Delhi District Court
State vs . : 1) Om Parkash on 10 May, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 619/17
FIR No. : 242/17
U/s : 302/308/34 IPC
P.S. : S.B. Dairy
State Vs. : 1) Om Parkash
S/o Sh. Shiv Raj
R/o C-7/25, Shahbad Dairy,
Delhi.
2) Vicky
S/o Sh. Om Prakash
R/o C-7/25, Shahbad Dairy,
Delhi.
3) Vishal
S/o Sh. Om Prakash
R/o C-7/25, Shahbad Dairy,
Delhi.
4) Manoj (Proclaimed Offender)
Offence complained of : 302/308/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 13.10.2017
Date of Judgment : 10.05.2018
JUDGMENT
1. On 06.05.2017 at about 11:00 pm Vicky S/o Sh. Om Parkash, Vishal S/o Sh. Om Parkash and Manoj were taking liquor near the toilet block of C-block Shahbad Dairy. Raju resident of C-10/45 Shahbad Dairy Delhi was working in the State Vs. Om Parkash SC NO:619/17 1 Govt. Toilet C-Block Shahbad Dariy. Raju asked them not to drink there on which they all started abusing him and went away saying, "Tujhey dekh lenge. At about 1:00 am on 07.05.2017 when Raju reached in front of his house he saw Vicky, Vishal and Manoj standing in the street having lathie and dandas in their hands. They all said, "ab tujhey sabak sikhate hain". In the meanwhile Om Parkash father of Vishal and Vicky also came there. Om parkash said, "Isey khatam karo, on this Vishal, Vicky and Manoj started hitting him with lathies and dandas. Vishal hit on his head with a lathie in order to kill him. Deepak S/o Sh. Laxman who was residing with Raju for the last two years and was his nephew in relation came forward to save him on which Om Parkash said, " Issey bhi maro". Vishal and Vicky also gave beatings to Deepak with lathies. Deepak fell down there. Deepak was suffering with jaundice and was under treatment for the 5-6 months prior to the incident. This fact was known to all the neighbours including accused persons. Raju was taken to hospital by the police where he was got medically examined. Deepak was taken to BSA hospital in the morning at about 9:20 am where he was declared brought dead. On the statement of Raju FIR was recorded. Initially accused Om Parkash and Vicky were arrested. After completion of investigation the charge sheet was filed. Ld. MM after State Vs. Om Parkash SC NO:619/17 2 complying with the provisions of section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
2. Later on accused Vishal was also arrested and the supplementary charge sheet was filed. Accused Manoj could not be arrested and was declared Proclaimed Offender. Ld. MM after complying with the provision os section 208 Cr.PC committed the case to the Sessions Court as the offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
3. Both the files were received in this court. All the accused were charged for the offence u/s 302 r/w 34 IPC & 308 r/w 34 IPC to which they pleaded not guilty and claimed trial.
4. Thereafter, the case was fixed for prosecution evidence.
5. Prosecution in order to prove its case examined 27 witnesses.
6. Laxman was examined as PW-1. He is the father of Deepak. He deposed that on 07.05.2017 Nirmala informed him on telephone that his son Deepak had been murdered. He went to the mortuary of BSA hospital where he identified the dead body of his son and received the same after post State Vs. Om Parkash SC NO:619/17 3 mortem vide memo Ex.PW1/A.
7. He was cross-examined by Ld. APP wherein he denied he suggestion that Nirmala told him that on 07.05.2017 at about 1:00 am Om Parkash, Vicky, Vishal and Manoj all neighbours gave beatings to Deepak with lathies and dandas due to which he had died. He was confronted with his earlier statement Ex.PW1/A.
8. During cross-examination by the defence he stated that he did not marry his son with Nirmala. Marriage of Deepak was fixed but he started living with Nirmala against their wishes. Earlier Nirmala was married in Madi Pur and was having 3 children from that marriage. He does not know where Nirmala is residing at present.
9. Ct. Naveen was examined as PW-2. He proved the scaled site plan of the place of occurrence as Ex.PW2/A.
10. During cross-examination he stated that SI Mahesh did not disclose the place where injured, who subsequently died was found lying.
11. Smt. Nirmala was examined as PW-3. She deposed that on 06.05.2017 at about 11:30 pm her husband returned home from his duty. He used to work as driver in private capacity. After taking dinner her husband went to sleep. She also went to sleep. After some time she heard the noise coming from the street. Her husband opened the door and State Vs. Om Parkash SC NO:619/17 4 came out. He saw 5 persons. There were five persons in the street. She also got up and asked her husband to come inside. Her husband told her that he is coming soon. Thereafter she came inside the house. Her husband asked her to give him water and he sat down in the street. At about 12:15 am her husband asked those 5 persons i.e. Om Parkash, Vicky, Vishal, Manoj and Raju not to raise alarm. They were all armed with danda. Vishal and Vicky were also having iron rods. All the accused persons assaulted her husband. After sustaining injuries her husband fell down. Thereafter, her husband called her. When she came out they also assaulted her and Raju their landlord. Mother of Vishal and Vicky also came out from her house and started beating her. She made a call at 100 number from her mobile phone No.9250801131 PCR van came and took her husband Raju and her to BSA hospital where her husband was declared dead. The witness was cross examined by Ld. APP wherein she admitted that her husband was suffering with slight jaundice at the time of incident.
12. During cross-examination by Ld. Defence counsel for all the accused persons she was confronted with her statement where it is not found recorded that her husband opened the door and went out after hearing the noise or that there were five persons in the street or that she also came State Vs. Om Parkash SC NO:619/17 5 outside the house or that her husband asked for water or thereafter she went inside the house. She was also confronted with her statement where it was not found mentioned that all the five accused gave beatings to her husband with lathies and dandas due to which he fell down on the ground. However, it is mentioned that this fact was told to her by her husband Deepak. She was also confronted with her statement where it was not found mentioned that all the accused persons and their mother also gave beatings to her and that she made a call at 100 number. She stated that she accompanied her husband to the hospital in PCR Van. They reached hospital at about 12:45 am. In the hospital after examination doctor declared her husband as brought dead. Raju was also present in the hospital at that time. Her statement was recorded by the police at 3:30 am in the hospital. She was married with deceased Deepak in 2008 in Shiv Mandir Madi Pur. They were blessed with a son in 2009. Before marrying Deepak she was married but she does not want to disclose his name. She was not having any child from her earlier marriage. She had not obtained divorce from her earlier husband. She denied the suggestion that she had not witnessed the incident or that she was not present at the house on the day of incident. She also denied the suggestion that she had not taken her husband in PCR van to the State Vs. Om Parkash SC NO:619/17 6 hospital at 12:45 am. She denied the suggestion that her husband was taken to the hospital at about 9:00 am on 07.07.2017 when he was declared dead.
13. ASI Anil Kumar was examined as PW-4. On 06.05.017 he was working as duty officer from 12 midnight to 8 am. On 07.05.2017 at about 7:15 am he received rukka brought by HC Bhram pal sent by ASI Rajbir. On the basis of rukka he got registered the FIR through CEPA Computer operator. He proved the computer generated copy of FIR as Ex.PW4/A. He sent the copy of FIR and original rukka to SI Mahesh through HC Braham Pal he made endorsement on the rukka which is Ex.PW4/B. He proved the certificate u/s 65B Evidence Act which is Ex.PW4/C. Nothing material came on record to discredit the witness during cross-examination.
14. Ct. Amit Tomar was examined as PW-5. He deposed that on the night of 06.05.2017 he was posted in CPCR PHQ. After 12 midnight he received information from a lady that some persons were giving beatings to her father and brother. He filled up the PCR form and proved the copy of the same as Ex.PW5/A.
15. During cross-examination he stated that he did not ask the name of the caller nor she told her name.
16. Dr. Neeta Kumari from Dr.BSA Hospital was examined as PW-6. She deposed that on 07.05.2017 patient Raju was State Vs. Om Parkash SC NO:619/17 7 brought by HC Pape Goda with alleged history of physical assault at about 11 pm as told by patient himself. Smell of alcohol positive. On local examination she found lacerated wound on left side of forehead 4 cm x1 cm x 1cm, lacerated wound right lower leg 3 cm x 1 cm x 0.5 cm, abrasion left lower leg 2 cm x 1 cm. The patient was examined by Dr. Mayur Jr. resident under her supervision. She proved the MLC as Ex.PW6/A.
17. During cross-examination she denied the suggestion that there was no injury on the body of the patient or that false MLC was prepared.
18. Dr. Lokesh was examined as PW-7. He deposed that the patient was referred to SR surgery. He examined the patient and perused the MLC. As there was hitory of loss of consciousness and injury on the forehead and skull he referred the patient to neurosurgery SR vide endorsement Ex.PW7/A on MLC Ex.PW6/A.
19. During cross-examination he deposed that he referred the patient to neurosurgery SR within one hour of patient coming to the hospital. He denied the suggestion that he did not refer the patient to SR neurosurgery.
20. Dr. Mukesh Kumar was examined as PW-8. On 08.05.2017 he along with Dr. Vijay Dhankar conducted post mortem on the body of Deepak Son of Laxman. After State Vs. Om Parkash SC NO:619/17 8 conducting the post mortem they opined that death was due to hemorrhagic shock consequent to injury to the abdomen and scortum. All injuries were fresh antemortem in nature. Injury No.1 and 2 were likely to have been caused by elongated blunt object like lathie, danda, pipe, rod etc. injury No.3 could be caused by blunt force by lathie, danda, pipe, rod etc. injury No.4 could be caused by blunt force. Injury No.2 & 3 were sufficient to cause death in ordinary course of nature. Viscera was preserved to rule out any intoxication at the time of death along with blood on gauze. The clothes were sealed and handed over to the police. He proved the post mortem report as Ex.PW8/A. He has also perused the FSL result No.2017/C-5203 dt. 30.08.2017 wherein ethyle alcohol 29.50 mg per 100 ml of blood was found. After perusal of report he opined that the cause of death remains the same as mentioned in the post mortem repot.
21. On 16.09.2017 two parcels along with the post mortem report were received for subsequent opinion. Both the parcels were found containing wooden sticks. After examining the wooden sticks it was opined that injuries as mentioned in the post mortem report can be caused by weapon, wooden sticks examined. The subsequent opinion is proved as Ex.PW8/B. Nothing material came on record to discredit the witness during cross-examination. State Vs. Om Parkash SC NO:619/17 9
22. Ct. Ajit Singh was examined as PW-9. On 07.05.2017 he was posted at PS: Shahbad Dairy and was working as DD writer. At 1:02 am he received information from control room wireless operator regarding somebody giving beatings to the father and brother of the caller at C-3/45 near Seema Dairy, Shahbad Dairy. He conveyed the same to ASI Rajbir on telephone for taking necessary action. He recorded DD No.7B and proved the copy of the same as Ex.PW9/A.
23. During cross-examination he denied the suggestion that he is deposing falsely.
24. HC Braham Pal was examined as PW-10. He deposed that on the intervening night of 06-07.05.2017 he was posted at PS: Shahbad Dairy and was on emergency duty. On receipt of information vide DD No.7B Ex.PW9/A they went near H.No. C-10/45 Shahbad Dairy. There they came to know that Injured Raju has been removed by PCR Van to BSA hospital. They reached BSA hospital where Raju was found admitted. IO recorded statement of Raju and made endorsement on the same. He took rukka at about 6:50 am for registration of FIR. Duty officer registered the FIR and handed over copy of FIR and original rukka to him to hand over to SI Mukesh Kumar for further investigation. He handed over the copy of FIR and original rukka to SI Mukesh Kumar.
State Vs. Om Parkash SC NO:619/17 10
25. During cross-examination by the defence he stated that they were present in the police station when they received information vide DDNo.7B at about 1 am within 15 minutes they reached the spot. Public persons were present there. From the public they came to know that injured has been removed to the hospital. They also came to know that only one person has been injured and he has been removed toe the hospital. He does not remember the time when they reached the hospital. He does not know at what time statement of Raju was recorded by the IO. He does not know if they met any other person knowing the facts of the case or involved in this case. He reached the police station at about 7:15 am. He does not know if doctors or nurses were present when statement of Raju was recorded. He denied the suggestion that he did not visit the spot or the hospital or that he did not take the rukka to police station.
26. SI Umed Singh Nodal Officer CPCR was examined as PW-11. He deposed that on 01.08.2017 he was posted as Nodal Officer in police Headquarter. He generated the copy of the PCR form Ex.PW5/A. He issued the certificate u/s 65B Evidence Act which is Ex.PW11/A.
27. Nothing material came on record to discredit the witness during cross-examination.
28. Raju was examined as PW-12. He deposed that on State Vs. Om Parkash SC NO:619/17 11 that day he was under the influence of liquor when the incident took place. Manoj Vishal and one more boy were drinking liquor in front of public toilet situated in C-block at about 11:00 /11:30 pm. He requested them to leave the place and not to drink liquor because the females were passing through that place. He was working as cleaner of the toilet where the above named persons were taking liquor. After requesting them not to drink liquor he went home after locking the public toilet. After reaching home he took more liquor and thereafter he does not know as to what had happened. After hearing noise outside his house he came out. He identified Vishal as the person who was drinking liquor outside the toilet.
29. He was cross examined by APP but he did not support the prosecution case. However, he admitted that on 06.05.2017 at 11:00 pm Vicky was drinking liquor with accused Vishal and Manoj and he objected to them on which they started abusing him. He also identified Vicky and he also identified Om Parkash father of Vicky. He also admitted that at about 1 am on 7.05.2017 when he came out of his house he saw Vishal, Vicky and Manoj carrying dandas and lathies in their hands. He also admitted that the accused persons exhorted that they will teach him a lesson and at the same time Om Parkash also reached there. He also admitted State Vs. Om Parkash SC NO:619/17 12 that Deepak s/o Sh. Laxman is his distant relative and was residing with him for the last 2 years. He admitted that Deepak was suffering from T.B. and that ailment of Deepak was known to all the labours. He denied the suggestion that Om Parkash exhorted that issey khatam karo or that accused Vishal, Vicky and Manoj started giving lathie blows on him or that Vishal hit on his head with Lathie to kill him and that Vicky and Manoj gave lathie blows on his other parts of the body. He was confronted with his statement Ex.PW12/A. He also denied the suggestion that Deepak S/o Laxman intervened to save him or on which Om Parkash exhorted saying that issey bhi maro or that Vishal, Vicky and Manoj also hit Deepak with dandas or that due to the blows of dandas Deepak fell down on the ground. He denied the suggestion that Vicky, Vishal, Om Parkash and Manoj gave danda blows to him with intent to kill him and they also gave danda blows to Deepak when he intervened to save him. He admitted that accused persons are residing in the neighbourhood and they also knows about the ailment of Deepak. He admitted that accused Om Parkash and Vicky were arrested in his presence and he admitted his signatures on their arrest memos Ex.PW12/B and Ex.PW12/C.
30. During cross-examination by the defence he stated that he was fully drunk when he was taken to the hospital. He State Vs. Om Parkash SC NO:619/17 13 remained in the hospital till morning. He does not know when Ex.PW12/A was written or what was written in that. He put his signature on Ex.PW12/A on the asking of police. He came to know about the death of Deepak in the morning only. He does not know how Deepak sustained injuries or who gave beatings to him.
31. Dr. Adesh Kumar Sr. Scientific Officer Chemistry FSL was examined as PW-13. He analysed the viscera and according to the report the blood was found containing ethle alcohol 29.50 mg per 100 ml of blood. No poison could be detected in the viscera. He proved the report as Ex.PW13/A. The testimony of the witness has gone unchallenged and uncontroverted.
32. SI Ravi Kumar was examined as PW-14. On 15.05.2017 he collected the post mortem report of deceased Deepak from BSA hospital. After consulting with senior officials section 304 IPC was attracted. He recorded the statement of Nirmala wife of deceased Deepak. He searched for accused Vishal and Manoj but no clue was found. Later on he also sent the wooden box containing viscera to FSL for forensic opinion through Ct. Kiran Pal. Later on section 302 IPC was added and case was transferred to Inspector Rajender. The testimony of the witness has gone unchallenged and uncontroverted.
State Vs. Om Parkash SC NO:619/17 14
33. Ct. Deepak was examined as PW-15. He deposed that on 09.10.2017 on the direction of the IO he went to BSA hospital and collected subsequent opinion and sealed pullanda. He returned to the police station and handed over the pullanda to MHC(M) and the subsequent opinion to the IO.
34. During cross-examination he stated that he reached the hospital on motorcycle and stayed there for about 45 minutes. He does not remember by which DD number he left the police station and returned to the police station.
35. Ct. Daya Ram was examined as PW-16. He deposed that on 27.10.2017 on the directions of IO/SHO he received two sealed parcels and sample seals along with FSL form for depositing the same in the FSL. RC in this regard was prepared. He deposited the pullanda, the seals and FSL form in the FSL and obtained the acknowledgement. He came back to the police station and handed over the acknowledgement to the MHC(M).
36. During cross-examination he deposed that he left the police station for FSL at about 12 pm. He remained in FSL for about 1½ hours.
37. Ct. Kiran Pal was examined as PW-17. He deposed that on 12.07.2017 on the direction of IO and SHO he received exhibits duly sealed from MHC(M)for depositing the State Vs. Om Parkash SC NO:619/17 15 same in FSL vide RC No.313/21/17. He deposited the exhibits in FSL and obtained the copy of RC and acknowledgement. On return to the police station he handed over the acknowledgement to the MHC(M). During the period exhibits remained in his possession no one tampered with the same.
38. During cross-examination he stated that he received the exhibits at about 10 or 11 am. He reached FSL on his motorcycle. He returned to the police station at about 3-4 pm and handed over the copy of RC and acknowledgement to the MHC(M).
39. HC Pardeep was examined as PW-18. He proved the entries in register No.19 as Ex.PW18/A and Ex.PW18/B. He proved the copies of RC as Ex.PW18/C and Ex.PW18/E. He proved the acknowledgement of FSL as Ex.PW18/D. Till the case property remained in his possession no one tampered the same in any manner. During cross-examination he denied the suggestion that the entires in register No.19 and road certificates are fabricated and manipulated.
40. HC Devender Kumar was examined as PW-19. He deposed that on 27.10.2017 on the direction of IO he handed over three sealed pullandas and sample seal to Ct. Daya Ram for depositing the same in FSL vide RC No.396/21/17 and proved the copy of the same as Ex.PW19/A. Ct. Daya State Vs. Om Parkash SC NO:619/17 16 Ram returned to the police station after depositing the case property in the FSL and handed over the acknowledgement of FSL to him. He proved the photocopy of acknowledgement as Ex.PW19/B. During the period the exhibits remained in his possession no one tampered with the same.
41. During cross-examination by the defence he denied the suggestion that entries in register No.19 and road certificates are fabricated and manipulated.
42. ASI Rajbir was examined as PW-20. He corroborated the testimony of HC Braham Parkash examined as PW-10. He deposed that after receiving DD No.7B he along with HC Braham Pal reached near H.No.C-10/45 Shahbad Dairy. They came to know that injured had already been removed to BSA hospital by PCR Van. They reached BSA hospital. In the hospital he collected the MLC of Raju and recorded his statement Ex.PW12/A. He made endorsement on the statement of Raju which is Ex.PW20/A. He prepared the rukka and handed over to HC Braham Pal at 6:50 am who went to the police station. SI Mahesh Kumar along with HC Braham Pal came back at the spot and he apprised the facts of the case to SI Mahesh.
43. During cross-examination by the defence he deposed that he received DD No.7A at 1:02 am. They reached the spot within 7-8 minutes. They remained on the spot for about State Vs. Om Parkash SC NO:619/17 17 5 minutes. No person was present on the spot. They reached the hospital at about 1:30 or 1:45 am and remained in the hospital for about 2 hours. During that period he recorded the statement of complainant. After recording statement of Raju it took him 1 or 1½ hour in sending the rukka to the police station. He did not receive any information with regard to injury to any other person in the same incident. There was no other injured admitted with regard to the incident. He denied the suggestion that he had not gone to the spot or that he had also not gone to the hospital. He denied the suggestion that he had not correctly recorded the statement of Raju.
44. Dr. Mukta Mala was examined as PW-21. She deposed that on 07.08.2017 at 9:20 am patient Deepak 35 years male was brought to the casulity in unresponsive and unconscious stage. She examined the patient and declared him brought dead. She proved the MLC of Deepak prepared by Dr. Akant JR as Ex.PW21/A.
45. During cross-examination she stated that no family member of patient Deepak accompanied him to the hospital.
46. Sh. Saurabh Pathak, Jr Forensic Chemical examiner FSL was examined as PW-22. He examined the exhibits and prepared the detailed DNA examination report. He proved the report as Ex.PW22/A. Nothin material came on record to discredit the witness in the cross-examination. State Vs. Om Parkash SC NO:619/17 18
47. HC Ashwani was examined as PW-23. He deposed that on 10.08.2017 he along with Inspector Ajender Singh reached at Rohini Court complex. Accused Vishal surrendered in the court before Ld. MM. Inspector Ajender Singh interrogated him with the permission of the court and arrested him vide arrest memo Ex.PW23/A. The personal search of accused was conducted vide memo Ex.PW23/B. Accused made the disclosure statement Ex.PW23/C. One day police custody remand was taken. Accused pointed out the scene of crime i.e. street No.10 H.No.45 Shahbad Dairy Delhi vide pointing out memo Ex.PW23/D. Accused led them to his house No.C-7/25 Shahbad Dairy on the first floor and pointed out the place where he concealed the danda. He identified the accused.
48. During cross-examination by the defence he stated that they reached Rohini Court complex on 10.08.2017 at about 2 pm and stayed there for about 1 or 1½ hours. Accused was interrogated in the court complex in front of court room No.114. He does not remember if IO requested any public person to join the proceedings. He does not remember if any other house hold article was lying inside the room where the accused pointed out the place of hiding danda. They stayed there for about 25 minutes. He denied the suggestion that accused was not arrested in his presence State Vs. Om Parkash SC NO:619/17 19 or that he had not made any disclosure statement.
49. Ct. Satish was examined as PW-24. He deposed that on 16.09.2017 on the instructions of the IO he took two sealed parcels having seal of MK from MHC(M) to BSA hospital. He deposited the pullandas in the mortuary of BSA hospital. No body tampered with the same till the pullandas remained in his possession. He obtained the receiving from the BSA hospital and handed over to the MHC(M). Nothing material came on record during his cross-examination to discredit the witness.
50. Ct. Karan Singh was examined as PW-25. He deposed that on 07.05.2017 at about 9:10 am he joined the investigation with SI Mahesh. They reached BSA hospital at about 9:30 am after receiving information that Deepak had died. SI Mahesh got the body preserved in the mortuary of BSA hospital and deputed HC Braham Pal to protect the same. At about 1 or 2 pm they along with complainant Raju reached the spot. SI Mahesh prepared the site plan at the instance of Raju. On the same day at about 4:30 or 5:00 pm he and SI Mahesh reached the bus stand of Shahbad Dairy where Vicky and Om Parkash met them. SI Mahesh arrested Om Parkash vide arrest memo Ex.PW12/B and his personal search was conducted vide memo Ex.PW25/A. Accused Vicky was arrested vide memo Ex.PW12/C and his personal State Vs. Om Parkash SC NO:619/17 20 search was conducted vide memo Ex.PW25/B. Accused Om Parkash made the disclosure statement Ex.PW25/C and accused Vicky made the disclosure statement Ex.PW25/D. Accused Vicky led them to his house and from the room situated on the first floor under the bed he got recovered two dandas. Both the dandas were wrapped in two separate white colour cloth parcels with the seal of MK and seized vide memo Ex.PW25/E. Both the accused were got medically examined and put in the lockup. He identified both the accused persons and also the two dandas as Ex.PW25/Article-1.
51. During cross-examination he stated that he does not remember if he told the IO in his statement that they went to BSA hospital after receiving information about death of Deepak. They met Deepak in the hospital at about 9:30 or 10:00 am in the emergency ward. He does not remember if Raju was admitted in the hospital or not or if Raju was having any injury on his person or not. He does not remember if there was any injury mark on the body of Deepak. It took them 2 to 3 hours in completing the proceedings of preserving the body in the mortuary.
52. Accused Om Parkash and Vicky were spotted near the public toilet. 3-4 persons were requested to join the proceedings but none agreed. He does not remember if IO State Vs. Om Parkash SC NO:619/17 21 requested any resident of locality or shop owner to join the investigation. The distance between the place of arrest and place of occurrence is about 400 to 500 meters. They remained at the place of occurrence at about 1 or 1½ hours. He does not remember if SI Mahesh also made inquires from the residents of the locality near the house of the complainant. The house of both the accused is at a distance of about 50 to 100 meters from the place of occurrence. The room from where the danda was recovered was of the size of 10 x 10 ft. The bed was lying in front of the entry door of the room. He does not remember if anything else was lying in the room besides bed. The seizure proceedings were conducted inside the room. The space between the floor and the bed was about half feet or one feet. He denied the suggestion that Vicky did not get recovered the dandas or that the same was planted upon him.
53. SI Mahesh was examined as PW-26. He deposed that on 07.05.2017 at about 8/8:30 am duty officer handed over the original rukka and copy of FIR to him. After receiving the same he along with Ct. Karan went to BSA hospital where Raju met them. In the meanwhile he received information that Deepak s/o Laxman who was admitted in the hospital in unconscious state is declared dead by the doctor. He got the dead body preserved in the mortuary of BSA hospital and State Vs. Om Parkash SC NO:619/17 22 deputed HC Braham Pal to protect the same. He along with Ct. Karan and complainant Raju reached the spot at about 1 or 1:30 pm and prepared site plan Ex.PW26/A at the instance of Raju. He corroborated the testimony of PW-25 regarding the arrest of Vicky and Om Parkash and recovery of dandas. He identified both the accused persons and both the dandas.
54. On 08.05.2017 he visited the mortuary of BSA hospital where the dead body was identified by the relatives. He prepared the inquest papers Ex.PW26/B collectively. After the post mortem the dead body was handed over to the relatives. The doctor handed over to him sealed parcels which he seized vide memo Ex.PW26/C. He returned to the police station and deposited the case property in the malkhana. On 08.05.2017 section 304 IPC was added and he handed over the file to MHC(M). On 27.07.2017 on the direction of the IO he visited the place of occurrence along with the draftsmen. The draftsmen took the measurement on the spot at his instance and prepared rough notes. He was cross-examined by the Ld. APP wherein he admitted that he prepared the site plan Ex.PW26/D of the place of recovery of danda.
55. During cross-examination by the defence counsel he stated that before reaching the hospital he got the information that Deepak has been declared dead. He had State Vs. Om Parkash SC NO:619/17 23 gone through the MLC of Deepak where the time was mentioned as 9:20 am. He did not try to find out where Deepak was from 1:00 am till 9:20 am. He also did not make any inquiry from PCR as to who brought injured Raju to the hospital or whether there was any other injured on the spot. He did not collect any document regarding previous illness of Deepak. He remained on the spot for about 1 or 1½ hour when it was pointed out by the accused persons. The place of occurrence was at a distance of 2-3 steps from the house of complainant and in the middle of the street. The width of the street in front of house of Raju was about 4 to 5 ft. He does not remember whose house is situated opposite to the house of Raju. He did not take any measurement at the scene of crime. He pointed out only one place of quarrel which was pointed out by Raju. The house of accused persons is about 3-4 houses away from the place of occurrence. He does not remember if he had shown the house of accused persons in the site plan Ex.PW26/A. He had pointed out the house of complainant and house of accused persons to the draftsmen. No public person came there at the time of recovery of danda. He did not request any public person to join the investigation at the time of recovery. They reached the place of recovery of danda at about 6 - 7 pm. He does not remember if in the room from State Vs. Om Parkash SC NO:619/17 24 where recovery was effected a bed was lying or a takhat was lying. Green colour mattress was lying on the bed. He does not remember if any chair or table was also lying in the room. Again said no other article was lying in the room. The seizure documents were prepared in the room. He denied the suggestion that no recovery was effected or that he has not properly investigated the case.
56. Inspector Rajender Singh was examined as PW-27. On 23.07.2017 he received this file from MHC(R). He got prepared the scaled site plan from Ct. Naveen. He corroborated the testimony of PW-23 regarding the surrender of accused Vishal and his arrest and pointing out of the place by the accused where the danda was hidden. He also sent the case property to FSL. He collected the FSL result and thereafter, filed the charge sheet. He identified accused Vishal.
57. During cross-examination he stated that he had gone through the file when it was handed over to him. He does not remember if on the MLC of the injured Raju the doctor has mentioned LAMA. He did not remember if he tried to find out where the injured Deepak remained after the incident which took place at about 1:00 am till 9:20 am. He did not make any inquiry from the PCR officials who reached the spot as to whether there was only one injured or more injured. He State Vs. Om Parkash SC NO:619/17 25 denied the suggestion that he has not fairly investigated the case or that he has falsely implicated the accused.
58. Thereafter, prosecution evidence was closed.
59. Statements of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence and stated that they have been falsely implicated. They did not wish to lead evidence in defence and the case was fixed for final arguments.
60. I have heard Ld. APP for the State and Ld. Defence counsel for accused persons.
61. The present case is based upon eye witness account. According to the prosecution case on 06.05.2017 at about 11:00 pm accused Vicky, Vishal and Manoj were consuming liquor in front of public toilet situated in C-block Shahbad Dairy. Raju PW-12 who was working in that toilet objected to it on which they abused and quarreled with Raju and went away saying that the will teach him a lesson. On 07.05.2017 at about 1:00 am when Raju was going back to his house he saw accused persons standing in the street with lathies and danda's in their hands. Om Parkash father of Vicky and Vishal also came there. On the exhortation of Om Parkash they all assaulted Raju. When Deepak came forward to save Raju they also assaulted him. Due to the blows given Deepak fell down. Raju and Deepak were removed to the State Vs. Om Parkash SC NO:619/17 26 hospital where Raju was declared brought dead.
62. Raju was examined as PW-12. He deposed that on that date in front of the public toilet situated in C-block, Shahbad Dairy at about 11:00 or 11:30 pm accused Manoj, Vishal and one more boy were taking liquor. He requested them not to drink liquor there. Thereafter, he went home, consume more liquor and thereafter he does not know what happened. He heard the loud noise outside his house but he does not know as to what had happened. He was cross- examined by Ld. APP but he did not support the prosecution case. He was also confronted with his statement Ex.PW12/A.
63. According to the prosecution case there was no other eye witness of the incident and Raju does not say that any other person was present when the incident took place.
64. Smt. Nirmala was examined as PW-3 according to the prosecution case Deepak made a dying declaration before her but she did not depose about the dying declaration. She infact stated that the incident took place in her presence.
65. She deposed they were sleeping in the house. On hearing the noise her husband came out and saw 4-5 persons. Her husband asked them not to make noise. The names of those 4-5 persons were Om Parkash, Vicky, Vishal, Manoj (since absconding) and Raju. Vishal and Vicky were armed with iron rods and others were armed with danda's State Vs. Om Parkash SC NO:619/17 27 they all assaulted her husband. After sustaining injuries her husband fell down on ground. Thereafter, her husband called her and when she came out they assaulted her as well as Raju. Mother of Vishal and Vicky also came there and gave beatings to her. PCR van came and removed Deepak, Raju and her to BSA hospital where her husband was declared dead. It is important to note that there is no such mention in her statement Ex.PW3/A that the accused persons assaulted her husband in her presence and she was also confronted with her statement Ex.PW3/A. This clearly shows that she had made improvement in her statement.
Even her statement shows that she was not present there at the time of incident as she herself stated in her examination in chief that, "after receiving injuries, my husband fell down on the ground. Thereafter, my husband called me when I came out, they also assaulted me and Raju, our landlord". From this statement of Nirmala it is clear that she was inside the house and came out when her husband called her after he had fallen on the ground. Meaning thereby that she had not witnessed the incident. Even the other eye witness Raju does not say that Nirmala was present on the spot at the time of incident.
66. Nirmala also said that PCR van removed Deepak, Raju and her to BSA hospital. But the record shows that it State Vs. Om Parkash SC NO:619/17 28 was only Raju who was taken to the hospital in the night. Statements of police witnesses i.e. ASI Rajbir, PW-20 and HC Braham Pal PW-10 also shows that there was only one injured. Raju does not say in his statement that there was any other injured. According to PW-20 and PW10 no body told them that there was any other injured also on the spot beside Raju, this also falsifies the statement of Nirmala.
67. According to the evidence and story of prosecution this incident has taken place at about 1:00 am on 07.05.2017. According to the MLC of Raju Ex.PW6/A he reached Dr. BSA hospital at 1:32 am. The MLC of Deepak is also proved as Ex.PW21/A according to this MLC Deepak reached the hospital on 07.05.2017 at 9:20 am. There is no explanation where Deepak remained after 1:00 am till 9:20 am. This again falsifies the statement of PW-3 Nirmala that Deepak, Raju and Sushil were taken to the hospital in the same PCR Van. Keeping in the all these facts and the improvements made by Nirmala she is not reliable witness.
68. As mentioned above prosecution has not been able to prove the dying declaration. Nirmala did not say that her husband Deepak told anything about the incident or the names of the persons who assaulted him resulting into his death.
69. The prosecution also intend to prove the circumstance State Vs. Om Parkash SC NO:619/17 29 of recovery of weapon of offences i.e. the sticks Ex.PW25/Article-1 from the room situated on the first floor of H.No.C-7/25, Shahbad Dairy at the instance of Vicky. It is important to note that there are only police witnesses with effect to this recovery i.e. Ct. Karan and SI Mahesh. No public witness was joined at the time of effecting recovery, though the public witnesses were availble and the recovery was effected from the residential area. Even other wise simple recovery is not sufficient to prove the guilt unless it is shown that these dandas Ex.PW25/Article-1 were used as weapon of offence. These dandas were sent to FSL for examination. The FSL result is proved as Ex.PW22/A but no blood was found on those dandas, though there were lacerated wounds on the person of Raju as per MLC Ex.PW6/A. Thus it cannot be said with certainty that the injuries on the person of Raju and Deepak were caused with these dandas only.
70. There is no other circumstance against the accused persons which the prosecution intend to prove. Even if this circumstance is taken as proved that does not establish the guilt of accused persons as the chain is not complete and this circumstance is also not inconsistent with any hypothesis of innocence of accused persons.
71. Keeping in view the above discussion in my opinion State Vs. Om Parkash SC NO:619/17 30 the onus which was on the prosecution has not been fully discharged. The guilt of accused persons is not established beyond doubt, hence accused persons are acquitted. They be released on furnishing personal bond in the sum of Rs.20,000/- with one surety of like amount u/s 437A Cr.PC for a period of six months. File be consigned to record room u/s 299 Cr.PC. File be revived as and when Digitally signed by VIRENDER VIRENDER KUMAR accused Manoj is arrested. KUMAR BANSAL Date: 2018.05.10 BANSAL 12:38:09 +0530 Announced in the open court (VIRENDER KUMAR BANSAL) today on 10.05.2018 ASJ/Pilot Court/North District Rohini Courts/New Delhi.
State Vs. Om Parkash SC NO:619/17 31