Delhi District Court
Sc No. 57715/16 State vs . Smt. Rajesh And Another 1 Of Total Pages ... on 6 July, 2018
IN THE COURT OF MS. SUKHVINDER KAUR, ADDITIONAL
SESSIONS JUDGE04 (NORTH), ROHINI COURTS, DELHI
1. Serial Number 57715/16
2. Name of the Police Station and the Aman Vihar, FIR No. 66/11
Crime No. of the offence
3. Name 1. Smt. Rajesh
W/o Sh. Charan Singh
Occupation:House wife
R/o Village Mubarakpur
Dabas, Delhi.
Age 35 years
Occurrence on 11.03.11
Date of complaint 04.06.11
Date of apprehension 12.03.11
Release on bail on 18.08.12
2. Kanwar Singh
S/o Lt. Sh. Dalip Singh
Occupation: Not mentioned in the
chargesheet.
R/o Village Mubarakpur
Dabas, Delhi.
Age 46 years
Occurrence on 11.03.11
Date of complaint 04.06.11
Date of apprehension 18.03.11
Release on bail on 01.09.12
Commitment 02.08.11
Commencement of trial on
03.08.11
Close of Trial on 12.01.18
Sentence or order: Conviction
on 06.07.18.
4. Service of copy of judgment or finding 10.07.18
on accused
5. Explanation of delay No delay
Under Sections : 302/323/34 IPC
Date on which judgment was reserved: 04.07.2018
Date on which Judgment pronounced : 06.07.2018
SC No. 57715/16 State Vs. Smt. Rajesh and another 1 of total pages 43
JUDGMENT
1. The investigating agency was set in motion on receipt of DD No. 33A and on the statement of eye witness Raj Bala who stated that her brotherinlaw Kanwar Singh used to abuse and quarrel with them over trivial matters and his bhabhi Rajesh wife of Charan Singh also used to support him and instigate him to quarrel with them.
2. On 11.03.2011 at about 8 to 8.15 pm, when her son Amit returned home in his car, Kanwar Singh started abusing him. Amit parked his car inside his house and asked Kanwar Singh not to abuse. On this Kanwar Singh got infuriated and took out a knife from his house and followed Amit in order to assault him. On hearing the noise, Amit's wife Babita also came out. They told Amit to come inside the house and closed the gate. When she was standing near the gate and telling not to altercate with Kanwar Singh, in the meanwhile Kanwar Singh reached the roof of his house, his bhabhi Rajesh and another unknown person were also standing with Kanwar Pal. Rajesh handed over a wooden plank to Kanwar Singh and exhorted him to finish Amit. On the instigation of Rajesh, Kanwar Singh had thrown the wooden plank on Amit which struck against his head and on the foot of Amit's wife Babita due to which Amit fell down unconscious and blood started oozing from his head.
3. On seeing this she alongwith Babita started crying. The neighbors and other family members gathered at the spot. Arun and Ravi sons of his brotherinlaw removed Amit to the hospital in their private car.
SC No. 57715/16 State Vs. Smt. Rajesh and another 2 of total pages 43 Afterwards they informed her that Amit had expired in the hospital due to injuries.
4. On the basis of her complaint, case was registered and police conducted the investigation. After arresting the accused persons and completing the investigation charge sheet u/s 302/323/34 IPC was prepared by the IO.
5. The charge sheet was filed in the Court of Ld. M.M on 04.06.2011. After supplying copies u/s 207 Cr.P.C the case was committed to the Sessions Court u/s 209 Cr.P.C and assigned to Ld. Predecessor of this Court on 02.08.2011.
6. In order to prove its case prosecution examined 31 witnesses, details of which is as under: PW No. Name of PW Relevancy Documents exhibited PW1 Smt. Rajbala Complainant Ex. PW1/A PW2 Ct. Hari Dutt Link witness Nil PW3 HC Ajit Singh MHC(M) Ex. PW3/A(OSR), Ex.
PW3/B(OSR), Ex. PW3/C(OSR),
Ex. PW3/D, Ex. PW3/D1,
Ex.PW3/E, Ex. PW3/E1(OSR)
PW4 HC Mahesh Kumar DD Writer Ex. PW4/A(OSR)
PW5 HC Rajesh Kumar Duty Officer Ex. PW5/A to Ex. PW5/C
PW6 Sh. Sushil Brother of deceased Ex. PW6/A to Ex. PW6/F, Ex. P1
to Ex.P5 and Ex. PW6/DA
PW7 Ct. Dinesh Kumar Witness of Nil
investigation
PW8 Ct. Om Prakash Computer operator Nil
PW9 Smt. Babita Wife of deceased Ex. PW9/A and Ex. PW9/B
PW10 WCt. Preeti Link witness Nil
PW11 SI Vishes Kumar Incharge Crime Team Ex. PW11/A
SC No. 57715/16 State Vs. Smt. Rajesh and another 3 of total pages 43
PW12 Ct. Narayan Singh Witness of Ex. PW12/A and Ex. PW12/B
investigation
PW13 Sh. Arun Relative of deceased Ex. PW 13/A and Ex. PW13/B
and accused persons
PW14 Sh. Ravi Relative of deceased Ex.PW14/A
and accused
persons
PW15 SI Mahavir Singh Witness of Ex. PW15/DA
investigation
PW16 ASI Nand Kishore Witness of Nil
investigation
PW17 Dr. Manoj Dhingra Chairman of Medico Ex. PW17/A and Ex. PW17/B
Legal Board
PW18 Dr. Shalini Girdhar Witness who Ex. PW18/A
conducted
postmortem of
deceased
PW19 WCt. Renu Witness of PCR Form Ex. PW19/A
PW20 HC Karambir Link Witness Ex. PW20/A1 to Ex. PW20/A13 and
Ex. PW20/A14
PW21 WCt. Bhagyawati Witness of PCR form Ex. PW21/A
PW22 SI Sri Bhagwan Witness of Ex. PW22/A to Ex. PW22/D
investigation
PW23 SI Manohar Lal Draftsman Ex. PW23/A
PW24 Smt. Sushila Ex. P6 and Ex. P7 and Ex.
Sister of deceased PW24/DA
PW25 Dr. Pankaj Medical witness Ex. PW25/A
PW26 Inspector Neeraj Witness of Ex. PW26/A to Ex. PW26/G
Kumar investigation
PW27 Ct. Yashvir Singh Link Witness Nil
PW28 HC Raj Kumar MHC(M) Ex.PW28/A to Ex. PW28/C
PW29 SI Karambir Witness of Ex. PW29/A to Ex. PW29/D
investigation
PW30 Inspector Mahender Investigating Officer Nil
Singh (retired)
PW31 Sh. V. Laxmi Assistant Ex.1a, Ex.1b, Ex. 2A to Ex. 2D,
Barasimhan Director(physics) Ex.S1 to Ex. S4, Ex. Q1 to Ex. Q4
and Ex. PW31/A,
SC No. 57715/16 State Vs. Smt. Rajesh and another 4 of total pages 43
STAR WITNESSES
7. PW1 being the complainant, PW9 being the injured and eye witness and PW24 being the eye witness are the star witnesses.
8. PW1 Smt. Raj Bala in her testimony supported the prosecution case and deposed on the lines of her statement recorded during investigation. She proved her statement as Ex. PW1/A. She further added that on the same day during noon hours at about 11.30 a.m accused Kanwar Singh had quarreled with Amit and abused him. She further added that on the next day i.e. on 12.03.11 police had come and she had shown them the place of incident. After about one month police came to her house, measured the spot and took notes. All the three accused persons had murdered her son with common intention.
9. PW9 Smt. Babita did not support the prosecution case. She testified that at about 8 to 8.15 pm she was present at her house. She was alone at that time. Her husband came from outside in his car and parked the car inside his house. After parking the car they both went to close the main gate. Some brick had fallen from the upside and hit the head of her husband and then also hit her feet and her husband had fallen. At that time some fattas were lying inside the gate of their house. Her husband had fallan on that fattas and due to injuries he fell unconscious. When she started crying her devars Ravi and Arun came there and her devar as well as she had taken her husband to the hospital. She also made a phone call to her motherinlaw Rajbala and SC No. 57715/16 State Vs. Smt. Rajesh and another 5 of total pages 43 informed her about injuries received by her husband.
10. In the hospital after some time, doctor informed them that her husband had expired. From the hospital, she returned to her house and there she met her motherinlaw and other relatives. Police met her at her house and made inquiries from her but did not record her statement. At that time her motherinlaw Rajbala and her brotherinlaw Sushil were present in the house. At the time of incident her motherinlaw had gone to her parents village with her brotherinlaw Sushil. She was cross examined at length by ld Additional P.P, however, nothing incriminatory against the accused could be elicited during her cross examination by Ld Additional P.P. She also denied having made any statement dated 12.03.11 to the police.
11. PW24 Smt. Sushila supported the prosecution case and deposed on the lines of testimony of PW1. She also identified the case property I.e fatta Ex. P1, chunni which was tied on the head of his brother to stop bleeding as Ex.P6 and clothes of his brother as Ex. P7.
OTHER PUBLIC WITNESSES
12. PW6 Sh. Sushil real brother of the deceased testified that on 11.03.11 at about 9 p.m he was informed by his sister Sushila that Amit was hit with a fatta by Kanwar Singh, Rajesh and another person and her brother had expired. She had also told that Kanwar Singh had thrown the fatta on Amit from the roof of house of Charan Singh, his Chacha. On information he returned to home and local police had reached his home.
SC No. 57715/16 State Vs. Smt. Rajesh and another 6 of total pages 43 He deposed about the investigation conducted by the police at the spot and proved the seizure memo of the fatta as Ex. PW6/A and seizure memo of other exhibits as Ex.PW6/B.
13. He further testified that on 12.03.11 he had identified the dead body of his brother Amit in the mortuary of SGM hospital and after postmortem the body was handed over to them. He proved statement of identification of dead body as as Ex. PW6/C and memo of handing over of dead body as Ex. PW6/D.
14. He further testified that on 15.03.11 at about 11.15 a.m he was with the police in search of accused. On the said day some informer of the police met them and informed that he had seen accused Kanwar Singh roaming in IBlock Bhagya Vihar. On the basis of information on his identification, accused Kanwar Singh arrested by the police. His personal search was conducted vide memo Ex. PW6/E and he was arrested vide memo Ex. PW6/F. He also identified the case property I.e wooden plank Ex. P1, the cemented plaster seized from spot as Ex. P2, bunch of hair taken out from sealed pullanda sealed with seal of FSL as Ex. P3, another plastic container containing blood stained cemented plaster as Ex. P4, plastic container containing blood on gauze described as same recovered from spot as Ex. P5.
15. PW13 Sh. Arun cousin of the deceased testified that on the date of incident at about 8 to 8.30 p.m when he was present at his SC No. 57715/16 State Vs. Smt. Rajesh and another 7 of total pages 43 medical store at Sultanpuri, he had received phone call from his father that Amit had received injuries. He immediately rushed to the spot and removed the injured to SGM hospital alongwith his brother Ravi. In hospital Amit was declared dead.
16. He testified that he was not aware as to how Amit had received injuries. He proved his statement regarding identification of dead body of Amit in mortuary of SGM hospital as Ex. PW13/A. He was declared hostile by Ld Additional P.P for resiling from his previous statement and was cross examined with the permission of the Court. In his cross examination conducted by Ld Additional P.P he denied having given statement to police that accused Kanwar Singh and Rajesh used to nurse grudge against Amit and his family for the reason that Amit and his family used to instigate the wife of Kanwar Singh and his son to claim their share from the property. He also denied having stated to the police that on 11.03.11 at about 11.30 a.m Kanwar Singh and Rajesh had quarreled with Amit and also abused him and claimed that Amit and his mother were instigating Ashish and his mother to claim their share in the property. He also denied the contents of statement Mark PW1/B(wrongly marked as Ex. PW1/B since the witness has denied having made the said statement to the police) during his cross examination by Ld Additional P.P.
17. PW14 Sh. Ravi the cousin brother of deceased testified that on 11.3.11 he had left his house at about 5 p.m and while he was roaming in SC No. 57715/16 State Vs. Smt. Rajesh and another 8 of total pages 43 the village, at about 7 to 7.30 p.m when he was returning and had reached in his gali he saw that incident had already taken place. He had seen public persons gathered at the spot who were taking his cousin Amit, who had sustained head injuries, to hospital. He also accompanied them. In this hospital his cousin was declared brought dead. His father had called PCR from his mobile which was lying at his house at the time of incident. He testified that he was not aware as to how the incident had occurred and who was responsible for death of Amit.
18. He was also declared hostile by Ld Additional P.P and cross examined by him with the permission of Court. In his cross examination by Ld Additional P.P he stated that police had not made inquiry from him about the incident. He also denied having made statement dated 28.05.11 Mark PW14/A (wrongly marked as Ex. PW14/A since the witness has denied having made the said statement to the police) during his cross examination by Ld Additional P.P. The contents of the statement Mark PW14/A were read over to the witness, however, he had denied having made any statement to the police.
FORMAL WITNESSES
19. PW2 Ct. Hari Dutt testified that on the intervening night of 11/12.03.11 he had collected the copy of FIR No. 66/11 on instructions of duty officer and delivered the same to concerned M.M, joint Commissioner, DCP and concerned ACP on his official motorcycle.
20. PW3 HC Ajit Singh testified that he was working as MHC(M) SC No. 57715/16 State Vs. Smt. Rajesh and another 9 of total pages 43 in PS Aman Vihar on 12.03.11. He produced register No. 19 and proved the relevant entry at serial No. 83 in register No. 19 regarding deposit of four sealed pullandas alongwith sample seal of SGMH mortuary to Malkhana as Ex. PW3/A. He further proved the relevant entry made by him against the main entry regarding sending sealed box of viscera on 13.04.11 to FSL Delhi as Ex. PW3/B.
21. He further testified that he had sent eight sealed pullandas to FSL Delhi, five bearing seal of NK and three bearing seal of SGMH mortuary vide entry Ex. PW3/C. He also produced the original RC register and proved the copy of RC No. 43/21/11 as Ex. PW3/D and receipt of acknowledgement given by FSL as Ex. PW3/D1 and copy of RC No. 442/21/11 as Ex. PW3/E and receipt of acknowledgement as Ex. PW3/E1. He testified that so far as the case property remained with him no one had tampered with the same.
22. PW4 HC Mahesh Kumar produced the original DD register and proved the DD No. 33A recorded by him as Ex. PW4/A(OSR).
23. PW5 HC Rajesh Kumar produced the original FIR register and proved the computerized copy of F.I.R got registered by him through Ct. Om prakash CIPA Incharge on the basis of rukka as Ex. PW5/A. He also produced the endorsement made by him on rukka as Ex. PW5/B and his certificate u/s 65B of Indian Evidence Act as Ex. PW5/C. SC No. 57715/16 State Vs. Smt. Rajesh and another 10 of total pages 43
24. PW8 Ct. Om Prakash testified that on the night of 11/12/03.11 his duty was on CIPA. At about 12.05 mid night HC Rajesh had handed over to him rukka for recording FIR through computer on the basis of which he recorded FIR No. 66/11. He identified his signatures on the certificate u/s 65 B of Indian Evidence Act already exhibited as Ex. PW5/C issued by him at point A.
25. PW10 WCt. Preeti testified that she joined the investigation on 12.03.11 with Inspector Neeraj Tyagi. On the said day Smt. Rajesh was arrested from village Mubarkpur Dabas from her village and she had conducted her personal search. She further testified that Smt. Rajesh was brought in P.,S and her medical examination was got done in the hospital and then she was produced in the Court.
26. PW19 WCt. Renu is the PCR official who testified that on 11/12.03.11 her duty was in PCR channel 108 from 8 p.m to 8 a.m. On the said night at about 20:33:45 information was received from the phone number 09278880002 complaining about the quarrel and that the injured was hit with a brick. She filled the PCR Form and flashed the information. She produced the attested copy of PCR form and proved the same as Ex. PW19/A
27. PW21 WCt. Bhagyawati testified that on 11.03.11 she was posted in PCR police headquarter and information was received on channel No. 114 in Police Control room at 21:6:41 hours from Brahm SC No. 57715/16 State Vs. Smt. Rajesh and another 11 of total pages 43 Shakti hospital to the effect that a person was brought dead in the hospital. She further testified that she has recorded the information and forwarded the same to Console Operator. She produced the original PCR form and proved the same as Ex. PW21/A.
28. PW23 SI Manohar Lal, the Draftsman proved the scaled site plan of the spot as Ex.PW23/A.
29. PW27 Ct. Yashvir Singh is the link witness who testified that on 23.08.2013, on the instruction of IO, he went to FSL, Rohini, from where he collected the FSL result in sealed envelope and two sealed pullandas and handed over the same to the MHC(M) at the police station. So far as the pullandas remained with him, the same were tampered.
30. PW28 HC Raj Kumar testified that on 21.07.2014, he was on duty as MHC(M). On the said day, on the directions of IO, he had handed over the sealed pullanda containing mobile and pen drive sealed with the seal of FSL GNCT OF DELHI vide R.C. No. 155/21/14 to Ct. Zile Singh for depositing the same at FSL. He identified the endorsement made by him from pointX to X1 in this regard against entry at serial no. 1327 dated 15.04.2013, which is Ex.PW28/A, in register no. 19.
31. He further testified that after depositing the pullanda at FSL, Rohini, Ct. Zile Singh handed over to him the acknowledgement of the same. He produced original Road Certificate Register and the SC No. 57715/16 State Vs. Smt. Rajesh and another 12 of total pages 43 acknowledgement and proved copy of R.C. no. 155/21/ 14 as Ex.PW28/B and copy of acknowledgement as Ex.PW28/C. He testified that so far as the exhibits remained in his possession, they were not tampered or allowed to be tampered by anyone.
WITNESSES OF CRIME TEAM
32. PW11 SI Vishesh Kumar, the then Incharge Crime Team, Outer District proved Crime Team Report prepared after inspection of the spot on 11.03.2011 as Ex.PW11/A.
33. PW20 HC Karambir produced the negatives of the photographs taken by Ct. Ravinder, Photographer of Crime Team, at the spot and proved the photographs on the judicial record as Ex.PW20/A1 to Ex.PW20/A13 and the negatives as Ex.PW20/A14(colly). He testified that Ct. Ravinder had left the job and joined BSF, however, he was also a member of Crime Team and was present at the spot when photographs were taken.
MEDICAL AND SCIENTIFIC EVIDENCE
34. PW17 Dr. Manoj Dhingra, testified that on 23.05.2011, Inspector Neeraj Kumar had moved an application for seeking opinion on the weapon of offence to HOD, Forensic Medicine, SGM Hospital, which is Ex.PW17/A. IO had produced a pullanda bearing seal of NK, which on opening was found containing a wooden plank 7 feet x 5 inches x 1.5 inch bearing weight of about 6.264 kg. After going through the postmortem SC No. 57715/16 State Vs. Smt. Rajesh and another 13 of total pages 43 report and examining the wooden plank, he gave his opinion to the fact that the injury mentioned in postmortem report, could be possible by the wooden plank, shown to him or otherwise. He proved his opinion as Ex.PW17/B.
35. PW18 Dr. Shalini Girdhar, Autopsy Surgeon testified that she had conducted postmortem on the body of Amit on 12.03.2011 at 11 a.m, which was sent by Inspector Neeraj Kumar with brief history of quarrel. He further testified that deceased was first taken to Braham Shakti Hospital and then SGM Hospital, where he was declared brought dead on 11.03.2011 at 9.45 pm. She described the injuries found on the body of the deceased and testified that after postmortem, she had opined the cause of death in this case was coma due to head injury caused by blunt force, which was sufficient to cause death in the ordinary course of nature. She further testified that the viscera was preserved to rule out alcohol intoxication and the time since death was 15 hours. She proved her detailed postmortem report as Ex.PW18/A.
36. PW25 Dr. Pankaj testified that he had examined the patient Amit brought by one Arun at Sanjay Gandhi Memorial Hospital on 11.03.2011. At that time the patient was brought in unconscious state with alleged history of physical assault. He described the details about the vegetative state of the patient and testified that the patient was declared dead and his body was shifted to Mortuary. He proved the MLC of the deceased as Ex.PW25/A. SC No. 57715/16 State Vs. Smt. Rajesh and another 14 of total pages 43 WITNESSES OF ARREST
37. PW12 Ct. Narayan Singh testified that on 18.03.2011, he joined the investigation in this case and on that day, he alongwith Inspector Neeraj Kumar, ASI Nand Kishore and Ct. Manjeet reached at Mubarakpur Village. Sh. Sushil Kumar, brother of deceased Amit was also present there and IO was making enquiries from him. At that time, a secret informer came there and gave information to the effect that Kanwar Singh, the accused in the present case was seen roaming in the area of Bhagya Vihar.
38. He all alongwith Sh. Sushil Kumar reached at Bhagya Vihar and on pointing out of Sh. Sushil Kumar, accused Kanwar Singh was apprehended. After interrogation, he was arrested vide arrest memo Ex.PW6/F and his personal search memo Ex.PW6/E was prepared. His disclosure statement Ex.PW12/A was recorded and at his instance, pointing out memo Ex.PW12/B of the place of occurrence was prepared. He further testified that on 13.04.2011, he collected the exhibits in the present case vide R.C. No. 43/21 and 44/21 and deposited the same at FSL, Rohini. After depositing the exhibits, he handed over the receipt acknowledgement and copy of R.C. at FSL. So far as the case property remained with him, no one had tampered with the same.
39. PW16 ASI Nand Kishore deposed on the lines of PW12 regarding arrest of accused Kanwar Singh.
SC No. 57715/16 State Vs. Smt. Rajesh and another 15 of total pages 43 WITNESSES OF INVESTIGATION
40. PW7 Ct. Dinesh Kumar testified that on 11.03.2011 at about 9 pm, he alongwith SI Sri Bhagwan reached at Village Mubarakpur at the house of Bhim Singh. At the main gate of the house, a wooden plank, some blood and hair were found lying. They learnt that injured was taken to the hospital. He was left at the spot by SI Sri Bhagwan for protecting scene of crime. At about 11.45 pm, SI Sri Bhagwan gave him rukka and sent him for registration of FIR. After registration of FIR, he returned to the spot and gave copy of FIR and original rukka to the Investigating Officer.
41. PW15 SI Mahavir testified that on 11.03.2011, on receipt of the information regarding DD No. 33A at Police Post Prem Nagar, he reached at the spot i.e. house of Bhim Singh at Village Mubarakpur Dabas, where Inspector Neeraj also reached alongwith other staff. He had noticed blood at the spot i.e. in the courtyards inside the main gate of the house and a wooden plank stained with blood and hair strands at two places. In his presence the Crime Team had inspected the spot and took photographs. SI Sri Bhagwan came to the spot, who recorded the statement of complainant. After registration of FIR, further investigation was assigned to Inspector Neeraj Kumar who prepared the site plan and seized the exhibits i.e. a wooden plank in a cloth parcel vide memo Ex.PW6/A, blood from the spot in a gauze piece in a plastic box, blood stained piece of floor in a plastic dibbi, hair strands, earth control in a plastic box, vide seizure memo Ex.PW6/B and gave serial numbers to the SC No. 57715/16 State Vs. Smt. Rajesh and another 16 of total pages 43 sealed pullandas.
42. He also identified the case property i.e. wooden plank having brown stains taken out from parcel no. 8 as Ex.P1, cemented plaster kept in a plastic container taken out from parcel no. 7 as Ex.P2, bunch of hair kept in a plastic container taken out from parcel no. 6 as Ex.P3, blood stained cemented plaster kept in plastic container taken out from parcel no. 5 as Ex.P4 and blood on gauze piece kept in plastic container taken out from parcel no. 4 as Ex.P5.
43. PW22 SI Sri Bhagwan deposed on the lines of testimony of PW7 and PW15. He testified that on receipt of DD No. 33A regarding quarrel, he alongwith Ct. Dinesh reached at the spot. He also deposed about the articles found lying in the varanda(Aangan) on the lines of PW7 and PW15.
44. He further testified that he came to know that the injured was shifted to SGM Hospital. When he was going towards SGM Hospital, he received telephonic information from Duty Officer vide DD No. 49B regarding the death of injured Amit in SGM Hospital. He proved the attested copy of DD No. 49B on the judicial record as Ex.PW22/A and testified that in the SGM Hospital, he collected the MLC of Amit, where the concerned doctor had made the observation that injured was brought dead. Dead body was sent to Mortuary SGM Hospital. From the hospital, he returned to the spot and met complainant Rajbala, the mother of SC No. 57715/16 State Vs. Smt. Rajesh and another 17 of total pages 43 deceased and recorded her statement Ex.PW1/A. He made his endorsement on the statement and prepared rukka Ex.PW22/B. Rukka was handed over to Ct. Dinesh for registration of FIR. He remained at the spot and other senior police officers also reached at the spot. Inspector Neeraj had recorded the statement of witnesses and made enquiries at the spot. He also deposed about the investigation conducted by Inspector Neeraj and testified that after postmortem autopsy surgeon had handed over four sealed pullandas having seal of SGMH to him which he had produced to IO and seized by IO vide seizure memo Ex. PW22/C. He further testified that they made efforts to trace the accused persons. Accused Rajesh was arrested from her house. Lady Ct. Preeti was also with them, who conducted her personal search. Documents of arrest of accused Rajesh were prepared by the IO. Accused Rajesh pointed out the place of occurrence vide pointing out memo Ex.PW22/D prepared by the IO at her instance. PW22 also identified the case property as Ex.P1, Ex.P2, Ex.P3, Ex.P4 and Ex.P5.
45. PW26 Inspector Neeraj Kumar testified that on 12.03.2011, he had gone to the spot alongwith SHO. When he was present at the spot, Ct. Dinesh reached there from the police station and handed over the computerized copy of FIR and original rukka to him as after registration of case, investigation was assigned to him. He prepared the site plan on the pointing out of the complainant already Ex.PW15/DA signed by him at pointA. SC No. 57715/16 State Vs. Smt. Rajesh and another 18 of total pages 43
46. He further testified that the Crime Teach reached at the spot and photographs of scene of crime were taken from different angles. Thereafter, he lifted the exhibits i.e. blood stained earth, earth control, hair and wooden plank from the spot. The exhibits were sealed by him in separate parcels with the seal of NK, which after use was given to SI Mahavir Singh. After sealing, the exhibits were taken into possession vide seizure memos already Ex.PW6/A and Ex.PW6/B signed by him at pointB.
47. He recorded the supplementary statement of complainant and statement of Sh. Arun, cousin of deceased. Thereafter, he returned to police station and deposited the case property/exhibits with MHC(M). He again went to SGM Hospital and prepared the inquest papers Ex.PW18/DA, Ex.PW26/B, Ex.PW6/C, Ex.PW13/A and got conducted the postmortem on the body of deceased. After postmortem, he handed over the body to its relatives vide memo Ex.PW6/D. After postmortem, the doctor handed over four parcels sealed with the seal of SGMH Mortuary Mangolpuri and two sample seals to SI Sri Bhagwan and SI Sri Bhagwan handed over the said parcels and sample seal to him, which were seized by him vide memo Ex.PW22/C signed by him at pointA. He deposited the parcels with the MHC(M). He again went to Village Mubarakpur in search of accused and arrested Smt. Rajesh from her house vide arrest memo Ex.PW26/C, signed by him at pointA and got conducted her personal search through W/Ct. Preeti vide personal search memo Ex.PW26/D. Accused Rajesh was interrogated and her disclosure SC No. 57715/16 State Vs. Smt. Rajesh and another 19 of total pages 43 statement Ex.PW26/E was recorded.
48. He identified his signatures on disclosure statement at pointA and signatures of accused Rajesh at pointX. He further testified that Smt. Rajesh pointed out the place from where the wooden plank was thrown by accused Kanwar Singh on the deceased, vide pointing out memo Ex.PW22/D. Thereafter, accused Rajesh was produced before the court concerned and remanded to judicial custody. Thereafter, on 18.03.2011, accused Kanwar Singh was also arrested by him from Bhagya Vihar at the instance of brother of deceased, vide arrest memo Ex.PW12/A and his personal search was conducted vide memo Ex.PW6/E,bearing his signature at pointA. After interrogation, disclosure statement of accused Kanwar Singh was recorded. Accused Kanwar Singh had also pointed out the place from where he had thrown the wooden plank on the deceased, vide pointing out memo Ex.PW12/B. Witness also identified his signatures on Ex.PW12/A and Ex.PW12/B at pointsX.
49. He further testified that on 01.04.2011, he got inspected the spot through SI Manohar Lal, draftsman, who prepared the scaled site plan Ex.PW23/A. He also collected the postmortem report Ex.PW18/A and sent the exhibits to FSL, Rohini through Ct. Narain. On 23.05.2011, he obtained the subsequent opinion Ex.PW17/B regarding the weapons of offence vide his application to HOD Ex.PW17/A. He also collected the Crime Team Report Ex.PW11/A and photographs Ex.PW20/A1 to SC No. 57715/16 State Vs. Smt. Rajesh and another 20 of total pages 43 Ex.PW20/A13. He also collected MLC of injured Babita, which is Ex.PW9/B and also collected PCR forms Ex.PW21/A and Ex.PW19/A regarding the incident and placed the same on file. After completing the investigation, he prepared the challan. FSL reports Ex.PW26/F and Ex.PW26/G were collected from MHC(M) and filed in the court lateron. He also correctly identified the case property Ex. P1 to Ex. P5. On the basis of admission of ld defence counsel made vide his separate statement dated 01.09.12 MLC of PW Babita was exhibited as Ex. PW9/B.
50. It is important to mention here that a criminal revision petition was filed before Hon'ble High Court by complainant Smt. Raj Bala against the dismissal order passed by Ld Predecessor of this Court on an application u/s 311 Cr.P.C. In the petition it was alleged by the petitioners that PW9 had been won over by respondent No.2 after alluring her by offering money and a piece of plot. She alleged that accused/respondent No. 2 had contacted petitioner No. 2 on his mobile although she was lodged in Jail. She claimed that she had a conversation with petitioner No. 2 and a separate conversation with PW9. In the said conversation she clearly told him that she would manage her daughter in law I.e PW9 Babita and whatever she will give will be given to Babita and none else.
51. In view of the facts and circumstances, the revision petition was allowed and directions were given by Hon'ble High Court to send the concerned Pen Drive and the mobile to ascertain the true and correct SC No. 57715/16 State Vs. Smt. Rajesh and another 21 of total pages 43 facts with regard to PW9 turning hostile during the trial.
52. In view of directions given by Hon'ble High Court vide order dated 15.02.13, Ld Predecessor of this Court vide order dated 25.03.13 directed SI Karambir who was present in the Court on behalf of SHO to take voice sample of PW6, PW9, Sachin and of accused Rajesh for the purpose of comparison with the voice contained in the Pen drive and mobile phone already seized and sealed by the Court. The Pen drive and mobile phone were handed over to SI Karambir with directions to take all the concerned persons to FSL for collecting the voice sample for the purpose of comparison. Accordingly, PW29. PW30 and PW31 were also examined.
53. PW29 SI Karamvir testified that in compliance of the order passed by Hon'ble High Court and directions given by predecessor of this Court he took the sealed pullandas containing a Pen drive and mobile phone and all the four concerned persons to the FSL, Rohini. In FSL he met Ms. Anshu Goel of concerned section of FSL. Ms. Anshu Goel had directed him that he should bring all the four persons as well as the transcript of conversation to be prepared in the presence of two witnesses and eight empty audio cassette on 15.04.13. Accordingly, he returned in the P.S alongwith sealed pullanda and briefed IO Inspector Mahinder Singh. In his presence IO opened the pullanda and copied the material contained in Pen Drive in a computer for the purpose of preparing the transcript. Thereafter he again sealed the mobile phone and pen drive SC No. 57715/16 State Vs. Smt. Rajesh and another 22 of total pages 43 with the seal of MSG. Thereafter, on the directions of the IO he appeared in the Court and produced the said pullanda before Ld Predecessor who checked the material contained in the pullanda and thereafter sealed the same in the same pullanda with the Court seal.
54. On 15.04.13 IO Inspector Mahinder Singh prepared transcript of the conversation which was copied by him in his computer in his presence as well as in the presence of Ct. Praveen. IO had also prepared the transcript of the said recording which were given numbers as voice recording A, B, C and D in their presence, which are Ex. PW29/A to Ex. PW29/D signed by him at point A.
55. He further testified that on the same day he visited Rohini courts and collected sealed pullanda with the seal of Court and went to FSL alongwith said pullandas, transcript, 8 blank audio cassettes and concerned four persons. The voice of all the four persons was recorded by the concerned officials of FSL in four separate audio cassette taken by him to FSL. The FSL prepared one copy each of the said recording of four persons in the remaining four audio cassettes and thereafter kept the transcript and 8 audio cassettes with him.
56. As per the directions of concerned FSL official he again went to FSL on 19.04.13 and collected the 8 audio cassettes and handed over the same to IO in police station. IO had kept four audio cassette in a cloth pullanda which was sealed with seal of MSG. Thereafter, on SC No. 57715/16 State Vs. Smt. Rajesh and another 23 of total pages 43 22.04.13 vide RC No. 71/21/13 he had collected one sealed pullanda with the seal of MSG containing the four audio cassette and one pullanda sealed with court seal containing the mobile phone and pen drive from MHC(M) and deposited the same in FSL Rohini.
57. He further testified till the exhibits remained with him the same were not tampered. After recording of his testimony he clarified that out of the eight cassette he took to FSL, four were blank and other four cassette were containing voice samples which were given serial No. S1 to S4. He identified the mobile phone, Pen drive, Mobile battery which are collectively Ex. P1 and the four audio cassette bearing serial No. S1 to S4 collectively Ex. P2.
58. PW30 Inspector Mahender Singh(retired) deposed on the lines of testimony of PW29, he corroborated testimony of PW29 regarding preparation of transcript of conversation which was copied by him in his computer from the Pen drive in the presence of SI Karambir and Ct. Ravi. He identified his signatures on the transcript Ex. PW 29/A to Ex. PW29/D at point B.
59. He further deposed on the lines of testimony of PW29 regarding visit of SI Karmbir to FSL on his instructions alongwith the pullanda, transcript and eight blank audio cassettes and handing over the sealed pullanda having seal of MSG containing mobile phone, pen drive and four audio cassette to him by SI Karmbir after his return and seizure of the SC No. 57715/16 State Vs. Smt. Rajesh and another 24 of total pages 43 said articles by him vide seizure memo. Copy of which is marked as Mark PW30/A.
60. He further added that on 23.08.13 Ct. Yashvir Singh had collected FSL results and exhibits in sealed condition from FSL and deposited the pullandas in Malkhana and handed over of the FSL result to him. He further added that on 24.08.13 he had prepared a forwarding letter and filed the said FSL result in the Court and prepared the supplementary charge sheet on the instructions of the Court which was filed in the Court on 01.07.14.
61. PW31 Sh. V. Laxmi Narasimhan, Assistant Director(Physics) FSL Rohini, testified that on 22.04.13 their office had received two sealed parcels through SI Karambir. Parcel No. 1 was sealed with seal USG which on opening found containing a mobile phone and pen driver which were marked as Ex. 1a and 1b respectively. Ex.1a I.e Pen drive contained three audio files. Parcel No. 2, which was also sealed with seal of MSG was found containing four audio cassettes which were marked as Ex. 2a to Ex. 2d by him. Ex. 2a was found containing specimen voice sample of Sushil and marked as Ex. S1, Ex. 2b was found containing specimen speech sample of Sachin and marked as Ex. S2, Ex. 2C was found containing specimen speech sample of Smt. Rajesh and marked as Ex. S3 and Ex. 2d was found containing specimen speech sample of Smt. Babita and marked as Ex. S4.
SC No. 57715/16 State Vs. Smt. Rajesh and another 25 of total pages 43
62. He had compared the specimen voice sample with the questioned voice sample in the Pen driver. On auditory analysis and subsequent acoustic analysis using computerized speech lab Ex.Q1 was found similar to Ex. S1, Ex.Q2 was found similar to Ex. S2 and Ex.Q4 was found similar to Ex. S4. He further testified that quality of voice sample of speaker marked Q3, Smt. Rajesh was very poor, hence the speaker identification test could not be carried out for the same. He further testified that the mobile marked Ex.1a was forwarded to computer forensic unit as no relevant data was found on the retrieved data. He proved the detailed report as Ex. PW31/A.
63. After closing of P.E statement of accused persons u/s 313 Cr.P.C was recorded in which they either denied or expressed their ignorance about the evidence against them and pleaded that they were innocent and falsely implicated in this case. Their arrest was motivated and they were involved in this case out of enmity. Accused Rajesh stated that she was not even present at the time of incident.
64. I have throughly perused the record and given thoughtful consideration to the arguments addressed by Ld Additional P.P for State and Ld defence counsel. Ld defence counsel has also filed written arguments.
65. Ld. Additional P.P has mainly argued that the complainant who is the eye witness has duly proved the incident and her testimony SC No. 57715/16 State Vs. Smt. Rajesh and another 26 of total pages 43 coupled with the testimony of other witnesses proves the guilt of accused beyond reasonable doubts.
66. On the other hand, ld counsel for the accused persons has mainly argued that the information was received by the police at 8.30 p.m I.e after about 20 minutes of the alleged incident, however, the name of accused persons and eye witnesses are not mentioned therein. As per testimony of PW22 and PW7, when they reached at the place of occurrence no eye witness was found there. Thereafter, DD No. 49B Ex. PW22/A was received and recorded at about 10 p.m I.e after about 2 hours of the alleged incident, however, the name of accused persons and the eye witnesses were not mentioned even in the said DD.
67. It is argued that even as per the prosecution case when PW22 returned from hospital he met PW1 Smt. Raj Bala who claimed to be eye witness and recorded her statement Ex. PW1/A and got registered the FIR. It is urged that FIR is after thought and PW1 Smt. Raj Bala has not witnessed the alleged incident. It is further argued that rukka for registration of FIR was sent on 11.03.11 at 11.45 p.m, however the FIR was registered at 5 a.m on 12.03.11 at police station Aman Vihar.
68. He has pointed out that PW7 Ct. Dinesh in his testimony has deposed that when they reached at the spot they had not met any eyewitness at that time. He further testified that he remained at the spot for 2.30 to 3 hours, however, he did not meet any eyewitness during the SC No. 57715/16 State Vs. Smt. Rajesh and another 27 of total pages 43 said period. He further pointed that even PW22 SI Sri Bhagwan deposed that after reaching at the spot at about 9 p.m he did not find any eyewitness at the place of incident. He remained there for 10 to 15 minutes and then reached Braham Shakti hospital at about 9.30 p.m. No eyewitness was found in the said hospital. Thereafter, he reached SGM hospital and even there no eyewitness was found.
69. He further deposed that he remained at the spot till 7 a.m next morning. He did not find any eyewitness of the scene of occurrence till that time. It is urged that as per the testimony of PW22 no eyewitness of the occurrence was available till 7 a.m of 12.03.11 but contrary to that FIR is alleged to have been recorded at 5 a.m on 12.03.11 which shows that FIR was ante timed and after thought. The accused persons were not named anywhere even after considerable period of the alleged offence and they were falsely implicated subsequently after consultation and deliberation. He also placed reliance on the judgment of Hon'ble Supreme Court in Thulia Kali Vs. State of Tamil Nadu AIR 1973 SC pages 501.
70. He further pointed out that PW1 in her cross examination has also admitted at page No. 3 that she and her daughter Sushila were not present at the time of incident. He further pointed out that PW9 in her examination in chief has deposed that she made a call to her motherin law Smt. Raj Bala and informed about the injuries received by her husband. She also testified that at the time of incident her motherinlaw was not there on the ground floor since morning. She had gone to her parents village with her brotherinlaw Sushil. Testimony of PW9 shows SC No. 57715/16 State Vs. Smt. Rajesh and another 28 of total pages 43 that PW1 was not present at the spot.
71. He further argued that PW13 Arun and PW14 Ravi who are cousin brother of deceased had removed the deceased to the hospital from the spot. They had not deposed that Smt. Raj Bala was present at the spot when they removed the deceased to the hospital. Had she been present at the spot they must have seen her at the spot.
72. He further argued that PW1 in her cross examination deposed that at the time of incident she did not call the police or went to police station and she also did not accompany her son(deceased) to the hospital. She was not present even at the spot at the time when police reached there. Thus, from the evidence on record it is revealed that she was neither available at the spot nor in the hospital, meaning thereby she is not eyewitness of the occurrence. Ld defence counsel relied on the judgment of Hon'ble Supreme Court delivered in Din Dayal Vs. Raj Kumar @ Raju and others, AIR 1999 SC 537.
73. Ld defence counsel further argued that PW24 Smt. Sushila is the sister of deceased. From the statement Ex. PW24/DA it is revealed that she is also not the witness to the alleged occurrence. From the statement it is revealed that her mother PW1 Smt. Raj Bala had told her that Rajesh gave wooden plank to Kunwar Singh and asked him to hit at Amit. On the other hand PW1 Smt. Raj Bala had nowhere stated that she had told the aforesaid facts to PW24 Smt. Sushila. Thus the testimony of SC No. 57715/16 State Vs. Smt. Rajesh and another 29 of total pages 43 Sushila is hearsay in nature and is inadmissible. Even in Ex.PW1/A the presence of PW24 Smt. Sushila is nowhere shown either before, at the time or after the occurrence.
74. He further argued that as per statement of PW24 which is Ex. PW24/A it is revealed that she is not an eye witness, however, in the Court she deposed like an eyewitness and has been duly confronted with her statement. Ld defence counsel has further argued that the statement of PW24 Ex. PW24/DA was recorded on 28.05.11 I.e after 79 days of the incident and no explanation of the inordinate delay has been given. As per her statement she had left her parental house on the day of cremation itself which is highly unnatural conduct of the witness since her younger brother had expired. Thus PW24 is not reliable and truthful witness and her testimony can not be relied upon.
75. Ld defence counsel further argued that PW6 the real brother of deceased is also not the eye witness as he deposed that he was informed by her sister Sushila that Amit was hit with a fatta by Kunwar Singh, Rajesh and another person. She had also told him that Kunwar Singh had thrown fatta on Amit from roof of the house of Charan Singh. However, PW24 Smt. Sushil has no whereas stated that she had informed the said fact to her brother.
76. Ld defence counsel also pointed out that there are different versions of the alleged occurrence on the record. As per DD No. 33A, SC No. 57715/16 State Vs. Smt. Rajesh and another 30 of total pages 43 Ex. PW2/A, the information was received that injury was caused with the brick whereas as per PCR form Ex. PW21/A the information was that injury was caused with saria whereas as per FIR the injury was caused with a wooden plank. He argued that three inconsistent version about weapon of offence shows that prosecution is not sure about the type of offence used in commission of offence 76A. He further argued that PW9 Smt. Babita is the wife of deceased did not support the prosecution case. Further, no recovery has been effected against accused persons and there is no collaboration from any independent source. Thus sole, unreliable and uncorroborated evidence of PW1 Smt. Raj Bala can not be the basis of conviction. He relied on judgment delivered by Hon'ble Supreme Court in Suraj Mal Vs. State AIR 1979 SC page 1048.
77. Before dealing the rival contentions, I would like to reproduce the relevant law for the sake of convenience, which is as under: Section 302 IPC. Punishment for Murder: Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine".
In order to appreciate the evidence available on record in the light of offence charged against the accused, it would also be appropriate to refer to the provision contained in Section 300 IPC which reads as under: Section 300 IPC Murder: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is SC No. 57715/16 State Vs. Smt. Rajesh and another 31 of total pages 43 caused is done with the intention of causing death, or Secondly: If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly: If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly: If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
The essential ingredients of the offence under sec. 302 are as follows:
1. Death of a human being was caused;
2. Such death was caused by or in consequence of the act of the accused;
3. Such act was done
(a) with the intention of causing death, or
(b) that the accused knew it to be likely to cause death, or
(c) that the injury was sufficient in the ordinary course of nature to cause death.
SECTION 323 Punishment for voluntarily causing hurt Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
SC No. 57715/16 State Vs. Smt. Rajesh and another 32 of total pages 43
77.A Since, PW9 has turned hostile the witnesses of scene of crime who supported the prosecution case are only PW9 and PW24. Their testimony need to be considered cautiously for giving the findings on the guilt of accused. So far as PW24 is concerned, her presence at the spot at the time of occurrence is not reflected in the FIR. Though PW24 testified that her statement was recorded on the same day, it was observed during her examination in chief that only one statement of PW 24 I.e Ex. PW24/DA dated 28.05.11 was on record. First IO I.e PW22 also did not depose that he had met PW24 on the day of incident. In her statement Ex. PW24/DA she explained that she had returned to her matrimonial home after cremation of her brother(deceased). The explanation of delay in recording her statement is highly improbable as it can not be believed that PW24 who had come to stay in her parental home prior to the incident would have left immediately after cremation of her brother. Thus, I am of the view that her presence at the scene of crime on the date of incident is doubtful.
78. However, after carefully going through the testimony of PW1 and other evidence on record, I do not find any reason to doubt the testimony of PW1. So far as contention of ld defence counsel that PW1 was not present at the spot as she was not found either at the spot when the police reached nor in the hospital is concerned, I am of the view that merely because she was not present at the spot at the time of arrival of the police or in the hospital does not in any way leads to the inference SC No. 57715/16 State Vs. Smt. Rajesh and another 33 of total pages 43 that she was not present at the spot at the time of occurrence.
79. In her cross examination PW1 has explained that after the incident her condition had worsened. She further stated that she did not make her statement to the police immediately after their arrival since her condition was not so that she could make her statement. She explained that her son was taken to hospital and she was not in her sense to notice about the presence of police. She categorically denied the suggestion that she did not make the statement as she was not present at the spot. The judgment relied by ld defence counsel in Din Dayal Vs. Raj Kumar's case (supra) does not fit in the facts and circumstances of the present case. In the cited case, besides the fact that the relative of deceased did not accompany the deceased to the hospital nor informed the police about the incident, there were other reasons interalia that as per medical evidence the injuries found on the persons of deceased could not have been caused by the dagger. Even otherwise it can not be expected that every one behaves in a similar manner in a particular situation.
80. In Main Pal and another Vs. State of Haryana, Cril No.1446 1448 of 2003 Hon'ble Supreme Court held that "though PW2 might have acted in unusual manner that really is not determinative because different persons react differently in similar situations. In the said case, Hon'ble Supreme Court observed that the trial Court had erred in discarding the testimony of PW2.
SC No. 57715/16 State Vs. Smt. Rajesh and another 34 of total pages 43
81. PW1 in her testimony has explained the occurrence in detail and specified the role of both the accused persons. Though ld defence counsel has pointed out certain improvements in the testimony of PW1 including her testimony with regard to presence of her daughter Sushila at the spot at the time of occurrence, however the improvements do not go to the root of prosecution case, hence, are not material.
82. In A. Shanker Vs. State of Karnataka, AIR 2011 SC 2302, it has been held by Hon'ble Supreme Court in para No. 17 that " in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a condition, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to reply upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not effect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
83. Presence of PW1 at the spot is established by cogent evidence. Merely because PW1 is the mother of deceased does not SC No. 57715/16 State Vs. Smt. Rajesh and another 35 of total pages 43 mean that she is an interested witness. In Kartik Malhar Vs State of Bihar(1996) 1 SCC 614, Hon'ble Supreme Court held that a close relative who is a natural witness can not be regarded as an interested witness, for the term "interested" postulates that the witness must have been some interest in having the accused, somehow or other, convicted for some animus or some other reason. In Vijender Singh Vs. State of U.P, 2017(2) JCC 996, Hon'ble Supreme Court held that a related witness can not be regarded as interested witness. Related witness could not implicate any other person in a murder case leaving behind the real culprit.
84. The contention of ld defence counsel that PW7 in his testimony deposed that he remained at the spot for 2.30 to 3 hours, however, he had not met any eyewitness during the said period and testimony of PW22 that he did meet any eyewitness of the occurrence till 7 a.m on 12.03.11 can not be read in parts. Testimony of the said witnesses is to be read in entirety. PW7 in his examination in chief categorically deposed that at about 11.45 p.m SI Sri Bhagwan had given him rukka and sent him for registration of FIR.
85. PW22 also in his testimony deposed that when he returned to the spot from hospital he met complainant Raj Bala wife of late Sh. Bhim Singh, mother of deceased Amit, whose statement Ex.PW1/A was recorded by him. Beneath the statement of complainant he prepared the rukka Ex. PW22/B, which was sent to police station through Ct. Dinesh SC No. 57715/16 State Vs. Smt. Rajesh and another 36 of total pages 43 for registration of FIR.
86. PW22 in his cross examination stated that he returned to the spot from the hospital at 10.45 p.m. He also maintained his stand in the cross examination that he had sent rukka to P.S at 11.45 p.m. He categorically denied the suggestion that no rukka was sent by him or that the rukka was ante timed and ante dated. He has not been cross examined on the point that when he returned from the hospital to the spot he met complainant Raj Bala, wife of late Sh. Bhim Singh and recorded her statement Ex. PW1/A.
87. Considering the entire testimony of PW22, the statement recorded in his cross examination that he did to find any eyewitness to the scene of occurrence till 7 a.m on the next morning appears to be given under the belief that no other eye witness besides the complainant met him till 7 a.m on the next morning.
88. So far as testimony of PW7 to the effect that he had not met any eyewitness during the period he remained at the spot for 2.30 to 3 hours is concerned, it is not the case of prosecution that the complainant had met PW7. He has nowhere stated that no eyewitness had met the IO during the said period.
89. The contention of ld defence counsel that FIR had allegedly been recorded at 5 a.m on 12.03.11 and further that FIR is ante timed SC No. 57715/16 State Vs. Smt. Rajesh and another 37 of total pages 43 and after thought is not based on any evidence on record. Ld defence counsel has tried to mislead the Court by stating that FIR was recorded at 5 a.m whereas from Ex. PW 5/A it is revealed that FIR was registered at 00.05 a.m on 12.03.11 i.e after about 20 minutes of sending the rukka. Endorsement made by the Duty Officer on the rukka which is Ex. PW5/B also reveals that FIR was registered at 00.05 a.m on 12.03.11 vide DD No. 3A. PW2 Ct. Hari Dutt also deposed that he had collected copies of FIR on the instructions of IO and delivered the same at the residence of concerned M.M, Joint Commissioner, DCP, ACP on his official motorcycle. He also categorically deposed that he had collected the copies of FIR at 12.55 a.m. Ld defence counsel has failed to point out any thing in the testimony of PW2 to impeach his creditworthiness. Thus, there is nothing on the record to suggest that FIR was ante dated or ante timed.
90. The judgment relied by ld defence counsel titled as Thulia Kali Vs. State of Tamilnadu(supra) where there was a delay of 20 hours is not applicable in the facts of present case since in the present case there is no delay in registration of FIR. Further, though ld defence counsel has pointed out that PW1 on page 3 of her cross examination has admitted the suggestion that she and her daughter were not present at the time of incident, considering the overall testimony of PW1, who has categorically supported the prosecution case, there appears to be typographical error in her cross examination with regard to the suggestion given to her. Merely because of typographical error in her cross examination does not SC No. 57715/16 State Vs. Smt. Rajesh and another 38 of total pages 43 transpire that she has given inconsistent statement as argued by ld defence counsel. Thus, the judgment relied by ld defence counsel in Suraj Mal's case(supra) is not applicable.
91. So far as the testimony of PW9 Smt. Babita regarding the phone call given by her to her motherinlaw is concerned, PW9 is a hostile witness who has apparently tried to save the accused persons. Hence, her testimony can not be relied. Even PW9 deposed that her motherinlaw was at home when she returned from the hospital after some time. The contention of ld defence counsel that PW13 and PW14 has also not deposed about the presence of PW1 at the spot is of no consequence since their testimony is only with regard to removal of the deceased to the hospital from the spot. They have not been cross examined with regard to the persons who were present at the spot at the time they had removed the deceased to the hospital.
92. The contention of ld defence counsel with regard to the information given vide DD No. 33A Ex. PW4/A regarding injuries caused with a brick and information vide PCR form Ex. PW 21/A regarding injuries caused by a saria is concerned, admittedly the intimation given vide Ex. PW4/A and information given to PCR was not given by any eyewitness. The information was recorded in PCR form Ex. PW21/A on the information given by one Madhu Sharma Lal and DD entry Ex. PW4/A was recorded on an information by father of PW14 from his mobile number. It is relevant to point out here that Ex. PW4/A, Ex. PW2/A as well as Ex. PW29/A reflect that there was quarrel.
SC No. 57715/16 State Vs. Smt. Rajesh and another 39 of total pages 43
93. The accused persons in their statement u/s 313 Cr.P.C have stated that they have been falsely implicated due to enmity. Thus, there is no dispute with regard to enmity between the parties. PW1 has also deposed that her brotherinlaw Kunwar Singh used to abuse them and quarrel with them on trivial matters and accused Rajesh also used to instigate accused Kunwar Singh.
94. It is not disputed that the deceased had expired due to injuries on his head. Though ld. defence counsel by relying the testimony of PW 9 has stated that the deceased had died by fall of the brick over his head, however, the averment made in this regard is contrary to the record since the informations given vide Ex. PW4/A, Ex. PW2/A and Ex. PW 19/A clearly reflect that there was quarrel. It is important to point out that in the MLC Ex.PW9/B which is admitted by the accused persons the alleged history is of physical assault as told by injured herself. Had there been fall of brick the injured Babita would not have disclosed the history of physical assault. Further, though PW13, the cousin brother of deceased, who is also related to accused persons has turned hostile and deposed that he was not aware as to how Amit had received injuries, from the MLC of deceased, which is Ex. PW25/A, it is established that deceased was removed to hospital by PW13, who had also disclosed the alleged history as physical assault.
95. Even otherwise, from the photographs Ex.PW20/A1 to SC No. 57715/16 State Vs. Smt. Rajesh and another 40 of total pages 43 Ex.PW20/A13, it is revealed that the place of incident is a pacca structure and there is no sign of any construction going on at the spot. PW1 in his cross examination categorically denied the suggestion that house in which they were residing is a newly constructed house. Thus, there was no scope of accidental falling of any brick over the head of the deceased from the roof of second floor. As per the crime team report blood stained fatta was found at the spot, which is also reflected from the photographs, seizure memo of wooden plank Ex. PW6/A and testimony of witnesses. No brick was found at the spot by the crime team.
96. From the testimony of PW17, it is revealed that the wooden plank was 7' x 5" x 1.5" having blood stains. As per the testimony of PW17, it was having a weight of about 6.264 kgs. From the postmortem report Ex.PW17/A and testimony of PW18, it is revealed that the deceased had sustained antemortem injuries satellite shaped wound on the scalp in the middle and wound had exposed surface with underline sutures opened. As per the opinion of doctor the cause of death was coma due to head injury caused by blunt force which was sufficient to cause death in ordinary course of nature.
97. From the testimony of PW1 it is established that accused Kanwar Singh was instigated by coaccused Rajesh who exhorted "today finish Amit and solve all daily quarrels"(aaj issey khatam kar de roj roj ke jhanjhat se pichha chhut jayega). It is also established from the testimony of PW1 that thereafter accused Rajesh had given a wooden fatta in the SC No. 57715/16 State Vs. Smt. Rajesh and another 41 of total pages 43 hands of accused Kanwar Singh and on the asking of Rajesh Kanwar Singh hit Amit with the wooden plank by throwing the same over Amit. From site plan Ex. PW23/A, it is established that house of Charan Singh was a double story building and the wooden plank was thrown from the balcony of second floor.
98. The testimony of PW1 establishes common intention of both the accused persons who knowing the consequences I.e there was grave probability of death due to their act, used the wooden plank having the weight more than 6 kg. and thrown the same over the deceased from height I.e the second floor. The act of accused persons is covered under part three of Section 300 IPC as it was done with the intention of causing bodily injury to deceased and bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death.
99. In view of above discussion both the accused are convicted for the charge u/s 302/34 IPC. So far as the charge u/s 323 IPC is concerned, since PW9, in respect of whom the charge u/s 323 IPC was framed has turned hostile, benefit of doubt is given to accused persons and they are acquitted for the said charge.
100. I can not resist myself from giving the observations that despite of the order passed by Hon'ble High Court to make an inquiry about the conversation between PW9 and accused Rajesh contained in mobile phone and Pen drive suggesting that PW9 was won over by accused Rajesh. PW30 Inspector Mahender Singh acted irresponsibly for the reasons best known to him as without seeking permission of Ld. SC No. 57715/16 State Vs. Smt. Rajesh and another 42 of total pages 43 M.M he opened the pullanda containing the Pen drive and the mobile having recorded conversation and prepared the transcript thereof without even seeking the assistance of any expert due to which the primary evidence I.e the conversation contained in the mobile phone was destroyed and eventually the primary evidence could not be produced in the Court due to which the allegations of winning over the witness against the accused Rajesh could not be legally proved.
101. Copy of judgment be sent to Commissioner of Police and concerned DCP for taking necessary action against erring officials.
Announced in the Open Court (Sukhvinder Kaur)
on 06.07.2018 Addl. Sessions Judge: 04 (North)
Rohini Courts: Delhi
It is certified that this judgment contains forty three pages and each page is signed by me.
(Sukhvinder Kaur) Addl. Sessions Judge: 04 (North) Rohini Courts: Delhi SC No. 57715/16 State Vs. Smt. Rajesh and another 43 of total pages 43 SC No. 57715/16 State Vs. Smt. Rajesh and another 44 of total pages 43