long knife look like Kirpan at the time of incident. I do not remember the name of guards who were called by me at the time of incident but both are also present outside the court for testimony.

At this stage Ld. Addl. PP seeks permission to put leading question to the witness about the name of the security guards.

Heard. Permitted.

It is correct that the name of the security guards are Amit Giri and Farakat Ali and I have seen them outside the court today.

At this stage on the directions of the court the witnesses Amit Giri and Farkat Ali called in the court and the witness has correctly identified both the security guards...."

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 117

(105) Rajeev Kumar (PW25) has been subjected to sustain cross examination wherein he has explained that he had seen the incident from a distance of 2530 feet where there was sufficient light on account of large number of electricity poles in their locality. His testimony finds due corroboration from the testimony of Farakat Ali (PW29) who has not only confirmed the presence of Rajeev Kumar at the spot and also confirmed that there was sufficient light at the spot of incident on account of the electricity poles in the area. In fact Farakat Ali has explained that the said boys had come towards them and one of the assailants had showed them a knife. This confirms that Rajeev Kumar (PW25) was in a position to have identified all the three accused i.e. Sunder Paswan, Devender @ Bedu and Lal Babu @ Sanjay as the assailants. In the Court Rajeev Kumar has identified Sunder Paswan as the boy who was holding a knife in his hand at the time of incident; accused Devender @ Bedu who was holding a long knife looking like Kirpan at the time of incident.

(106) Coming now to the testimony of Farakat Ali (PW29), the relevant portion of his testimony is as under:

"..... On 30.03.2011 I was posted as a guard at gate No. 4, CD Block, Shalimar Bagh. On the intervening night of 30/31.03.2011 I was on duty from 8PM to 8AM at the out gate. I was sitting on the gate and the other chowkidar/guard Amit Giri was on round duty. At about 10PM Amit Giri was coming towards the out gate from gate NO.3 in the meanwhile we heard a lot of "shor sharaba"/loud voices coming from outside. We also saw St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 118 some persons coming from the Rohini side which included one Rajeev resident of C&D Block. They called me and told me that some boys were doing marpitai on the road and told me that we should stopped them. I was present with Rajeev and then I saw that these boys came running to our side and passed us and one boy was carrying a knife with which he had inflicted injuries to the person which while running away he brandished the same towards me ("mujhe chako dikhaya tha"). In the meantime Amit Giri had also reached the spot on which we called 100 number after which the police shifted the injured to the hospital by a TSR.

Court question: On seeing the injured lying at the spot, what action did you take?

Ans. :I did not do anything( maine khuch nahi kiya). Court Question : Did you go near the injured to see whether he is alive or not or to give any assistance to him?

Ans. :I did not go near the body but I came to know later on that he was alive. I did not make any attempt to shift the deceased to the hospital nor I gave any other kind of assistance to the said person.

On Court Question: Police came after 1015 minutes and till that time the injured was struggling for life. I was told later on by the public that he had expired.

The boy who was carrying a knife in his hand was not very tall. Again said he was slightly taller than me. Court observation: witness is around 5 feet 4 inches to 5 feet 5 inches and states that the said accused was about 24 inches taller to him.

I had seen two persons and only one of them were having the knife.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 119

At this stage the Ld. APP for the state seeks permission to put leading questions to the witness as he is not giving the complete details.

Heard. Permission granted.

It is correct that my statement was recorded by the police. Vol. it was recorded in the police station. At this stage the statement Ex.PW29/PX1 is read over to the witness and he admits to having made so before the police except from portion A to A1.

It is correct that I had informed the police that at 10PM when I and Amit Giri were on duty and Amit Giri was walking towards me, we heard loud voices on which both of us took our lathies and went outside where we found that on the right side on the gate near the stack of sand three boys were beating a person and while we were still seeing they stabbed him. I also told the police that when I and Amit Giri exhorted the said boys, all three of them out of whom two were carrying knives ran towards me. It is correct that I had told the police that on seeing this both myself and Amit Giri got extremely scared and ran back to our guard booth. It is correct that we further told the police that beat constable Ram Phal came to the spot where the injured was lying on the patri around 3040 feet away from the place of the stabbing and shifted the injured to the hospital in a three wheeler scooter. It is correct that I told the police that out of the three boys, one boy who was carrying a knife had tied his handkerchief like a patka on his head and he was around 5 feet and few inches in height. It is correct that I also told to the police that the second boy was having a knife in his hand was short stature but it is incorrect that I told the police that he was of brown color (bhura rang). It is St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 120 correct that I had told the police that the third accused was of dusky complexion (sawla rang) and was around 5 feet 5 inches in height and that all the three accused were of average built. It is correct that on my pointing out the site plan was prepared showing the point where the incident took place near the stack of sand and also the footpath where the victim was lying....."

(107) In so far as the witness Amit Giri (PW30) is concerned he has turned completely hostile on the identity of the accused. It is evident from the record that both Farakat Ali (PW29) and Amit Giri (PW30) are both security guards who were employed at C&D Block, Shalimar Bagh through the security agency Rock Security Agency being by Ganesh Goswami (PW31) who has proved the Duty Register which is Ex.PW31/A and hence the presence of Farakat Ali (PW29) and Amit Giri (PW30) cannot be doubted. Though both the security guards namely Farakat Ali (PW29) and Amit Giri (PW30) have proved the incident but have turned hostile on the aspect of identity of the accused persons and the reason for the same is that Farakat Ali (PW29) in his crossexamination has conceded that the family members of the accused had come to his house and approached him before he had come to the Court to give his statement. In the leading questions put by the Ld. Addl. PP for the State the witness Farakat Ali (PW29) has admitted the entire incident and has also admitted having given the description of the assailants to the Investigating Officer but has only turned hostile on the identity of the accused persons on the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 121 pretext that it was dark and he could not notice them and a valid explanation for the same is forthcoming i.e. the family members of the accused had approached him before this deposition and had come to his house.

(108) There is also independent corroboration forthcoming to the testimony of Rajeev Kumar (PW25) in the form of testimony of Satish Singhal (PW32) who is the President of the Residents Welfare Association of C & D Block, Shalimar Bagh. He has in his testimony corroborated the testimony of Rajeev Kumar (PW25) and has confirmed that on the date of incident that he had received a call on his mobile phone from Rajeev Kumar who informed him that one person had been stabbed by three boys on which he immediately reached the spot and came to know that the beat Constable had shifted the injured to hospital. The relevant portion of his testimony is as under:

"....... On 30.03.2011 I was working as President of RWA of C & D Block, Shalimar Bagh and I am Chartered Accountant and doing private practice. On 30.3.2011 at about 10:15 PM I was present at my aforesaid flat, at that time I had received a call on my mobile phone from Sh. Rajeev Kumar, who also resides in our society in D Block to the effect that one person has been stabbed by three persons outside outer gate of C&D Block and I should reach there. On receipt of this phone call, I immediately reached at the outer gate of C&D Block and I came to know that the beat constable of the area namely Ct. Ram Phal had taken that injured to the hospital in a TSR. At St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 122 that time Rajeev Kumar who had made a phone call to me and two security guards of our colony namely Amit Giri and Farakat Ali were also present there and at that time Rajeev Kumar had told me that he was coming towards C&D Block on foot from Badli village bus stand through service lane and at about 10 PM when he reached near outer gate of C&D block, three persons were scribbling with a person and that person was crying. Out of those three persons, one was armed with knife and one person were tied his head with the help of handkerchief was also having a long size knife. Rajeev Kumar had further told me that on seeing the same, he called his security guards Amit Giri and Farakat Ali who were standing near the booth situated inside the outer gate on Ring Road and after some time both the guards who were armed with lathies had come there and on seeing those guards all those three boys ran towards the security guards. Due to fear both the guards ran back. Same facts were revealed to me by our security guards Amit Giri and Farakat Ali and Amit Giri had also told me that he had informed the police on 100 number and PCR van had come there and after some time local police officials of police station also reached there. On 10.04.2011 Inspector Puran Singh had made inquiries from my and also recorded my statement to whom I have stated aforesaid facts in my statement...."

(109) Ct. Ramphal (PW34) who was beat duty in the area had also reached the spot at about 10:15 PM while he was on regular beat duty and has also independently corroborated the testimony of Rajeev Kumar (PW25), Farakat Ali (PW29) and Amit Giri (PW30) to the extent that on St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 123 3031.3.2011 at about 10:15 PM when he reached C&D Block Outer Gate he saw two security guards namely Amit Giri and Farakat Ali coming towards the outer gate and he came to know that one person was lying injured on the stack of sand and had been stabbed by someone on which he immediately shifted the injured to hospital (the MLC of the deceased Ex.PW17/A confirms this fact).

(110) It is a settled law that where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 124 probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:

Krishnan Vs. State reported in AIR 2003 SC 2978).

(111) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).

(112) Applying the settled principles of law to the facts of the present case it is writ large that in so far as the witness Rajeev Kumar (PW25) is concerned he is a resident of the same area who was returning St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 125 home from his work and his presence in the area particularly at the spot is natural and probable. From the joint reading of the testimonies of Rajeev Kumar, Farakat Ali, Amit Giri, Satish Singhal and Ct. Ramphal the following facts emerge and stand established:

➢ That Rajeev Kumar is a resident of C&D Block, Shalimar Bagh and is a property dealer by profession having his office at Flat No. 100, Pocket13, Sector24, Rohini, Delhi.

➢ That on 30.3.2011 at about 10:00 PM he alighted the bus and was going to his house on foot.

➢ That when Rajeev Kumar reached service lane near C&D Block, Shalimar Bagh near the gate of the residential society on Outer Ring Road, he saw three persons catching hold of one person. ➢ That he saw the above said three persons forcing that person to lie on the ground (neechey gira diya tha) and one persons was holding a knife in his hand and another person was holding a long knife looking like a Kirpan.

➢ That the said assailants had caught hold of that person who was lying on the ground on which he raised an alarm.

➢ That on hearing the alarm raised by Rajeev Kumar, the Security Guards Amit Giri and Farakat Ali came to the spot with dandas in their hands (the fact that Amit Giri and Farakat Ali were posted as security guards at C&D Block has been duly proved by the Incharge of Rock Security Agency namely Ganesh GoswamiPW31). St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 126 ➢ That the said assailants while running crossed them (Rajeev Kumar & Farakat Ali) when it was noticed that one boy was carrying a knife with which he had inflicted injuries to the person which he brandished the same towards Farakat Ali (which fact has been duly proved by Farakat Ali).

➢ That Amit Giri made a call at 100 number (from the mobile phone No. 9910378590 given to him by Ganesh Goswami Incharge of Security Agency).

➢ That in the meanwhile the Beat Constable Ramphal reached the spot and shifted the injured to BJRM Hospital.

➢ That Rajeev Kumar immediately informed the President of RWA namely Sh. Satish Singhal of the incident that three persons had inflicted injuries one person who was removed to hospital by Beat Constable (testimony of Rajeev Kumar finds due corroboration from the testimony of Satish Singhal and Ct. Ramphal in this regard). (113) There is no history of animosity between Rajeev Kumar and the accused persons. It has come on record that there was sufficient light in the area from the electricity poles and the site plan placed on record which is Ex.PW39/C (duly proved by SI Praveen Kumar) actually shows the existence of the electricity poles. There are no material contradictions in his testimony and he has been most consistent in his deposition and the version given by him is probable finding due corroboration from the testimonies of other witnesses as aforesaid. The contradictions if any are St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 127 only minor which do not affect the merits of the case [Ref: Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1)].

(114) It stands established that initially it was Rajeev Kumar who first witnessed the incident and it has been explained by Farakat Ali that the assailants on hearing the alarm raised by Rajeev Kumar started running from the spot and passed by them. This confirms that there was sufficient time and opportunity for the eye witness Rajeev Kumar to have closely observed the assailants. In this background, I hereby hold the testimony of the eye witness Rajeev Kumar authentic, probable, credible, trustworthy and reliable which does not suffer from any inherent inconsistency. He has not only identified all the accused Sunder Paswan, Lal Babu and Devender @ Bedu as the assailants of the deceased but has also proved that first all the accused Sunder Paswan, Lal Babu and Devender @ Bedu pushed the deceased to the ground and gave his fist and leg blows and thereafter stabbed him. It stands confirmed that at the time of the incident the accused Sunder Paswan was holding a knife in his hand and the accused Devender @ Bedu was holding a long knife look like Kirpan which was also shown to them (i.e. himself, Farakat Ali & Amit Giri) when they raised an alarm and the accused while running away from the spot crossed the place i.e. Gate of C & D Block where they were standing. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 128

Medical Evidence / Cause of Death:

(115) Dr. Rajesh Satija (PW17) has duly proved that initially at the time of admission the injured was semiconscious and responding to painful stimulus but was not responding to verbal commands. Two injuries were found present on the body of the deceased i.e. stab injury in the right chest wall laterally below arm pit (3 x 1 cm) and bruise mark with abrasion on right chest wall front near sternum (3 x 2 cm). He proved the MLC of the injures which is Ex.PW17/A. Dr. Ashutosh Mishra (PW18) has proved the Death Summary which is Ex.PW18/A. (116) Dr. Bhim Singh (PW13) is the Autopsy Surgeon who has proved having conducted the conducted postmortem examination on the body of deceased Buddhi Lal vide postmortem report which is Ex.PW13/A. He has proved that on external examination, there were following injuries.

Injury no.1: Incised Stab wound (3.5 x 0.5) cm over left chest 3 cm above left nipple and 13 cm below left shoulder.

Injury No.2: Incised stab wound one end acute and one blunt (3.5 x 0.5) cm x muscle deep present over right side of chest 5 cm lateral to right nipple.

Injury No.3: Incised stab wound (3.5 x 0.5) cm, organ deep, present over right side of chest over posterior axillary line 9 cm below right nipple.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 129 (117) The witness has proved having opined that death in the present case was due to septicemia consequent upon stab wound over chest via injury no.3, all the injuries were antemortem, Injury No. 1, 2 and 3 were caused by single sharp edged weapon and Injury No.3 is sufficient to cause death in ordinary cause of nature. Dr. Bhim Singh has further proved that on 18.04.2011 pursuant to the application of the Investigating Officer, he examined the single edged silver colour metallic knife and opined that the injuries no. 1 to 3 as mentioned in the postmortem could be caused by the above examined weapon, which subsequent opinion is Ex.PW3/D. (118) In view of the above, I hereby hold that the medical evidence on record is compatible to the prosecution case and corroborates the testimony of the eye witness Rajeev Kumar who had seen the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu inflicting stab injuries to the deceased.

Forensic Evidence:

(119) Dr. Virender Singh (PW19) has proved that the mobile phone make SPICE model No. S525 in three pieces was sent to him for examination and has proved his report vide Ex.PW19/A. (120) Sh. Indresh Kumar Mishra (PW20) has duly proved the biological and serological reports in respect of the exhibits examined by St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 130 him which are Ex.PW20/A and Ex.PW20/B respectively. According to the said reports human blood was detected on Ex.1 (shirt of the deceased), Ex.

3 (cotton wool swab), Ex.5 (cotton wool swab), Ex.6 (concrete material) & Ex.7 (blood sample of the deceased) and "AB" blood group was found on Ex.1 (shirt of the deceased). He has further proved having examined one bag having brown stains Ex.'1a' and one tiffin having very light brown stains Ex.'1b' vide his reports Ex.PW20/C and Ex.PW20/D according to which blood was detected on Ex.'1a' and Ex.'1b' and human blood was found on bag Ex.'la'.

(121) In view of the above I hereby hold that the forensic evidence on record is compatible to the prosecution and shows the presence of human blood on the clothes of the deceased and from the exhibits (concrete) lifted from the spot thereby conclusively corroborating and establishing the oral testimonies of Rajeev Kumar, Amit Giri and Farakat Ali that the stabbing incident had in fact taken place on the stack of sand at the spot (shown in Ex.PW39/C).

Identity of the deceased established / Mobile of deceased put on tracking:

(122) The case of the prosecution is that the deceased Buddhi Lal was working in the brush factory of Madan Pal (PW24) at Bhalswa Dairy and on the date of incident he was going back to his home after finishing his work and was passing through the area when the incident had taken St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 131 place. There was nothing on his body on the basis of which his identity could be established, the assailants having taken / robbed him of all his belongings and hence was admitted in the hospital as an unknown person.

Being a migrant worker the family of the deceased was residing in native village whereas the deceased was staying in Delhi along with one of his cousin brother Hanuman. The deceased Buddhi Lal was last seen alive by Hanuman on 30.3.2011 when he left for his factory for work after which he did not return home.

(123) The employer of the deceased Buddhi Lal namely Sh. Madan Pal (PW24) has duly proved that the deceased Buddhi Lal was his worker and had left his factory on 30.3.2011 at around 8:00 PM after which he did not return on the next day. Hanuman (PW26) who is the cousin brother of the deceased (deceased was the son of his mama) has explained that it was not unusual that Buddhi Lal did not return home because the brother in law of Buddhi Lal namely Kanhayya Lal was residing at Alipur and Buddhi Lal frequently visited Kanhayya Lal and also stayed overnight with him and hence when the deceased did not return home Hanuman did not pay much attention and thought that he had gone to his brotherinlaw's house. Even on the succeeding days he did not make a missing report nor he paid any attention to this fact that the deceased had not returned him and it was only when he received a message from Madan Pal the employer of Buddhi Lal that he was not reporting for his duties, that Hanuman was alerted. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 132 (124) Madan Pal (PW24) in his testimony has specifically proved that Buddhi Lal who was his regular employee had not reported on his duties after 30.3.2011 and hence he sent a message to his cousin brother. The testimony of Madan Pal (PW24) and Hanuman (PW26) find due corroboration from the testimony of other relatives of deceased Buddhi Lal namely Babloo (PW27) son of Mausi of Buddhi Lal and Kanhayya Lal (PW28) the brother in law (Sala) of Buddhi Lal who have also been examined as witnesses in the Court.

(125) All the aforesaid witnesses have corroborated each other on the aspect that it was on 1.4.2011 that Madan Pal sent some person from his factory to inquire as to why the deceased was not reporting for work on which Hanuman got in touch with the son of Mausi of the deceased (Babloo) who called up Kanhayya Lal the brother in law (Sala) of the deceased and came to know that deceased was not with them. Hanuman (PW26) also informed the family members of the deceased at his native village and to find out whether he had gone to his native village or not and hence when the deceased was not found with any of the relatives, they decided to lodge a missing report in respect of Buddhi Lal. All the three relatives of the deceased i.e. Hanuman (PW26), Babloo (PW27) and Kanhayya Lal (PW28) have proved that together they all decided to go to the Police Station but while they were still on the way some females of the area informed them that police had put some posters in the area regarding the identification of a dead body which had been found in the area which St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 133 posted was pasted on the wall of house of Bindiya. Thereafter they met Ms. Bindiya a resident of the same area but the said poster which was put on the wall of her house was missing. However, Bindiya having seen the picture of the dead body on the poster told them that she was in a position to identify the person, on which Hanuman brought a photograph of the deceased from his Jhuggi and showed it to Bindiya when she identified the said photograph as that of the person whose picture she had seen in the posters. On this Hanuman (PW26), Babloo (PW27) and Kanhayya Lal (PW28) went to Police Station Shalimar Bagh where they found a poster pasted on the notice board showing the dead body of Buddhi Lal. It is only then that the Investigating Agency came to know that the deceased / victim was Buddhi Lal S/o Late Govind. They also informed the police that while leaving the house the deceased Buddhi Lal was in possession of a mobile phone make Spice model S525 which had been given to him by his employer Madan Pal (PW24) which fact has been corroborated by Madan Pal in his testimony. In fact Babloo also informed the police that he had given his own SIM bearing No. 9015968416 to Buddhi Lal since the SIM of Buddhi Lal was not working. Thereafter the Investigating Officer obtained the IMEI No. of the mobile set and kept the same on surveillance and it was then revealed that the same had been used by somebody. The details of the phone numbers used in the said mobile set bearing IMEI No. 353481020216340 were obtained and it was found that a SIM bearing No. 9990607478 was operated in the mobile set which was issued in the name St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 134 of Anant Kumar Tiwari. When the police contacted the number of said Anant Kumar Tiwari they came to know that the phone was being used by his wife Hemlata Tiwari. It was Hemlata Tiwari (PW22) who then disclosed to the police that she had purchased the said mobile phone from one Lal Babu @ Sanjay (accused) for a sum of Rs.300/ and that Lal Babu @ Sanjay was working with her in the same factory but after two days he (Lal Babu) demanded the mobile set back on which she handed over the mobile set back to Lal Babu @ Sanjay but after about two days Lal Babu told her that the mobile set had been broken. This fact that Hemlata was working with Lal Babu @ Sanjay has been duly confirmed by Ashok Aggarwal (PW35) who is doing the business of spices and running a company under the name and style of SDS from 645, Mahavira Gali also called Double Transformer Wali Gali, Haiderpur. He has identified the accused Lal Babu @ Sanjay in the Court as the person who had worked in his factory for about one month. He has also proved that Hemlata was also his employee. He has further proved that Lal Babu @ Sanjay had taken an advance of Rs.5000/ from him out of which he had deducted Rs.4000/ from his salary and Rs.1000/ was to be adjusted in the salary of succeeding next month but later he came to know that Lal Babu @ Sanjay is involved in some criminal case. It is on the basis of the electronic tracking that ultimately for the first time the police find some clue regarding the identity of the accused persons.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 135 Electronic evidence:

(126) Sh. Sanjeev Lakra (PW14) Alternate Nodal Officer, Reliance Communication Ltd. has proved the brought the record pertaining to Mobile No. 9015968416 issued in the name of Babloo (cousin brother of the deceased which SIM Babloo has proved he had given to deceased). He has duly proved the customer application form which is ExPW14/A; copy of the ESI Card in support of address of Babloo which is ExPW14/B; call detail record of Mobile No. 9015968416 for the period 21.03.2011 to 30.03.2011 which is Ex.PW14/C (three pages) and certificate under Section 65B of the Evidence Act in respect of the aforesaid mobile numbers which is ExPW14/D. (127) Sh. Pawan Singh (PW15), Nodal Officer from Idea Cellular Ltd. has proved the record pertaining to Mobile No. 9990607478 which was issued in the name of Anant Kumar Tiwari (husband of Hemlata Tiwari PW22 who had operated the said SIM in the mobile set having IMEI No. 353481020216340 which she had purchased from Lal Babu @ Sanjay). He has duly proved the customer application form which is ExPW15/A; copy of the election card, copy of front page of pass book of Karnataka Bank Ltd. and copy of PAN card in support of address of Anant Kumar Tiwari which are are ExPW15/B, Ex.PW15/C and Ex.PW15/D respectively and the call detail records of Mobile No. 9990607478 (IMEI No. 353481020216340) for the period 31.3.2011 to 3.4.2011 which are St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 136 collectively Ex.PW15/E (one page). The witness has further proved the detail record pertaining to Mobile No. 9990788582 in the name of Sunder Paswan (accused before this Court); the customer application form is Ex.PW15/F; copy of the RC in support of address of Sunder Paswan which is ExPW15/G and the call detail record of Mobile No. 9990788582 for the period 29.3.2011 to 5.4.2011 are collectively Ex.PW15/H (two pages).

(128) Sh. Pawan Singh (PW15) has also proved the record pertaining to Mobile No. 9540607230 which was issued in the name of Dhanno Paswan (father of accused Sanjay @ Lal Babu); the customer application form which is ExPW15/I; copy of the election card in support of address of Dhanno Paswan which is ExPW15/J and the call detail record of Mobile No. 9540607230 for the period 27.3.2011 to 5.4.2011 which are collectively Ex.PW15/K (two pages). He has further proved the record pertaining to Mobile No. 9718200538 in the name of Shambhu Shivnandan Paswan; the customer application form which is ExPW15/L; copy of the election card in support of address of Shambhu Shivnandan Paswan which is ExPW15/M; call detail record of Mobile No. 9718200538 for the period 27.3.2011 to 5.4.2011 which are collectively Ex.PW15/N (eight pages) and the Cell ID Chart is collectively Ex.PW15/O (thirty nine pages). (129) Sh. Israr Babu (PW16) Alternate Nodal Officer from Vodafone has proved the record pertaining to Mobile No. 9899695768 St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 137 which is issued in the name of Dhanno Paswan (father of the accused Sanjay @ Lal Babu). He has also proved the customer application form which is ExPW16/A; copy of the election card in support of address of Dhanno Paswan which is ExPW16/B and the call detail record of Mobile No. 9899695768 for the period 27.3.2011 to 5.4.2011 which is collectively Ex.PW16/C (one page).

(130) The case of the prosecution is that at the time of his arrest the accused Sunder Paswan was found in possession of two mobile phones one of Sony Ericson having IMEI No. 356573011063647/01 with SIM No. 9718200538 and YE Mobile phone having IMEI No. 351639042532267 & 351639042532275 without any SIM. Further, the accused Sanjay @ Lal Babu was also found in possession of one Nicloa NX 500 mobile phone double SIM (made in China) having IMEI No. 352948045023896 with SIM No. 9540607230 (in the name of his father Dhanno Paswan) and IMEI No. 352948045023895 with SIM No. 9899695768 (in the name of his father Dhanno Paswan).

(131) From the testimonies of the various witnesses and analysis of the aforesaid call details record the following facts stand established:

➢ That at the time of the incident the deceased Buddhi Lal was having a mobile set make Spice (S525) bearing IMEI No.353481020216340 with SIM No. 9015968416 which was in the name of Babloo (which mobile set was robbed).

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 138

➢ That the above mobile set make Spice (S525) bearing IMEI No. 353481020216340 originally belonged to Madan Pal who sold it to Buddhi Lal earlier along with accessories which Buddhi Lal was using ever since.

➢ That the SIM bearing No. 9015968416 in the above mobile set was in the name of his cousin Babloo which Babloo had given to Buddhi Lal.

➢ That Hemlata Tiwari was using the SIM No. 9990607478 which was issued in the name of her husband Anant Kumar Tiwari and on 31.3.2011 she had inserted her SIM on the mobile phone bearing IMEI No. 353481020216340 (mobile set belonging to the deceased) which mobile set she had purchased from accused Lal Babu @ Sanjay whom she knew because Lal Babu @ Sanjay was working with her in the same factory of Ashok Aggarwal at 645, Mahavira Gali also called Double Transformer Wali Gali, Haiderpur.

➢ That Hemlata Tiwari had used the said mobile set till 3.4.2011 (confirmed from Call Detail Records Ex.PW15/E).

➢ That Lal Babu took the mobile set bearing IMEI No. 353481020216340 back from Hemlata Tiwari and thereafter did not return the same on the pretext that it was broken whereas he actually broke the same on instructions of accused Devender @ Bedu in an attempt to destroy it having come to know of death of the victim. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 139 ➢ That at the time of his arrest the accused Sunder Paswan was found in possession of mobile set make Sony Ericson having IMEI No. 356573011063647 with SIM No.9990788582 which is in the name of accused Sunder Paswan (Ex.PW15/H).

➢ That at the time of his arrest the accused Sanjay @ Lal Babu was found in possession of a mobile phone make Nicola NX 500 (double SIM) having IMEI No. 352948045023895 with SIM No. 9540607230 and IMEI No. 352948045028895 with SIM No. 9899695768.

➢ That the SIM No. 9540607230 (recovered from the possession of accused Lal Babu at the time of his arrest) was issued in the name of Dhanno Paswan the father of accused Lal Babu @ Sanjay but was used by accused Lal Babu (Ex.PW15/I).

➢ That the SIM No. 9899695768 (recovered from the possession of accused Lal Babu at the time of his arrest) was issued in the name of Dhanno Paswan the father of accused Lal Babu @ Sanjay but was St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 140 used by accused Lal Babu (Ex.PW16/A).

➢ That as per the location chart of mobile No. 9540607230 on 30.3.2011 from 9:38:58 AM to 9:55:10 PM the user i.e. accused Lal Babu @ Sanjay was in the area covered by site No. 4040470020861 i.e. Haiderpur Tower covering the spot where the incident took place, establishing the presence of the accused Lal Babu @ Sanjay in the area (Ex.PW15/O).

(132) When the above incriminating evidence was put to the accused persons in their statements under Section 313 Code of Criminal Procedure, they have denied the same. Both Sunder Paswan and Lal Babu have not been able to explain as to how the mobile sets came into their possession and how their location was shown at the place of incident. In view of the above, I hereby hold that the electronic evidence on record is compatible to the prosecution case.

Arrest, disclosure statements of the accused and subsequent recovery:

(133) The case of the prosecution is that pursuant to their arrest the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu made their disclosure statements wherein they have admitted having committed the incident. Pursuant to the arrest of accused Lal Babu @ Sanjay got recovered the mobile phone (in broken pieces) belonging to the deceased and the accused Devender @ Bedu got recovered the tiffin bag containing St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 141 the tiffin of the deceased Buddhi Lal.

(134) The Ld. Defence Counsels for the accused persons have vehemently argued that the disclosure statement of the accused are inadmissible in evidence being hit by the provisions of Section 27 of Evidence Act. On the other hand the Ld. Addl. PP for the State has argued that the disclosure statements of the accused are admissible in evidence since it led to discovery of relevant fact.

(135) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

(136) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

1. Anything, state of things, or relation of things, or capable of being perceived by the senses,

2. Any mental condition of which any person is conscious. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 142

(137) It further provides five illustrations as to what would constitute a fact which are as under:

1. That there are certain objects arranged in a certain order in a certain place, is a fact

2. That a man heard or saw something, is a fact.

3. That a man said certain words, is a fact.

4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

5. That a man has a certain reputation, is a fact.

(138) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (139) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 143 effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"

".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.

27. The Judicial Committee had in that case to consider St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 144 how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."

"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.

This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

(140) After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 145 statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 146 appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.

(141) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 147 information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.

(142) In the said case the Hon'ble Supreme Court further went to explain that:

"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 148 be admissible in evidence......"

(143) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (144) Applying the settled principles of law to the facts of the present case it is evident that when the accused Sunder Paswan and Lal Babu @ Sanjay were arrested they made disclosure statements to the police which are Ex.PW38/C and Ex.PW38/D wherein they disclosed having committed the present incident. However, later on they made their supplementary statements regarding another incident which they had committed on the same night which was not in the knowledge of the police earlier. This incident has been independently proved by the victim in the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 149 said case namely Ramesh who has been examined as (PW33) wherein he has deposed that he was robbed of his mobile and Rs.3,500/ by three persons on the point of knife and by inflicting injuries upon him. This Ramesh was the victim of another incident of robbery which had taken place near the railway tracks before the Karnal ByePass at around 10:00 PM (which area is near the C & D Block, Shalimar Bagh and is a few minutes walking distance from the railway track) pursuant to which a separate FIR bearing No. 141/11 under Section 394/397/34 Indian Penal Code has been registered at Police Station Samaypur Badli and was not within the knowledge of the police of Shalimar Bagh and what turns on against the accused is that fact that the accused persons before this Court namely Sunder Paswan, Lal Babu and Devender have been correctly identified by Ramesh (PW33) as the assailants who had caught hold of him, robbed him of his mobile phone and cash and also inflicted injures upon him. The place where two incidents had taken place at Badli Byepass is within the vicinity of the area where the present incident took place though falling within the jurisdiction of different police stations but covered by the same mobile tower (i.e. Haiderpur Tower).

(145) The supplementary statement of accused Lal Babu @ Sanjay is Ex.PW37/A wherein he disclosed the police that after robbing the victim (before this Court) the mobile phone of the victim was taken by him whereas the tiffin bag along with the tiffin were taken by coaccused Devender @ Bedu. He further disclosed that he had given the said mobile St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 150 phone to one Hemlata a resident of Haiderpur but when he came to know that the said victim had expired then Devender @ Bedu told him to destroy the mobile phone of victim on which he took the mobile phone back from Hemlata and threw the pieces of the mobile phone into a Nala through one Gautam which pieces he could get recover. Here, I may observe that Hanuman (PW26) the cousin brother of the deceased who was staying with the deceased has independently confirmed that when the deceased used to leave the house for work, he used to carry his tiffin box in a bag and a mobile phone. The fact that the deceased Buddhi Lal was having a mobile phone make Spice has been duly corroborated and confirmed not only by the employer of Buddhi Lal namely Madan Pal (PW24) who had sold his mobile phone to the deceased but also from the other material on record in the form of testimony of Babloo (PW27) who has proved that he had provided his own SIM bearing No. 9015968416 to Buddhi Lal. Lal Babu @ Sanjay further disclosed that after having come to know from Devender @ Bedu that the victim in the present incident had expired, he took the said mobile phone back from Hemlata Tiwari who had innocently used it for two days and then returned the same to Lal Babu when he asked for the same. On return of the said mobile Lal Babu broke the same in the presence of his neighbour Gautam and thereafter asked Gautam to throw the pieces in the Nali / ditch. Gautam (PW23) who had helped the accused Lal Babu @ Sanjay in breaking the mobile phone has independently confirmed this fact that the accused Lal Babu @ Sanjay who was his St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 151 neighbour asked him to threw the pieces of mobile phone in the nali. This fact that the accused Lal Babu @ Sanjay had broken the mobile phone belonging to the deceased and had asked Gautam to dispose it off, was not in the knowledge of the police previously. Further, the place where the broken mobile phone was thrown by Gautam was again not in the knowledge of the Investigating Agency and it was for the first time that the accused Lal Babu @ Sanjay disclosed the same to them and led the police to Gautam (PW23) and when police made inquiries from Gautam he had not only pointed out the place where he had thrown the broken mobile phone but also got recovered the same. All the three pieces of mobile phone make Spice S525 (Ex.P1) have been duly identified by Gautam in the Court. Also, the entire proceedings regarding recovery of the said mobile pieces had been videographed vide CD Ex.PW21/A (which proceedings of videorecording have been proved by Narender Kumar PW21 which CD had been played in the Court confirming the presence of the accused Lal Babu @ Sanjay and recovery of broken pieces of mobile). Further, the cousin brother of the deceased Buddhi Lal namely Hanuman (PW26) and the employer of Buddhi Lal namely Madan Pal (PW24) have identified the broken pieces of the mobile phone make Spice model S525 which are collectively Ex.P1. In fact it was Madan Pal (PW24) who had sold the mobile phone to the deceased Buddhi Lal for a sum of Rs.700/ (which aspect has been duly proved by Madan Pal). Also, it was only after the stolen mobile of deceased was put on tracking that police reached to St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 152 Hemlata Tiwari and ultimately to Lal Babu and independently confirms the contents of the disclosure made by the accused.

(146) Similarly pursuant to his arrest and disclosure statement the accused Devender @ Bedu got recovered a bag containing the tiffin box from behind a stone under the flyover railway bridge at Outer Ring Road (near Haiderpur and Badli), on which tiffin bag blood stained spots were found present. The said cloth bag was bearing the words 'PREMIER SEEDS the No.1 multicut bajra' and the accused disclosed Devender @ Bedu disclosed that this tiffin bag was belonging to the deceased which was taken away by him after the incident and left the same at the above said place. The said tiffin bag was thereafter seized vide memo Ex.PW41/D. The place where the accused had thrown the tiffin bag was not within the police. It was also not within the knowledge of the police that the tiffin was hidden by the accused Devender @ Bedu and it was the accused Devender @ Bedu who himself led the police party to Outer Ring Road from where he got recovered the tiffin bag containing the tiffin of the deceased. Hanuman who is the cousin brother of the deceased has identified the said cloth bag and the tiffin which are collectively Ex.P2 as the same which the deceased used to carry with him. Here, I may observe that it has come on record that Hanuman (PW26) and the deceased Buddhi Lal were staying together and they used to cook food. It is only natural and probable under the given circumstances that Hanuman would have been aware of the tiffin and the bag in which Buddhi Lal used to regularly carry his lunch. The St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 153 FSL Reports Ex.PW20/C & Ex.PW20/D independently confirms the present of blood stains on the said tiffin lending credence to the version of the accused.

(147) What turns on the fact that accused Lal Babu @ Sanjay led the police party to Haiderpur Nala near Sanjay Camp Jhuggies from where he got recovered the mobile phone belonging to the deceased and the accused Devender @ Bedu led the police to flyover railway bridge at Outer Ring Road (near Haiderpur and Badli) from where he got recovered the cloth bag containing the tiffin box belonging to the deceased, which places were not in the knowledge of the police previously. The said pieces of the mobile phone had been duly identified by Madan Pal in judicial Test Identification Parade proceedings on 23.4.2011 and the tiffin had been duly identified by Hanuman the cousin of the deceased in the Test Identification Proceedings. The fact that accused Lal Babu @ Sanjay and Devender @ Bedu pointed out the said places and got recovered the mobile phone and tiffin of the deceased, is a strong pointer towards their guilt and I hold that their disclosure statements leading to the discovery of relevant facts is admissible in evidence.

Defence of the accused:

(148) The accused have tried to raise a defence that they have been lifted from their houses and implicated in the present case by the police only to work out the same. In support of their case the accused have St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 154 examined four witnesses. DW1 Siya Ram is stated to be the employer of the accused Sunder Paswan, DW2 Lallan Paswan is the neighbour of the accused Lal Babu @ Sanjay; DW3 Smt. Lallan Devi is the mother of accused Lal Babu @ Sanjay and DW4 is the neighbour of the accused Devender @ Bedu. All the aforesaid witnesses have deposed that the accused persons have been taken by the police from their respective houses.

(149) I have gone through the testimonies of the above witnesses. It has been admitted by the witnesses that they have not taken the issue nor made any complaints to the senior officers of the police, the Court or to any other authority regarding the accused being lifted by the local police. In fact DW1 Siya Ram claimed himself to be the employer of the accused Sunder Paswan. However, in his crossexamination he has admitted that he is doing the work of fixing the tiles and his monthly income is about Rs.

8000/ to Rs.9,000/ and he used to pay Rs.7,000/ per month to the accused Sunder Paswan as salary, which does not appear probable. All the defence witnesses are the neighbours / relatives of the accused persons and are interested witnesses. Their testimonies do not appear credible and reliable more so since there is no independent corroboration forthcoming to their testimonies and I hereby reject the same. In this background I hereby hold that the accused have not been able to prove their defence. The accused had committed two incidents on 30.3.2013:

(150) The case of the prosecution is that the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu had committed two incidents on St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 155 30.3.2011, first with Ramesh (PW33) and second with the deceased / victim Buddhi Lal. In his testimony before this Court Ramesh has deposed that he used to sell vegetables on Rehri and on 30th of a month he does not recollect, about a year ago, may be in January, when there was an India Pakistan match, he went to ease himself on the way by crossing the Railway Line at the Bypass Badli, three persons came from behind. According to him, two persons pushed him from behind on which he fell down and the third person put the knife on his throat and inflicted injuries and snatched his mobile and Rs.3,500/ after which all three assailants ran away. During this process, he had fallen down into the Nala and somehow managed to save himself and came up and took his rehri and reached his house from where his family members took him to the BJRM Hospital. He has identified the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu as his assailants. He has identified all the three accused in the Court.

He has pointed out towards the accused Devender @ Bedu as the person with a dusky complexion who had inflicted knife blows to him; the accused Sanjay @ Lal Babu as the person who had snatched his mobile and Sunder Paswan as the person who had removed the cash from his pocket. The relevant portion of the testimony of Ramesh (PW33) is as under:

"....... I have been residing at the aforementioned address in Delhi since 34 years with my wife and children and I sell vegetables on Rehri. On 30th, month I do not recollect, about a year ago, again said, it may be January on the day when there was an India Pakistan match, I St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 156 was going on my duty. I had gone to ease myself. When I go to ease myself on the way by crossing the Railway Line at the Bypass Badli, three persons came from behind. Two person pushed me from behind and I fell down, on which the third person put the knife on my throat and inflicted injuries snatched my mobile and Rs.3,500/. Thereafter, all three of them ran away. During this process, I had fallen down into the Nala. I somehow tried to save myself and came up and took my rehri and reached my house from my family members took me to the BJRM Hospital. I had seen all the three boys. They are of the age group of 2526 years of average built like me. One boy was of dusky complexion whereas other two were fair. The boy who had inflicted knife upon me was of fair complexion. The boy who had snatched my mobile phone was of dusky complexion and the third boy who had removed my cash was of clear complexion. I can identify all the three boys.

At this stage, witness has pointed out towards the accused Devender @ Vedu as the person with a dusky complexion who had inflicted knife blows to him. He has further pointed out towards the accused Sanjay @ Lal Babu as the person who had snatched his mobile and Sunder Paswan as the person who had removed the cash from his pocket. On court question : only one person was carrying a knife. At this stage, witness has pointed out towards the person Devender @ Vedu as the person who was carrying the knife and had inflicted the injuries upon him...."

(151) It is writ large from the above that the witness Ramesh (PW33) had also given the description of the assailants who had robbed him and has not only identified the accused in the Court but also attributed specific roles St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 157 to them. It is this Ramesh who had independently confirmed the presence of accused Sunder Paswan, Lal Babu and Devender in the area and the fact that at the relevant time Devender @ Bedu was carrying a knife (even eye witness in the present case namely Rajeev Kumar confirms that it was Devender @ Bedu who was carrying a knife looking like a Kirpan and had been inflicting injuries to the deceased) and the accused Sunder Paswan and Lal Babu who had removed his belongings. This witness Ramesh had even received injuries in the incident and was treated at BJRM Hospital and there is little to doubt his version.

Common intention:

(152) The case of the prosecution is that all the three accused namely Sunder Paswan, Lal Babu and Devender who are professional robbers and in furtherance of their common intention committed armed robbery upon Buddhi Lal and inflicted three knife blows on the person of Buddhi Lal thereby causing his death in pursuance to the same. On the other hand the Ld. Defence Counsels have vehemently argued that there can be no common intention attributed to the accused persons.

(153) Now, it has to be seen whether Section 34 Indian Penal Code is attracted or not. Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 158 of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34 IPC, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar.

The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 159 of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134 Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.

(154) Applying the settled principles of law to the facts of the present case it is evident that there is ample material on record to prove that all the accused persons shared common intention. It is writ large that all the three accused namely Sunder Paswan, Lal Babu and Devender had acted in consortium which is evident from the fact that prior to committing the offence in the present case they had also committed an armed robbery upon one Ramesh in the nearby area just a few minutes walking distances St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 160 from the spot of the present incident (falling within the jurisdiction of Police Station Samaypur Badli) and inflicted injuries upon him and it was thereafter that they had committed the incident on the victim Buddhi Lal (deceased). The common intention of the accused persons is established from the fact that while committing the robbery all the three accused had caught hold of the victim and threw him on the ground and gave fist and leg blows to the victim simultaneously two of them were carrying knives (i.e. accused Sunder Paswan and Devender @ Bedu) who inflicted stab injuries upon him. Further, while running from the spot they showed the weapons to persons standing i.e. Farakat Ali, Amit Giri and Rajeev Kumar standing at the outer gate of C & D Block. It is writ large from the manner in which the accused persons have committed the above offence that they acted in consortium while committing armed robbery on innocent passersbyes and while robbing them of their belongings. The fact that they were armed with deadly weapons also proves their common intention to the extent that in case of resistance either by the victim or by anyone else who came in their way they would unhesitatingly use criminal force to the extent of killing the person. This being so, although the actual stabbing is done by accused Sunder Paswan and Devender @ Bedu but all the accused are jointly liable for their acts which resulted into death of Buddhi Lal. In view of the above, I hereby hold that the prosecution has been able to prove and establish the common intention of all the three accused.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 161 FINAL CONCLUSIONS:

(155) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(156) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the evidence on record the following facts stand established: St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 162

➢ That the deceased Buddhi Lal a resident of village Madakhera, Police Station Bachhrawan, Distt, Rai Bareilly, Uttar Pradesh was working in the brush factory of Madan Pal at Bhalswa Dairy and was staying with his first cousin Hanuman at jhuggi No.388, Sanjay Camp, Haiderpur.

➢ That Buddhi Lal was using a mobile phone make SPICE No. S525 without camera of black color (IMEI no. 353481020216340) which he purchased from Madan Pal for Rs.700/ and was using the SIM No. 9015968416 which was in the name of Babloo his cousin brother.

➢ That both Buddhi Lal and Hanuman used to cook food together and Buddhi Lal used to carry his tiffin in a bag.

➢ That on 30.3.2011 Buddhi Lal left the factory of Madan Pal at about 8:00 PM and when he reached near service lane near C&D Block, Shalimar Bagh, Delhi he was robbed by the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu who also gave knife blows to Buddhi Lal.

➢ That on 30.3.2011 Rajeev Kumar a property dealer by profession and a resident of C&D Block, Shalimar Bagh was returning home on foot at about 10:00 PM while going to his house had seen the incident.

➢ That Rajeev Kumar saw three persons (accused) having caught hold of one person (victim) and the assailants were forcing the victim to lie on the ground and one person was holding a knife in his hand and another person was holding a long knife like a Kirpan.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 163

➢ That the assailants had caught hold of the victim who was lying on the ground on which he raised an alarm.

➢ That on hearing the alarm raised by Rajeev Kumar, the Security Guards of C & D Block namely Amit Giri and Farakat Ali came to the spot with dandas in their hands.

➢ That the assailants while running crossed Rajeev Kumar & Farakat Ali when it was noticed that one boy was carrying a knife with which he had inflicted injuries to the victim which he brandished the same towards Farakat Ali.

➢ That Amit Giri made a call at 100 number from the mobile phone No. 9910378590 given to him by Ganesh Goswami Incharge of Security Agency.

➢ That in the meanwhile the Beat Constable Ramphal reached the spot and shifted the injured to BJRM Hospital.

➢ That Rajeev Kumar immediately informed the President of RWA namely Sh. Satish Singhal of the incident that three persons had inflicted injuries one person who was removed to hospital by Beat Constable.

➢ That initially the identity of the deceased could not be established and it was only on 1.4.2011 when Buddhi Lal did not report to his duties that Madan Pal (employer of Buddhi Lal) sent some person from his factory to the house of Madan Lal to inquire as to why the deceased was not reporting for work.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 164

➢ That on this Hanuman got in touch with the sons of Mausi of the deceased (Babloo) who called up Kanhayya Lal the brother in law (Sala) of the deceased and came to know that deceased was not with them.

➢ That Hanuman also informed the family members of the deceased at his native village and to find out whether he had gone to his native village or not and hence when the deceased was not found with any of the relatives, they decided to lodge a missing report in respect of Buddhi Lal.

➢ That all the three relatives of the deceased i.e. Hanuman, Babloo and Kanhayya Lal have proved that together they all decided to go to the Police Station but while they were still in the way some females of the area informed them that police had put some posters in the area regarding the identification of a dead body which had been found in the area which poster was pasted on the wall of house of Bindiya. ➢ That thereafter they met Ms. Bindiya a resident of the same area but the said poster was missing. However, Bindiya having seen the picture of the dead body on the poster told them that she was in a position to identify the person on which Hanuman brought a photograph of the deceased from his Jhuggi and showed it to Bindiya when she identified the said photograph as that of the person whose picture she had seen in the posters.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 165 ➢ That Hanuman, Babloo and Kanhayya Lal went to Police Station Shalimar Bagh where they found a poster pasted on the notice board showing the dead body of Buddhi Lal.

➢ That it was only then that the Investigating Agency came to know that the deceased / victim was Buddhi Lal S/o Late Govind. ➢ That Hanuman informed the police that while leaving the house the deceased Buddhi Lal was in possession of a mobile phone make Spice model S525.

➢ That Babloo informed the police that he had given his own SIM bearing No. 9015968416 to Buddhi Lal since the SIM of Buddhi Lal was not working.

➢ That thereafter the postmortem examination on the dead body of Buddhi Lal was got conducted.

➢ That the Investigating Officer obtained the IMEI No. of the mobile set and kept the same on surveillance and it was then revealed that the same had been used by somebody.

➢ That the details of the phone numbers used in the said mobile set bearing IMEI No. 353481020216340 were obtained and it was found that a SIM bearing No. 9990607478 was operated in the mobile set which was issued in the name of Anant Kumar Tiwari.

➢ That when the police contacted the number of said Anant Kumar Tiwari they came to know that the phone was being used by his wife Hemlata Tiwari.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 166 ➢ That Hemlata Tiwari then disclosed to the police that she had purchased the said mobile phone from one Lal Babu @ Sanjay for a sum of Rs.300/ and that Lal Babu @ Sanjay who was working with her in the same factory but after two days he demanded the mobile set back on which she handed over the mobile set back to Lal Babu @ Sanjay but after about one / two days Lal Babu told her that the mobile set had been broken.

➢ That on 7.4.2011 on the basis of a secret information the accused Sunder Paswan and Lal Babu were apprehended by the police and were also identified by the security guards Amit Giri and Farakat Ali as the assailants who gave knife blows on a person in front of the outer gate of C & D Block gate on 30.03.2011 at about 10.00PM alongwith their third assailants (though in the Court they denied the identity).

➢ That from the personal search of accused Sunder Paswan one buttondar knife was recovered from his right pocket of his pant. ➢ That pursuant to his disclosure statement the accused Lal Babu @ Sanjay got recovered the three pieces of mobile phone of Spice from a Nali/ditch which proceeding were also videographed. ➢ That the accused Lal Babu @ Sanjay also got recovered one mobile phone of make NOKIA 1616 with SIM of Airtel from the "Taand" of the jhuggi at the first floor which he disclosed belonged to another victim whom they had robbed on the point of knife on 30.3.2011. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 167 ➢ That on 25.06.2011 on the basis of a secret information the accused Devender @ Bedu was apprehended from the Outer Ring Road area after which he was arrested and his disclosure statement was recorded wherein he admitted his involvement in the present case. ➢ That pursuant to his disclosure statement the accused Devender got recovered one tiffin bag containing tiffin box of the deceased near the stone under the flyover and some blood stains were found on the tiffin bag belonging to the deceased (confirmed by FSL Report). ➢ That at the time of the incident the deceased Buddhi Lal was having a mobile set make Spice (S525) bearing IMEI No.353481020216340 with SIM No. 9015968416 which was in the name of Babloo (which mobile set was robbed).

➢ That the above mobile set make Spice (S525) bearing IMEI No. 353481020216340 originally belonged to Madan Pal who sold it to Buddhi Lal earlier along with accessories which Buddhi Lal was using ever since.

➢ That the SIM bearing No. 9015968416 in the above mobile set was in the name of his cousin Babloo which Babloo had given to Buddhi Lal.

➢ That Hemlata Tiwari was using the SIM No. 9990607478 which was issued in the name of her husband Anant Kumar Tiwari and on 31.3.2011 she had inserted her SIM on the mobile phone bearing IMEI No. 353481020216340 (mobile set belonging to the deceased) St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 168 which mobile set she had purchased from accused Lal Babu @ Sanjay whom she knew because Lal Babu @ Sanjay was working with her in the same factory of Ashok Aggarwal at 645, Mahavira Gali also called Double Transformer Wali Gali, Haiderpur. ➢ That Hemlata Tiwari had used the said mobile set till 3.4.2011 (confirmed from Call Detail Records).

➢ That Lal Babu took the mobile set bearing IMEI No. 353481020216340 back from Hemlata Tiwari and thereafter did not return the same on the pretext that it was broken whereas he actually broke the same on instructions of accused Devender @ Bedu in an attempt to destroy it having come to know of death of the victim. ➢ That at the time of his arrest the accused Sunder Paswan was found in possession of mobile set make Sony Ericson having IMEI No. 356573011063647 with SIM No.9990788582 which is in the name of accused Sunder Paswan.

➢ That as per the location chart of mobile No. 990788582 on 30.3.2011 from 10:02:14 hours to 10:30:38 hours the user i.e. accused Sunder Paswan was in the area covered by site No. 4040470020861 i.e. Haiderpur Tower which covers the spot where the incident took place, establishing the presence of the accused in the area. ➢ That at the time of his arrest the accused Sanjay @ Lal Babu was found in possession of a mobile phone make Nicola NX 500 (double St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 169 SIM) having IMEI No. 352948045023895 with SIM No. 9540607230 and IMEI No. 352948045028895 with SIM No. 9899695768.

(157) The medical evidence on record shows that there were three stab injures on the body of the deceased and death in the present case was due to septicemia consequent upon stab wound over chest via injury no.3 [incised stab wound (3.5 x 0.5) cm, organ deep, over right side of chest over posterior axillary line 9 cm below right nipple], the injuries were caused by St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 170 single sharp edged weapon and Injury No.3 is sufficient to cause death in ordinary cause of nature. The medical evidence is compatible to the prosecution case and corroborates the testimony of the eye witness Rajeev Kumar who had seen the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu inflicting stab injuries to the deceased. Further, the forensic evidence is compatible to the prosecution and shows the presence of human blood on the clothes of the deceased and the from the exhibits (concrete) lifted from the spot thereby conclusively corroborating and establishing the oral testimonies of Rajeev Kumar, Amit Giri and Farakat Ali that the stabbing incident had in fact taken place on the stack of sand at the spot. The eye witness Rajeev Kumar has not only identified all the accused Sunder Paswan, Lal Babu and Devender @ Bedu as the assailants of the deceased but has also proved that first all the accused Sunder Paswan, Lal Babu and Devender @ Bedu pushed the deceased to the ground and gave his fist and leg blows and thereafter stabbed him. It stands confirmed that at the time of the incident the accused Sunder Paswan was holding a knife in his hand and the accused Devender @ Bedu was holding a long knife look like Kirpan which was also shown to them (i.e. himself, Farakat Ali & Amit Giri) when they raised an alarm and the accused while running away from the spot crossed the place i.e. Gate of C & D Block where they were standing.

(158) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 171 conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.

(159) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. (160) In view of the above I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Sunder Paswan and Devender @ Bedu of having committed armed robbery upon the victim Buddhi Lal and inflicted injuries upon him for which I hereby hold both the accused Sunder Paswan and Devender @ Bedu guilty of the offence under Sections 394 read with 397/34 Indian Penal Code. In so far as the accused Lal Babu @ Sanjay is concerned he St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 172 is held guilty of the offence under Section 394/34 Indian Penal Code. Further, it has been established that the accused had inflicted three knife blows on the victim on vital part i.e. chest thereby establishing the necessary knowledge attributed to the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu as contemplated under Section 300 Indian Penal Code to cause the death of Buddhi Lal for which the accused are also held guilty for the offence under Section 302/34 Indian Penal Code. The accused Sunder Paswan is also held guilty for the offence under Section 25/27/54/59 of Arms Act. All the accused are accordingly convicted.

(161) Be listed for arguments on sentence on 9.4.2013.

Announced in the open court                                               (Dr. KAMINI LAU)
Dated: 3.4.2013                                                          ASJII(NW)/ ROHINI




St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh                         Page No. 173

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session case No. 38/2011 Unique Case ID No.: 02404R0173592011 State Vs. (1) Sunder Paswan S/o Upender Paswan R/o Jhuggi No. 107, Mazdoor Nirman Camp, Haiderpur, Delhi (Convicted) (2) Lal Babu @ Sanjay S/o Dhanu Paswan R/o Jhuggi No. 226, Sanjay Camp Haiderpur, Delhi (Convicted) (3) Devender @ Bedu S/o Raj Pal R/o Jhuggi No. 100, Sanjay Camp Haiderpur, Delhi (Convicted) FIR No.: 115/2011 Police Station: Shalimar Bagh Under Sections: 394/397/302/411/34 IPC & 25/54/59 of Arms Act Date of conviction: 3.4.2013 Arguments concluded on: 12.4.2013 Date of sentence: 16.4.2013 St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 174 APPEARANCE:

Present: Sh. Sukhbeer Singh, Additional Public Prosecutor for the State.

All the three convicts namely Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu in Judicial Custody with Sh.

Rajneesh Antil Advocates / Amicus Curiae.

ORDER ON SENTENCE:

As per allegations, on 30.3.2011 at about 10 PM at C&D Block, Outer Gate near Badli Mor, Shalimar Bagh all the three accused namely Sunder Paswan, Sanjay @ Lal Babu and Devender @ Bedu in furtherance of their common intention committed robbery of mobile phone make Spice S525 and voluntarily caused hurt to Buddhi Lal. It has also been alleged that all the accused i.e. Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu while committing robbery inflicted three knife blows on the person of Buddhi Lal including two on his chest and caused his death which knife was recovered from the possession of accused Sunder Paswan at the time of his arrest.

On the basis of the testimonies of the various witnesses examined by the prosecution particularly the eye witnesses, Rajeev Kumar, Farakat Ali & Amit Giri and also on the basis of the medical, forensic, electronic and circumstantial evidence on record, this Court vide a detail judgment dated 3.4.2013 held the accused Sunder Paswan and Devender St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 175 @ Bedu guilty of the offence under Sections 394 read with 397/34 Indian Penal Code. In so far as the accused Lal Babu @ Sanjay is concerned he has been held guilty of the offence under Section 394/34 Indian Penal Code. Further, all the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu have been held guilty for the offence under Section 302/34 Indian Penal Code. The accused Sunder Paswan has also been held guilty for the offence under Section 25/27/54/59 of Arms Act.

Vide the above judgment this Court has observed that it stood established that deceased Buddhi Lal a resident of village Madakhera, Police Station Bachhrawan, Distt, Rai Bareilly, Uttar Pradesh was working in the brush factory of Madan Pal at Bhalswa Dairy and was staying with his first cousin Hanuman at jhuggi No.388, Sanjay Camp, Haiderpur; that Buddhi Lal was using a mobile phone make SPICE No. S525 without camera of black color (IMEI no. 353481020216340) which he purchased from Madan Pal for Rs.700/ and was using the SIM No. 9015968416 which was in the name of Babloo his cousin brother; that both Buddhi Lal and Hanuman used to cook food together and Buddhi Lal used to carry his tiffin in a bag; that on 30.3.2011 Buddhi Lal left the factory of Madan Pal at about 8:00 PM and when he reached near service lane near C&D Block, Shalimar Bagh, Delhi he was robbed by the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu who also gave knife blows to Buddhi Lal; that on 30.3.2011 Rajeev Kumar a property dealer by profession and a resident of St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 176 C&D Block, Shalimar Bagh was returning home on foot at about 10:00 PM while going to his house had seen the incident; that Rajeev Kumar saw three persons (accused) having caught hold of one person (victim) and the assailants were forcing the victim to lie on the ground and one person was holding a knife in his hand and another person was holding a long knife like a Kirpan; that the assailants had caught hold of the victim who was lying on the ground on which he raised an alarm; that on hearing the alarm raised by Rajeev Kumar, the Security Guards of C & D Block namely Amit Giri and Farakat Ali came to the spot with dandas in their hands; that the assailants while running crossed Rajeev Kumar & Farakat Ali when it was noticed that one boy was carrying a knife with which he had inflicted injuries to the victim which he brandished the same towards Farakat Ali; that Amit Giri made a call at 100 number from the mobile phone No. 9910378590 given to him by Ganesh Goswami Incharge of Security Agency; that in the meanwhile the Beat Constable Ramphal reached the spot and shifted the injured to BJRM Hospital; that Rajeev Kumar immediately informed the President of RWA namely Sh. Satish Singhal of the incident that three persons had inflicted injuries one person who was removed to hospital by Beat Constable.

It has also been established that initially the identity of the deceased could not be established and it was only on 1.4.2011 when Buddhi Lal did not report to his duties that Madan Pal (employer of Buddhi Lal) sent some person from his factory to the house of Madan Lal to inquire as St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 177 to why the deceased was not reporting for work; that on this Hanuman got in touch with the sons of Mausi of the deceased (Babloo) who called up Kanhayya Lal the brother in law (Sala) of the deceased and came to know that deceased was not with them; that Hanuman also informed the family members of the deceased at his native village and to find out whether he had gone to his native village or not and hence when the deceased was not found with any of the relatives, they decided to lodge a missing report in respect of Buddhi Lal; that all the three relatives of the deceased i.e. Hanuman, Babloo and Kanhayya Lal have proved that together they all decided to go to the Police Station but while they were still in the way some females of the area informed them that police had put some posters in the area regarding the identification of a dead body which had been found in the area which poster was pasted on the wall of house of Bindiya; that thereafter they met Ms. Bindiya a resident of the same area but the said poster was missing. However, Bindiya having seen the picture of the dead body on the poster told them that she was in a position to identify the person on which Hanuman brought a photograph of the deceased from his Jhuggi and showed it to Bindiya when she identified the said photograph as that of the person whose picture she had seen in the posters.

Further, it has been established that Hanuman, Babloo and Kanhayya Lal went to Police Station Shalimar Bagh where they found a poster pasted on the notice board showing the dead body of Buddhi Lal; that it was only then that the Investigating Agency came to know that the St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 178 deceased / victim was Buddhi Lal S/o Late Govind; that Hanuman informed the police that while leaving the house the deceased Buddhi Lal was in possession of a mobile phone make Spice model S525; that Babloo informed the police that he had given his own SIM bearing No. 9015968416 to Buddhi Lal since the SIM of Buddhi Lal was not working; that thereafter the postmortem examination on the dead body of Buddhi Lal was got conducted.

It has also been established that the Investigating Officer obtained the IMEI No. of the mobile set and kept the same on surveillance and it was then revealed that the same had been used by somebody; that the details of the phone numbers used in the said mobile set bearing IMEI No. 353481020216340 were obtained and it was found that a SIM bearing No. 9990607478 was operated in the mobile set which was issued in the name of Anant Kumar Tiwar; that when the police contacted the number of said Anant Kumar Tiwari they came to know that the phone was being used by his wife Hemlata Tiwari; that Hemlata Tiwari then disclosed to the police that she had purchased the said mobile phone from one Lal Babu @ Sanjay for a sum of Rs.300/ and that Lal Babu @ Sanjay who was working with her in the same factory but after two days he demanded the mobile set back on which she handed over the mobile set back to Lal Babu @ Sanjay but after about one / two days Lal Babu told her that the mobile set had been broken; that on 7.4.2011 on the basis of a secret information the accused Sunder Paswan and Lal Babu were apprehended by the police and were also St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 179 identified by the security guards Amit Giri and Farakat Ali as the assailants who gave knife blows on a person in front of the outer gate of C & D Block gate on 30.03.2011 at about 10.00PM alongwith their third assailants (though in the Court they denied the identity); that from the personal search of accused Sunder Paswan one buttondar knife was recovered from his right pocket of his pant; that pursuant to his disclosure statement the accused Lal Babu @ Sanjay got recovered the three pieces of mobile phone of Spice from a Nali/ditch which proceeding were also videographed; that the accused Lal Babu @ Sanjay also got recovered one mobile phone of make NOKIA 1616 with SIM of Airtel from the "Taand" of the jhuggi at the first floor which he disclosed belonged to another victim whom they had robbed on the point of knife on 30.3.2011; that on 25.06.2011 on the basis of a secret information the accused Devender @ Bedu was apprehended from the Outer Ring Road area after which he was arrested and his disclosure statement was recorded wherein he admitted his involvement in the present case; that pursuant to his disclosure statement the accused Devender got recovered one tiffin bag containing tiffin box of the deceased near the stone under the flyover and some blood stains were found on the tiffin bag belonging to the deceased (confirmed by FSL Report).

Further, it has been established that at the time of the incident the deceased Buddhi Lal was having a mobile set make Spice (S525) bearing IMEI No.353481020216340 with SIM No. 9015968416 which was in the name of Babloo (which mobile set was robbed); that the above St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 180 mobile set make Spice (S525) bearing IMEI No. 353481020216340 originally belonged to Madan Pal who sold it to Buddhi Lal earlier along with accessories which Buddhi Lal was using ever since; that the SIM bearing No. 9015968416 in the above mobile set was in the name of his cousin Babloo which Babloo had given to Buddhi Lal; that Hemlata Tiwari was using the SIM No. 9990607478 which was issued in the name of her husband Anant Kumar Tiwari and on 31.3.2011 she had inserted her SIM on the mobile phone bearing IMEI No. 353481020216340 (mobile set belonging to the deceased) which mobile set she had purchased from accused Lal Babu @ Sanjay whom she knew because Lal Babu @ Sanjay was working with her in the same factory of Ashok Aggarwal at 645, Mahavira Gali also called Double Transformer Wali Gali, Haiderpur; that Hemlata Tiwari had used the said mobile set till 3.4.2011 (confirmed from Call Detail Records); that Lal Babu took the mobile set bearing IMEI No. 353481020216340 back from Hemlata Tiwari and thereafter did not return the same on the pretext that it was broken whereas he actually broke the same on instructions of accused Devender @ Bedu in an attempt to destroy it having come to know of death of the victim; that at the time of his arrest the accused Sunder Paswan was found in possession of mobile set make Sony Ericson having IMEI No. 356573011063647 with SIM No. 9990788582 which is in the name of accused Sunder Paswan; that as per the location chart of mobile No. 990788582 on 30.3.2011 from 10:02:14 St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 181 hours to 10:30:38 hours the user i.e. accused Sunder Paswan was in the area covered by site No. 4040470020861 i.e. Haiderpur Tower which covers the spot where the incident took place, establishing the presence of the accused in the area; that at the time of his arrest the accused Sanjay @ Lal Babu was found in possession of a mobile phone make Nicola NX 500 (double SIM) having IMEI No. 352948045023895 with SIM No. 9540607230 and IMEI No. 352948045028895 with SIM No. 9899695768; that the SIM No. 9540607230 (recovered from the possession of accused Lal Babu at the time of his arrest) was issued in the name of Dhanno Paswan the father of accused Lal Babu @ Sanjay but was used by accused Lal Babu; that the SIM No. 9899695768 (recovered from the possession of accused Lal Babu at the time of his arrest) was issued in the name of Dhanno Paswan the father of accused Lal Babu @ Sanjay but was used by accused Lal Babu; that as per the location chart of mobile No. 9540607230 on 30.3.2011 from 9:38:58 AM to 9:55:10 PM the user i.e. accused Lal Babu @ Sanjay was in the area covered by site No. 4040470020861 i.e. Haiderpur Tower covering the spot where the incident took place, establishing the presence of the accused Lal Babu @ Sanjay in the area.

It has been observed by this Court that the medical evidence on record indicates that there were three stab injures on the body of the deceased and death in the present case was due to septicemia consequent upon stab wound over chest via injury no.3 [incised stab wound (3.5 x 0.5) St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 182 cm, organ deep, over right side of chest over posterior axillary line 9 cm below right nipple], the injuries were caused by single sharp edged weapon and Injury No.3 is sufficient to cause death in ordinary cause of nature. It has been held that the medical evidence is compatible to the prosecution case and corroborates the testimony of the eye witness Rajeev Kumar who had seen the accused Sunder Paswan, Lal Babu @ Sanjay and Devender @ Bedu inflicting stab injuries to the deceased. Further, the forensic evidence has been held to be compatible to the prosecution and shows the presence of human blood on the clothes of the deceased and the from the exhibits (concrete) lifted from the spot thereby conclusively corroborating and establishing the oral testimonies of Rajeev Kumar, Amit Giri and Farakat Ali that the stabbing incident had in fact taken place on the stack of sand at the spot. It has been further observed by this Court that the eye witness Rajeev Kumar has not only identified all the accused Sunder Paswan, Lal Babu and Devender @ Bedu as the assailants of the deceased but has also proved that first all the accused Sunder Paswan, Lal Babu and Devender @ Bedu pushed the deceased to the ground and gave his fist and leg blows and thereafter stabbed him. It stands confirmed that at the time of the incident the accused Sunder Paswan was holding a knife in his hand and the accused Devender @ Bedu was holding a long knife look like Kirpan which was also shown to them (i.e. himself, Farakat Ali & Amit Giri) when they raised an alarm and the accused while running away from the spot crossed the place i.e. Gate of C & D Block where they were standing. St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 183

Heard arguments on the point of sentence. The convict Sunder Paswan is stated to be aged about 23 years having a family comprising of father, mother, four younger brothers, wife and two sons. He is third class pass and is a Driver by profession.

The convict Lal Babu @ Sanjay is stated to be aged about 23 years having a family comprising of father, mother, two married sisters, one elder married brother, one younger brother and wife. He is totally illiterate and was doing a private job in a factory of spices.

The convict Devender @ Bedu is stated to be aged about 30 years having a family comprising of father, mother, two married sisters, one elder married brother, one younger brother and wife. He is totally illiterate and was doing a private job in a factory of spices. The Ld. Counsels for the convicts have vehemently argued that though the convicts Sunder Paswan and Lal Babu @ Sanjay were involved in another case bearing FIR No. 141/11, under Sections 394/397/34 IPC, Police Station Samaypur Badli but they have been acquitted in the said case. It is prayed that keeping in view the family background of the convicts a lenient view be taken against them.

On the other hand the Ld. Addl. PP for the State has pointed out that though the convicts Sunder Paswan and Lal Babu @ Sanjay are not involved in any other case, yet as per the Investigating Officer the convict Devender @ Bedu is involved in six other cases, details of which are as under:

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 184

1. FIR No.302/03, PS Shalimar Bagh, under Section 25 Arms Act wherein he has been convicted.

2. FIR No. 254/03, PS Samaypur Badli, under Section 302/201 IPC which is pending trial.

3. FIR No. 494/03, PS Shalimar Bagh, under Section 392/34 IPC wherein he has been acquitted.

4. FIR No. 383/10, PS Shalimar Bagh, under Sections 325/341/ 506/34 IPC which is pending trial.

5. FIR No. 17/11, PS Prashant Vihar, under Section 25/54/59 of Arms Act which is pending trial.

6. FIR No. 508/2010, PS Prashant Vihar, under Section 356/397/411 IPC wherein he has been convicted.

The Ld. Additional Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts Sunder Paswan, Sanjay @ Lal Babu and Devender @ Bedu. It is also stated that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.

I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 185 the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.

The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:

(a) Where the murder has been committed after previous planning and involves extreme brutality; or

(b) Where the murder involves exceptional depravity.

The mitigating circumstances which were mentioned in that judgment were:

(a) That the offence was committed under the influence of extreme mental or emotional disturbance;

(b) The age of the accused. If the accused is young St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 186 or old, he shall not be sentenced to death;

(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;

(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;

(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;

(f) That the accused acted under the duress or domination of another person; and

(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:

(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.

(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 187 Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factor as pointed out by the Ld. counsel is that the convicts Sunder Paswan, Sanjay @ Lal Babu and Devender @ Bedu are young boys. The aggravating factors are that the murder of an elderly man Buddhi Lal who was a poor factory worker, had been committed in cold blood only for money without any instigation. There was no previous animosity between the convicts and the victim and the intent was solely monetary gain. In fact the convict Devender @ Bedu is a desperate criminal involved in six other cases including a case under Section 302 IPC and has already been convicted in two other cases. The details of the involvements of the convict Devender @ Beduv show how he has graduated in crime over the years from being a local criminal involved in petty thefts and snatchings to a professional robber and killer. For the convicts life has no value and they do not hesitate to take law in his hands and ruthlessly silences their victims at slightest resistance as has happened in the present case. Though no previous criminal involvements of the convicts Sunder Paswan and Lal Babu @ Sanjay have been reported yet from the manner in which the offence has been committed in consortium and conjointly by the convicts proves that they are all a part of a gang of robbers headed by Devender @ Bedu who go prowling in the area at night and unhesitatingly rob innocent persons of their belongings so much so that they ruthlessly silence any victim who may offer slightest of resistance.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 188

The Courts of law cannot ignore the conditions prevailing in the Country where the law and order situation has deteriorated and worsened in the resent past. Young persons robbing innocent victims by putting them in fear of death with unhesitant and indiscriminate use of dangerous weapons on them whether or not they offer any resistance, thereby spreading terror in the society and adversely affecting the social order and faith of the people in the system. There cannot be a disconnect between the sentences so imposed by the Court on such persons involved in criminal activities and the aspirations of those who have faith in the Justice System. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463). No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced.

After having considered the submissions made before me and the various aggravating and mitigating factors, I am of a view that the case in hand certainly does not fall within the category of Rarest of Rare or St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 189 least even in category of Rare Case. I therefore, award the following sentences to the convict Sunder Paswan:

1. For the offence under Sections 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.50,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Six Months. The entire fine of Rs.50,000/ (Rs. Fifty Thousand) if recovered, shall be given to the family of the deceased Buddhi Lal as compensation under Section 357 Cr.P.C.

2. For the offence under Sections 394 r/w 397 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One week.

3. For the offence under Section 25/27/54/59 of Arms Act the convict is sentenced to Rigorous Imprisonment for a period of Five Years and fine for a sum of Rs.5,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Week.

All the sentences shall run concurrently.

St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 190 Further, I award the following sentences to the convict Devender @ Bedu:

1. For the offence under Sections 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.50,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Six Months. The entire fine of Rs.50,000/ (Rs.

Fifty Thousand) if recovered, shall be given to the family of the deceased Buddhi Lal as compensation under Section 357 Cr.P.C.

2. For the offence under Sections 394 r/w 397 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One week.

Both the sentences shall run concurrently.

In so far as the convict Lal Babu @ Sanjay is concerned, I award the following sentences to him:

1. For the offence under Sections 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.50,000/. In default of payment of fine the convict shall further St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 191 undergo Simple Imprisonment for a period of Six Months. The entire fine of Rs.50,000/ (Rs. Fifty Thousand) if recovered, shall be given to the family of the deceased Buddhi Lal as compensation under Section 357 Cr.P.C.

2. For the offence under Sections 394 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Five years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Week.

Both the sentences shall run concurrently.

Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial, as per rules.

The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.

One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh Page No. 192 their jail warrant.

File be consigned to Record Room.

Announced in the open court                                                 (Dr. KAMINI LAU)
Dated: 16.04.2013                                                         ASJ (NW)II: ROHINI




St. Vs. Sunder Paswan & Ors., FIR No. 115/11, PS Shalimar Bagh                             Page No. 193

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Delhi District Court

State vs . (1) Sunder Paswan on 16 April, 2013