Delhi District Court
State vs . : Lalit @ Lucky on 10 October, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 715/17
FIR No. : 405/17
U/s : 302/201 IPC
P.S. : Shahbad Dairy
State Vs. : Lalit @ Lucky
S/o Sh. Satish
R/o H.No.71, Village & P.O:
Prahladpur, Delhi.
Offence complained of : 302/201 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted
Date of committal : 24.11.2017
Date of Judgment : 10.10.2018
JUDGMENT
1. On 21.07.2017 Manorama Devi was present on the Rehari of her husband Umesh Singh to help him. She had reached there after performing her duty in the factory. At about 9.15 pm, as raw chowmin was over, her husband started for going to Shahbad Dairy on his bicycle to bring raw chowmin. When Umesh has gone to some distance, in the meanwhile accused Lalit @ Lucky came driving his motorcycle bearing registration no.DL-7SBW-5166 at very fast speed and her husband barely escaped from being hit by the motorcycle. Umesh asked him to drive the motorcycle State Vs. Lalit @ Lucky SC No.715/17 :: 1 ::
carefully on which accused Lalit @ Lucky got infuriated and started abusing. When Umesh objected to him Accused said " Mere gaon main basey ho aur mujhe he aankey dikhate ho tujhe to mein dekh lunga" and went away saying that he will teach him a lesson. Thereafter Umesh also went to bring raw chowmin. Mobile phone of her husband Umesh was left on the Rehari.
2. At about 9.35 pm on the mobile phone of her husband having no.8010946987 a call was received from phone no.7289039189. Manorama Devi attended that call. From the other side accused spoke and asked her to make her husband to talk with him. She told the accused that Umesh had gone for some work. Accused again used abusive language and said, "Vah Aaj Umesh Ko Jinda Nahi Chodega". She tried to pacify the accused but accused disconnected the phone after extending threat. She got frightened.
3. At about 10.00 pm, her husband returned with raw chowmin, she told him about threat extended by accused. They wound up the Rehari and started moving towards their house on foot. At about 10.15 pm when they reached at the corner of the street near Electric pole, they found accused Lalit @ Lucky already standing there. On seeing them accused caught hold the neck of Umesh with his hand and State Vs. Lalit @ Lucky SC No.715/17 :: 2 ::
while saying, "Mujhse Panga Lene Ka Anjam Dekh Le", accused Lalit took out knife from right pocket of his wearing pants and stabbed in the chest of Umesh. Umesh fell down at the spot. This incident was also witnessed by Jitender son of sister of Manorama. Umesh was taken to hospital by PCR Van where he was declared dead. FIR was registered. Accused was arrested. Accused got recovered the knife used in the commission of offence, his mobile phone and motorcycle. After completion of investigation, charge sheet against accused was filed. Ld MM after complying with the provision of Section 208 Cr PC committed the case to the Sessions Court as offence punishable u/s 302 IPC is exclusively triable by the Sessions Court.
4. Accused was charged for the offence punishable u/s 302 IPC to which he pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
5. To bring home the guilt of the accused prosecution examined 24 witnesses.
6. Smt. Manorama was examined as PW - 1. She deposed that she along with her husband Umesh (deceased) and her two children was residing in the tenancy of Bijender Singh in village Pehalad Pur, Delhi for last 1½ or 2 years. She was working in the factory at Sector-2, DSIDC, Bawana Delhi. She used to leave for her duties in the factory at about State Vs. Lalit @ Lucky SC No.715/17 :: 3 ::
9.00 a.m. and return home at about 6.00 p.m. Her husband Umesh used to sell chowmin on a rehari in front of Balmiki Mandir, Village Pehalad Pur, Delhi. Her husband used to reach at his rehari of Chowmin at about 3.00 p.m. She used to join her husband on rehri after 6.00 p.m. after performing duties in the factory.
7. On 20.07.2017 her husband went on a cycle for purchasing raw chowmin/kachi chowmin, at about 9.15p.m. She was present at the rehari of chowmin. Her husband had hardly gone up to 2-4 steps away from the chowmin rehari, when Lucky (accused) came driving a motorcycle from the back side of her husband in a high speed, which could hit the cycle of her husband. Her husband escaped. Her husband said, "Are bhai dekh ke chala le". Lucky said, "mere gaon me base or mujhe hi Aankhe Dikhate ho, Tujhe to main dekh lunga". After threatening her husband, Lucky went away from there on his motorcycle. Her husband also left for purchasing raw chowmin on his cycle. The mobile phone of her husband was lying at their rehari. At about 9.35 p.m. the mobile phone of her husband rang. She picked up the phone. She heard the voice of Lucky, who said "meri Umesh sea baat Kara de, usne mujhe gali di hai. She said to Lucky that Umesh had gone for some work. She tried to pecify Lucky who threatened that "main usako Aaj jan se mar dunga". State Vs. Lalit @ Lucky SC No.715/17 :: 4 ::
Thereafter, Lucky disconnected the phone. At about 10.00 p.m. her husband Umesh came to the rehari with raw chowmin. She informed her husband that Lucky had threatened her on the mobile phone. They were frightened due to the threat extended by Lucky. Thereafter, she along with her husband collected the articles of rehari and immediately went towards their rented house in village Prahlad Pur on foot. At about 10.15 p.m. they reached at the corner of their Gali where there is a electricity pole. She saw Lalit @ Lucky standing near the electricity pole. Lucky caught the neck/ gireban of her husband with his left hand, pulled out a knife by his right hand from his right side pocket of pants and said, "Tu dhamki ka Anjam dekh le", Lucky stabbed in the chest of her husband with the knife. Her nephew Jitender "meri behan ka ladka" also witnessed the incident as he was approaching from the side of their house. Her husband fell down on the ground due to the stab injury. She along with Jitender started shouting. Lucky ran away with the knife when she raised alarm. Some one made a call to the police at 100 number. She along with Jitender took her husband to a hospital situated in Rithala where the doctor examined and declared him dead. She correctly identified the accused. Police met her in the hospital. She narrated the facts of the case and her statement Ex PW1/A was recorded State Vs. Lalit @ Lucky SC No.715/17 :: 5 ::
by the police. She also pointed out the place where her husband was stabbed by the accused and where accused quarreled with her husband. Police prepared site plans Ex.PW1/B and Ex.PW1/C at her instance.
8. Her husband was having mobile number 8010.....87. The accused came on motorcycle bearing No. 5166 of Delhi.
9. On 21.07.2017, she and her relatives went to the hospital where the postmortem on the body was conducted. After the postmortem, the dead body of her husband was handed over to her relatives.
10. She along with Jitender rode in a police gypsy in which three other policemen were already sitting. They reached at Khera Canal at about 4.00 p.m. She pointed out the accused coming from the side of canal. The police apprehended the accused who confessed about the commission of offence. Accused was arrested vide arrest memo Ex.PW1/D and his personal search was conducted vide memo Ex.PW1/E. Police recorded his disclosure statement vide memo Ex.PW1/F. Accused pointed out the places of occurrence vide pointing out memos Ex.PW1/G and Ex.PW1/H.
11. The accused led them to his house and from the room situated on the left side from under the pillow lying on the bed took out one knife. The sketch of knife was prepared and State Vs. Lalit @ Lucky SC No.715/17 :: 6 ::
then measurements were taken. The sketch is Ex.PW1/I. The knife was put in one box, wrapped with white cloth, sealed with the seal of AKT and seized vide memo Ex.PW1/J. Thereafter, accused led them to the room situated on right hand side and from there accused got recovered one mobile phone lying on the table. The mobile phone was wrapped in white cloth, sealed with the seal of AKT and seized vide memo Ex.PW1/K. One motorcycle parked outside the house of accused, was seized vide seizure memo Ex.PW1/L.
12. She identified the mobile phone as Ex.PW1/Article-1, the knife as Ex.PW1/Article-2. She identified the motorcycle in photographs Ex.PW8/B to Ex.PW8/G as Ex.PW8/Article-1 on which accused was riding.
13. During cross-examination by the Ld. Amicus Curiae she deposed that she reached the rehri on the day of incident at 7:00 pm. There were other shops near the place where her husband used to place his rehri. She admitted that her husband used to put the rehri in front of Balmiki temple and not in front of any house. Her husband had gone to purchase raw chowmin from Shahbad Dairy. She does not know from which shop her husband used to purchase raw chowmin. She does not know the distance between their rehri and the place from where her husband used to State Vs. Lalit @ Lucky SC No.715/17 :: 7 ::
purchase raw chowmin.
14. She admitted that there is a police booth near Balmiki Mandir. Accused came driving motorcycle from the side of police station. It takes 10 minutes on foot to reach police station Shahbad Dairy from their rehri. No complaint was made to the police when the accused abused and threatened her husband. Before that they had no incident or quarrel with the accused and i.e. why they did not make any complaint. After receiving the call at 9:35 pm one boy who was already on the rehri came to know and she also told him that a boy is extending threats who told that the the boy making threat is son of his uncle (chacha). He also said that "usney daaru pe rekha hoga aise he bol reha hoga" and that is why she did not make any complaint to the police. She did not tell this fact to the police in her statement.
15. She had a talk with Lucky on telephone for about 2-3 minutes. Her husband also did not make any complaint about the threat received on telephone. Hum dono bahut ghabraye hue thay.
16. It takes about 8 to 10 minutes on foot to reach the place, where her husband was assaulted, from the rehri. They used to take the same route for reaching to their rented accommodation from the rehri on which her husband was murdered. She denied the suggestion that they never use to State Vs. Lalit @ Lucky SC No.715/17 :: 8 ::
take that route to reach their rented accommodation. Her husband was assaulted at the corner of Bank wali gali. She admitted that the incident took place at a crowded area and that there are residential houses near the place of incident. The people usually pass through that place but after 10 pm only few people pass through that road. Lucky was already standing at the turn of bank wali gali when they reached there. She saw Lucky from a distance of about 3 meters at the corner of the bank wali gali. Her husband was going ahead of her at that time. The bank is situated at a distance of about 20 meters from the place of incident. She does not know if there is any camera installed outside the bank but this incident has taken place at the turn and that is not covered even if a camera is installed outside the bank. Q. Whether you and your husband tried to run away on seeing the accused standing there?
Ans. We were going towards our house and did not try to run on seeing the accused.
Q. Did you raise alarm when accused caught the neck of your husband?
Ans. Yes.
17. People gathered when I raised alarm.
Q. Did you ask the persons who gathered there to apprehend the accused?
State Vs. Lalit @ Lucky SC No.715/17 :: 9 ::
Ans. Maine, chillaya, shor machaya par kisi ne meri suni nahi (after saying this witness started weeping).
18. Accused was wearing pants & shirt at that time. She had not gone to the house of Lucky immediately after the incident. The Ambulance came and she went hospital along with her husband in that Ambulance. Somebody made a call at 100 number whose name she does not know and the ambulance came. While her husband was shifted in ambulance police arrived there. Her clothes were stained with blood while shifting her husband in the ambulance. In the process of shifting her chunni was lost somewhere however, same was drenched in blood. Police did not ask her to hand over her blood stained clothes. She did not offer her blood stained clothes to the police.
19. Jitender son of her sister was working in the factory situated in Prahlad Pur during the relevant period. Jitender was living with them one year prior to the incident. Jitender was working in the factory since he came to reside with them. She does not remember the address of the factory where Jitender used to work. The clothes of Jitender were also stained with blood. She does not know if police seized the clothes of Jitender.
20. They reached the hospital at about 11:00 /11:30 pm. Police came to the hospital but reached later on. Her State Vs. Lalit @ Lucky SC No.715/17 :: 10 ::
statement was recorded by the police at 12:30 am. Statement of Jitender was also recorded after her statement
21. From the hospital she along with Jitender and police came to the place of incident. No police officer was present on the spot when they reached there. In her presence police did not take any photograph. Police prepared the site plan in her presence. She and Jitender remained on the spot up to 4 am. She admitted that site plan Ex.PW1/B and Ex.PW1/C do not bear her signature and signature of Jitender.
22. Her first statement was recorded in the hospital and thereafter at the house of Lucky. No other person was present at the place from where accused was apprehended. No photograph was taken and no site plan was prepared of the place of apprehension.
23. She does not know the house number of accused Lucky. Police did not take photograph or prepare site plan of the place of recovery of knife. She admitted that the pillow and the bed sheet of the bed from where the knife was recovered were not seized.
24. Sh. Ramesh Kumar was examined as PW - 2. He identified the dead body of Umesh on 21.07.17 vide memo Ex.PW-2/A. After postmortem he received the dead body vide memo Ex.PW2/B. The testimony of the witness has gone unchallenged and uncontroverted.
State Vs. Lalit @ Lucky SC No.715/17 :: 11 ::
25. Sh. Jitender was examined as PW - 3. He identified the dead body of Umesh in the mortuary of Dr. BSA hospital vide memo EX PW-3/A. He received the dead body vide memo Ex.PW2/B. The testimony of the witness has gone unchallenged and uncontroverted.
26. SI Harish Chand Pathak was examined as PW- 4. He deposed that on 17.10.2017 he took out print of PCR form no. 20 JUL171080663 dt. 20. Jul. 2017 Ex. PW4/A. The information was received from mobile no. 9718296757 at 23.15.43 at extension no. 108 and dispatched at 23.19.30. He also proved the certificate under section 65 B evidence Act as Ex. PW 4/B. The testimony of the witness has gone unchallenged and uncontroverted.
27. Ct. Devi Lal was examined as PW- 5. He deposed that on 20.07.2017 he was posted at CPCR PHQ at extension no. 108. On that day at 23.15.43 he received information from mobile no. 9718296757 that "quarrel may brought dead hai village me hi jhagda hua hai. Iski wife ise lekar aai hai, shahbad dairy". He fed this information in PCR form Ex. PW 4/A. He dispatched the same at 23.19.30. The testimony of the witness has gone unchallenged and uncontroverted.
28. HC Satender was examined as PW- 6. He deposed that on 21.07.2017, on receipt of the call, he along with SI State Vs. Lalit @ Lucky SC No.715/17 :: 12 ::
Jagdeep and other staff reached near electric pole no. 516- 9/9/5/1, Bank Wali Gali Prahladpur Banger, New Delhi where they met Ct. Chet Ram and after some time SI Sandeep also reached at the spot. SI Jagdeep inspected the scene of crime and he took photographs of scene of crime from different angles. He proved the seven photographs as Ex PW 6/A-1 to PW 6/A-7. Negatives are proved as Ex PW 6/B-1 to PW 6/B-7. They remained at the spot from 01:00 am to 01:45 am. The testimony of the witness has gone unchallenged and uncontroverted.
29. Ct. Tarun was examined as PW- 7. He was working as Duty constable in BSA Hospital. On the intervening night of 20/21.07.2017 at 11:00 pm, Umesh was admitted in the hospital vide MLC no. 10130 who was declared brought dead. He informed PCR at 100 number from his mobile no. 9718296757. Umesh was got admitted in the hospital by his wife Manorma and one person Jitender. The testimony of the witness has gone unchallenged and uncontroverted.
30. Sh. Sumit Kumar was examined as PW- 8. He deposed that he is the registered owner of motorcycle bearing no. DL 7S BW 5166. He got released the motorcycle on superdari. He proved superdarinama as Ex PW 8/A. He proved the motorcycle as Ex PW 8/article-1. He identified the six photographs Ex PW 8/B to PW 8/G which were taken at State Vs. Lalit @ Lucky SC No.715/17 :: 13 ::
the time of release of motorcycle. He proved the photocopy of the RC as EX PW8/I. The testimony of the witness has gone unchallenged and uncontroverted.
31. Ct. Tej Pal was examined as PW- 9. He deposed that on 20.07.2017 he was working as DD writer. On that day at about 10:50 pm he received information from wireless operator that one boy has been stabbed with knife at H.No.71, Vill. & P.O: Prahlad Pur Camp wali gali. He conveyed this information to SI Sandeep on telephone for taking necessary action. He recorded this information in DD No.84B Ex.PW9/A.
32. On that day at about 11:17 pm he received information from wireless operator that Umesh s/o Sh. Suresh who was brought dead in a quarrel and admitted in BSA hospital by his wife vide MLC No.10130/17 at H.No.71, Vill. & P.O: Prahlad Pur Camp wali gali. He conveyed this information to SI Sandeep on telephone for taking necessary action. He recorded this information in DD No.89B Ex.PW9/B. The testimony of the witness has gone unchallenged and uncontroverted.
33. Ct. Sanoj was examined as PW- 10. He deposed that on 21.07.2017 he delivered the copies of FIR to senior Police Officers and the area MM. The testimony of the witness has gone unchallenged and uncontroverted.
State Vs. Lalit @ Lucky SC No.715/17 :: 14 ::
34. SI Sandeep was examined as PW- 11. He deposed that on 20.07.2017 on receiving DD no.84B Ex.PW9/A he along with HC Surya Pratap reached at Village Prahlad Pur. They found that blood was lying near one electricity pole. They came to know that injured Umesh has been taken to BSA hospital. At the same time HC Sidharth Singh and Ct. Chet Ram reached the spot. Ct. Chet Ram was left at the spot. He along with other staff went to BSA hospital where he collected MLC of Umesh who was declared brought dead. He prepared application EX.PW11/A for preserving the dead body of deceased in mortuary of BSA Hospital through Ct. Surya Pratap. Smt. Manorma wife of deceased met him in the hospital. She had witnessed the incident. He recorded her statement Ex.PW1/A. He made endorsement Ex.PW11/B and prepared the rukka. He handed over the same to HC Sidharth at 1.10 am on 21.07.2017 for registration of FIR. He sent the request that crime team be called on the spot. He went to the spot where he met Inspector Avnish Tyagi who conducted further investigation. The testimony of the witness has gone unchallenged and uncontroverted.
35. Dr. Vijay Dhankar, Specialist and HOD Forensic Medicine, Dr. BSA Hospital, Delhi was examined as PW- 12. He conducted the post mortem examination on the body of Umesh son of Suresh aged about 30 years male on State Vs. Lalit @ Lucky SC No.715/17 :: 15 ::
21.07.17. He found incised stab wound 2 cm x 1 cm, obliquely placed present over the middle part of left side of front of chest. The margins are clean cut with the upper inner angle comparatively more obtuse and the lower outer angle more acute. The injury is 3 cm from the midline and 6 cm from the left nipple. Corresponding internal injuries were also found in the chest.
36. He opined that death was due to hemorrhagic shock and cardiac tamponade consequent to penetrating injury to the chest. All injuries were ante mortem, fresh at the time of death, caused by one side sharp edged weapon and injury no.1 and the corresponding internal injuries were sufficient to cause death in the ordinary course of nature.
37. After the post mortem examination blood sample on gauze and clothes of deceased were preserved, sealed with the seal of department and handed over to police along with sample seal. He proved his report as Ex.PW-12/A.
38. During cross - examination by Ld. Amicus Curiae he deposed that he had found only one sharp injury on the body of deceased. He admitted that in PM report Ex.PW-12/A the depth of said injury had not been mentioned. No videography of post mortem was done by him.
39. Inspector Manohar Lal was examined as PW- 13. He deposed that on 17.10.17 he was called by IO Avinash Tyagi State Vs. Lalit @ Lucky SC No.715/17 :: 16 ::
at PS Shahbad Dairy. He reached PS Shahbad Dairy. From there he along with Inspector Avinash Tyagi reached at Firni Road, near Electric pole, gatta factory , Prahlad Pur. On the pointing out of Inspector Avinash Tyagi he prepared rough notes and took measurements. Thereafter they reached in the gali near electric pole 516-9/9/5/1 Prahlad Pur. There also he took rough notes and measurements. Thereafter he returned to his office. On 18.10.17 he prepared the site plan Ex.PW-13/A and PW-13/B. After preparing the scaled site plan he destroyed the rough notes and the measurements.
40. During cross-examination by Ld. Amicus Curiae he deposed that he had not lodged the departure entry while leaving his office. He left his office at about 2.30 PM and reached in PS at about 3 PM. He did not make any arrival entry in the PS. He reached the spot at about 3.30 PM and remained on the spot till 5 PM. He denied the suggestion that there was no source of light at the spot or that there was no electricity pole at the spot. He denied the suggestion that he has falsely shown the electricity pole at the spot in scaled site plan at the instance of IO.
41. H. Ct. Naagraj was examined as PW- 14. He deposed that on 20.07.2017 he was working as duty officer. HC Sidharth brought the tehrir. The investigation was marked to Inspector Avinash Tyagi and special messenger was sent to State Vs. Lalit @ Lucky SC No.715/17 :: 17 ::
deliver the copy of FIR to joint CP, MM, & DCP. He got the content of the rukka feed in the computer.
42. Ld APP with the permission of the court lead the witness wherein he proved the computer generated copy of FIR as Ex. PW-14/A. He proved his endorsement on the rukka as Ex.14/B. He handed over the copy of FIR and original rukka to HC Sidharth for presenting the same to Insp Avinash Tyagi for further investigation. He proved the certificate u/s 65-B of Evidence Act as Ex. PW14/C.
43. During cross-examination by the defence counsel he stated that he did not mention all the contents of rukka in DD register. He himself did not feed the contents of rukka in the computer. The Computer Operator fed the same in computer. He denied the suggestion that FIR is ante-timed and ante- dated.
44. Dr. Mukta Mala, Medical Officer, BSA Hospital, Delhi was examined as PW-15. He deposed that on 20.07.17 at 22:57 hours Umesh was brought to the casualty in unresponsive state/unconscious state. On examination the patient was declared brought dead. The MLC is Ex.PW-15/A. The testimony has gone unchallenged and uncontroverted.
45. HC Devender was examined as PW-16. He was working as MHC (M). He proved the entry in register No. 19 as Ex.PW-16/A. On 02.02.18 he handed over three State Vs. Lalit @ Lucky SC No.715/17 :: 18 ::
pullandas and sample seal to Ct. Jagjeet for depositing the same in FSL vide RC no.53/21/18 Ex.PW-16/B. Ct. Jagjeet after deposited the exhibits in FSL returned to PS and handed over the acknowledgement of FSL Ex.PW-16/C to him with copy of road certificate.
46. On 23.09.17 the motorcycle was released on superdari. On 21.03.18 HC Devender brought the FSL result and pullandas which were deposited with him.
47. During cross-examination by Ld. Amicus Curiae he admitted that he has not mentioned the time in register no.19 and 21 regarding taking and handing over the exhibits. He did not obtain the signature of IO in register no.19 and 21 regarding taking over and handing over the exhibits.
48. Ms. Seema Nain, Asstt. Director, Biology, FSL, Rohini, Delhi was examined as PW-17. She conducted the biological examination and the DNA examination on the exhibits. The blood was detected on Ex.1, Ex.2, Ex.3a to Ex.3f. Ex1 is knife. Ex.2 is the blood on gauze and Ex.3a to Ex.3f are the clothes of deceased. The DNA profile was generated from the blood found on the exhibits. The DNA profile shows that the DNA found on exhibit 1 (knife) is similar with the DNA generated from the blood sample of deceased found on gauze and the blood found on the clothes of the deceased. She proved her report as Ex.PW17/A. State Vs. Lalit @ Lucky SC No.715/17 :: 19 ::
49. During cross-examination by the Ld. Amicus Curiae she stated that she does not remember if the blood on knife was visible when parcel no.1 was opened by her. She had already mentioned in her report Ex.PW-17/A that blood was detected on Ex.1 i.e. metallic knife. In the present case she had used the 16 marker (identifier plus amplification) PCR kit for examining the exhibits. She admitted that at present 32 marker PCR kit is available in India. She denied the suggestion that there was no blood on the knife or that she has planted the blood on the knife after taking the blood from the blood gauze of deceased at the instance of IO.
50. SI Jagdeep Nara, Incharge Mobile Crime Team, Rohini District was examined as PW-18. He deposed that on 21.07.17 after receiving call from the record room, he along with HC Satender, ASI Ram Kumar reached bank wali gali, Prahlad pur village. On the spot near one electric pole some blood and some white substance were lying. There were ants on that white substance. He inspected the scene of crime. Photographer HC Satender took the photographs of the scene of crime from different angles. He prepared the report Ex.PW-18/A of the scene of crime. No question was put to the witness during cross-examination by the Ld. Amicus Curiae.
51. Jitender Kumar was examined as PW- 19. He State Vs. Lalit @ Lucky SC No.715/17 :: 20 ::
deposed that earlier he was residing in village Prahlad Pur, Delhi with his mosa Umesh, mosi Manorma and their children. His mosa used to sell chowmin on a rehri near mandir of village Prahlad Pur.
52. On 20.07.17 at about 10.15 PM he was coming out of the house. When he reached in the gali, he saw his mosa and mosi coming in the gali. Accused Lucky was standing near the electric pole in the gali. When his mosa reached near the electric pole, the accused Lalit caught hold the neck of his mosa. He was carrying a knife in his right hand. Lucky stabbed knife in the chest of his mosa. After causing stab injury lucky ran away from the said gali towards the bank wali gali. He along with his mosi raised noise. Public gathered over there. After some time police reached there. He along with his mosa and mosi were taken in a police vehicle to the hospital where the doctor examined his mosa and declared him dead. Police recorded statement of his mosi. Police also recorded his statement. He along with his mosi accompanied the police to the place where the quarrel took place and the place where Lalit stabbed his mosa.
53. Next morning they went to the hospital. The post mortem was conducted in the hospital. At 2.30 PM the dead body was handed over to them.
54. At about 3.30 PM police reached at their house and State Vs. Lalit @ Lucky SC No.715/17 :: 21 ::
informed that accused could be apprehended. He fully corroborated the testimony of PW1 regarding arrest of accused and recoveries at the instance of accused. He correctly identified the accused. He identified the mobile phone as Ex.PW1/Article-1, knife as Ex.PW-1/Article 2 and motorcycle as Ex.PW-8/Article 1.
55. During cross-examination by the Ld. Amicus Curiae he deposed that he started residing in Delhi in year 2016. He came to Delhi for job. At the time of incident he was working in spare parts company in Prahlad Pur, Delhi. He does not know the exact address of the company. He used to go for his work at about 9 AM and return at 8.30 PM. He was not having any mobile phone. Company did not hand over any mobile phone to him. He cannot tell the exact address of the house of his mosa (deceased). He returned from his factory at about 8.30 PM to the house of his mosa. When he returned to the house of his mosa, only children were present and were watching television. The street was about 3 feet wide. Mosa was wearing pants and baniyan and mosi was wearing suit. He knew accused Lucky as he used to eat chowmin on the rehri of his mosa (deceased).
56. He cannot tell the number written on the electric pole installed in the gali. There was round shape bulb hanging on the said electric pole. The house of Lucky is situated at a State Vs. Lalit @ Lucky SC No.715/17 :: 22 ::
distance of about 5 minute walking distance from the house of his mosa. He cannot tell the exact address of accused Lucky. He did not visit the house of Lucky at any point of time.
57. When he shouted public persons gathered there. However he does not remember how many public persons gathered at the spot. He does not know who made call to the police at 100 number. Blood started oozing from the stab wound of Umesh and his clothes were soaked with blood. He along with his mossi and police official took Umesh to the hospital in police vehicle. His clothes were stained with blood of Umesh. He did not hand over his blood stained clothes to the police. Police reached the spot after about 5-6 minutes of the incident. The incident took place at about 10.15 PM. He did not chase the accused. They reached the hospital at about 11 PM. His statement was recorded in the hospital at about 3.30 AM. Statement of his mossi was recorded at the same time. Doctor was not called by the police at the time of recording of statement.
58. From hospital, they reached the scene of crime at about 4 AM. No photographs were taken by the police at the place where accused was apprehended. No public person was called at the time of arrest of accused Lalit.
59. He denied the suggestion that signature of accused State Vs. Lalit @ Lucky SC No.715/17 :: 23 ::
Lucky were obtained on certain blank papers and later on the same were converted into various memos to falsely implicate him or that he made signatures on the asking of IO and at the instance of his mossi. He denied the suggestion that knife has been planted in the present case to create false evidence against the accused.
60. He does not know at what time they reached the house of accused Lucky. Accused Lucky was apprehended at 4 PM. The photographs of the house of accused were not taken by the police. No site plan of the recovery of place was prepared by the police. No family member of accused was present in the room from where the knife was recovered. The pillow from under which knife was got recovered by the accused was not seized. There were two rooms and a kitchen in the house of accused.
61. HC Surya Pratap was examined as PW-20. He visited the scene of crime with SI Sandeep. He fully corroborated the testimony of PW11. He deposited the dead body in mortuary of hospital.
62. During cross-examination by Ld. Amicus Curiae he deposed that he does not remember the exact time when they left the police station. No DD entry was made by SI Sandeep when they left the PS for the spot. He does not remember the exact time when they reached the spot. Some State Vs. Lalit @ Lucky SC No.715/17 :: 24 ::
public persons were present at the spot. IO made inquiry regarding injured. Public persons informed that injured had already been shifted to BSA hospital. No statement of public person was recorded at the spot. No articles were lifted/seized from the spot in his presence. He does not remember the exact time when they reached the hospital by private vehicle. In his presence IO/SI Sandeep did not record the statement of Smt. Manorma. He does not know when FIR was registered. He denied the suggestion that the wife of deceased was not present in the hospital.
63. HC Siddharth was examined as PW-21. He deposed that on 20.07.2017 on receipt of information regarding a boy stabbed with knife, house no.71 Village and PO Prahald Pur Camp Wali Gali he along with Ct. Chet Ram reached at Village Prahlad Pur where near one electric pole, blood was found. He corroborated the testimony of PW-11. SI Sandeep handed over rukka to him at 1.10 AM for registration of FIR and made request for calling the crime team at the spot. He went to PS and presented the rukka to duty officer HC Nagraj at about 1.20 AM, who registered the FIR. Duty officer handed over to him computer generated copy of FIR and original rukka to be presented to Inspector Avnish Tyagi. I reached the spot and handed over the copy of FIR and original rukka to Inspector Avnish Tyagi for further State Vs. Lalit @ Lucky SC No.715/17 :: 25 ::
investigation.
64. He along with Inspector Avnish reached BSA hospital where IO prepared inquest documents for conducting post mortem on the dead body of deceased. Dead body was identified by Jitender and Ramesh. Post mortem was conducted on the dead body. After the post mortem doctor/hospital handed over two exhibits duly sealed along with sample seal which were seized by the IO vide seizure memo Ex.PW-21/A.
65. Thereafter he along with IO and Ct. Chet Ram left in search of accused and reached at Village Prahlad Pur. They met Jitender and Smt. Manorma who also joined them in the search of accused Lalit @ Lucky. He corroborated the testimony of PW-1 regarding the arrest of accused, disclosure statement made by him and the recoveries made at the instance of the accused. IO prepared the site plans of the place of quarrel, place of stabbing which are already Ex.PW-1/B and PW-1/C. IO also prepared the site plan of place of recovery of knife, motorcycle and mobile which is Ex.PW-21/B. He identified the accused correctly and also the case property.
66. During cross-examination by the Ld. Amicus Curiae he deposed that he received the information at about 11 PM. He does not know if SI Sandeep made departure entry while State Vs. Lalit @ Lucky SC No.715/17 :: 26 ::
leaving the PS. They left the PS immediately after receiving the information on bike. They reached at the spot after 5 minutes. He does not know whether the public persons were present at the spot. He does not know who told SI Sandeep that the injured (now deceased) was taken to BSA hospital. He does not know whether any exhibits were lifted from the spot. He denied the suggestion that there was no electricity pole at the alleged spot or that there was no source of light at the spot. He does not remember the exact time when they left for the hospital. He also does not know the exact time when they reached at BSA hospital. Manorma did not give statement in her own handwriting. He left the hospital at 1.10 AM with the rukka. He reached the PS within 10 minutes. He had not gone through the rukka. He handed over the rukka to duty officer at 1.20 AM. The duty officer handed over the copy of FIR and rukka to him after about 30/45 minutes. He reached the spot along with copy of FIR and original rukka at about 2 AM. Jitender and Smt. Manorma were present at the spot when he reached there along with rukka and copy of FIR.
67. He does not know at what time IO received secret information about the accused. They had not gone to the house of accused before his apprehension. They went in search of accused at about 2.30 or 3 AM from the spot. The State Vs. Lalit @ Lucky SC No.715/17 :: 27 ::
secret informer met the IO and not to him during investigation. No site plan of the place of apprehension was prepared. No photograph was taken of the place of apprehension. He does not remember whether there was any source of light at the place of arrest. He denied the suggestion that accused was called from his house for inquiry and later on he was falsely arrested by the IO in the present case.
68. He does not know the house no. of the accused. The house number in the village is not in sequence. Family members of the accused were present at home. He does not know if the family members of accused were joined as witness. He does not remember if the photographs of the place of recovery of knife were taken or not. However the site plan of the house from where the knife, motorcycle, ignition key and mobile phone were recovered was prepared. No chance prints were lifted from the knife, motorcycle, key and mobile phone. The bed sheet and the pillow were not seized.
69. Inspector Avnish Tyagi was examined as PW-22. He deposed that In the intervening night of 20 and 21.07.2017 he received information regarding a boy stabbed with knife, house no.71 Village and Post Office Prahald Pur Camp Wali Gali. He received copy of FIR and original rukka through HC Siddharth for further investigation. He reached the spot State Vs. Lalit @ Lucky SC No.715/17 :: 28 ::
where he met SI Sandeep, Jitender, Smt. Manorma and Ct. Chet Ram. SI Sandeep handed over him the MLC and apprised him the facts of the case. He prepared site plan of the place where altercation took place Ex.PW-1/B and also the place where the incident of stabbing took place PW-1/C. He recorded statements of witnesses.
70. He along with HC Siddharth reached at BSA hospital where he prepared inquest documents i.e. form 25.35 Ex.PW-22/A and prepared application Ex.PW-22/B for conducting post mortem on the dead body of deceased. Dead body was identified by Jitender and Ramesh vide their statements already Ex.PW-3/A and PW-2/A. Post mortem was conducted on the dead body. After the post mortem doctor/hospital handed over two exhibits duly sealed along with sample seal which were seized by him vide seizure memo already Ex.PW-21/A bearing my signature at point B. Dead body was handed over to the relatives of deceased vide memo Ex.PW-2/A.
71. He corroborated the testimony of PW-1, PW19 and PW-21 regarding arrest of accused, disclosure statement by the accused and the recoveries at the instance of accused persons.
72. On 18.08.17 he received the post mortem report already Ex.PW-12/A. He collected the photographs taken by State Vs. Lalit @ Lucky SC No.715/17 :: 29 ::
mobile crime team photographer and placed the same on record. He collected the PCR form and placed the same on record.
73. On 17.10.17 Inspector Manohar Lal accompanied him to the scene of crime and he took measurements and prepared rough notes for preparing scaled site plan of two places.
74. On 18.10.17 Inspector Manohar Lal prepared scaled site plans Ex.PW-13/A and PW-13/B and the site plans were placed on record.
75. On 21.07.17 he handed over his seal to Smt. Manorma in presence of HC Siddharth which was returned to him by her on 23.07.17. On 21.07.17 he prepared handing over of seal memo Ex.PW-22/C.
76. On 02.02.18 he sent exhibits through Ct. Jagjeet to FSL, Rohini. He prepared the charge sheet which was forwarded by SHO and sent to court by ACP concern.
77. On 19.05.18 he filed the FSL result dt.09.03.18 Ex.PW-17/A. He correctly identified the accused. He also identified the case property.
78. During cross-examination by Ld. Amicus Curiae he deposed that he received the information from SHO that the investigation is being handed over to him. SHO informed him at about 1.15 a.m. on 21.07.17 to take over the investigation. State Vs. Lalit @ Lucky SC No.715/17 :: 30 ::
SHO did not visit the spot in his presence. Some public persons were present on the spot when he reached there. He made inquires from those public persons but none of them claimed to be an eye witness. He visited the house of accused after recording the statement of Jitender and supplementary statement of Manorama. They reached the house of accused at 5.00 a.m. Manorama and Jitender were present on the spot when he reached there at about 1.30 or 2.00 a.m. Father of accused namely Satish was present at the ground floor and elder brother of accused namely Sumit was on the first floor. He did not record the statement of father or the brother of the accused. However, he made inquires from them.
79. He admitted that the site plans Ex.PW1/B, Ex.PW1/C, and Ex.PW21/B do not bear the signatures of Manorama Devi and Jitender. He prepared the site plans at their respective spots. It took about 03 hours in the proceedings conducted on the spot. No public person joined investigation during three hours proceedings. No public person joined investigation being a matter of their village.
80. He did not take the photographs or did videography of the spot. He reached BSA Hospital mortuary at about 10.00 a.m. for the postmortem examination. He left the hospital at about 12.30 p.m. After leaving the hospital, he went in search State Vs. Lalit @ Lucky SC No.715/17 :: 31 ::
of accused with HC Sidharth at village Prahlad Pur and Shahbad Dairy. They took Manorama and Jitender from their house at about 3.30 p.m. after receiving the secret information. He did not lodge any DD entry regarding the secret information and regarding search of accused.
81. He received the secret information at about 3.15 p.m. in Sahabad Dairy. The secret informer had personally met and informed him. They visited at the place of arrest in his car. He did not search any particular house during the search of accused. Manorama and Jitender were not present with him when he received the secret information. The distance between the police station and the place of secret information was about 02 km. The distance between the police station and the place of arrest was about 03 km and the distance between Shahbad Dairy and place of arrest is about 02 km. He did not prepare the site plan of place of arrest of accused. No photography and videography was done at the time of arrest.
82. He does not know if Manorama was knowing how to read English language. He did not inquire from Manorama about her qualification. Accused was apprehended at about 4.00 p.m. The arrest memo was prepared at about 4.30 p.m. It is wrong to suggest that accused was not arrested from the place and manner as deposed by him.
State Vs. Lalit @ Lucky SC No.715/17 :: 32 ::
83. First of all, he prepared the arrest memo after apprehending the accused. He did not take any photograph of the rehari. He had mentioned the place where Umesh used to run his rehari in the site plan. He had not shown the rehri in the site plan separately.
84. The distance between the bank and the place of incident is about 60 to 70 meters. CCTV Cameras are installed in the bank. Bank is not in the street where incident took place. He did not notice any blood on the clothes of Manorama and Jitender. He did not seize the wearing clothes of Manorama and Jitender. He denied the suggestion that there is no electric pole in the gali or that he has falsely shown the electric pole just to show visibility at the place of incident.
85. He did not seize the pillow and the bed sheet. He did not join any family member/neighbour of accused at the time of recovery of knife, mobile and motorcycle. He did not take any photograph of the places of recovery of mobile, knife and motorcycle.
86. Sh. Israr Babu, Alternate Nodal officer, Vodafone Services Pvt. Ltd. was examined as PW-23. He proved the record of mobile phone no.7289039189. As per the customer Application Form Ex.PW-23/A this number was issued in the name of Lalit Sangwan son of Satish. Photocopy of State Vs. Lalit @ Lucky SC No.715/17 :: 33 ::
election I card annexed with the CAF is Ex.PW-23/B. The call detail record of this number for the date 20.07.17 is Ex.PW-
23/C. He proved the certificate under Sec.65 B of Evidence Act as Ex.PW-23/D.
87. During cross-examination by the Ld. Amicus Curiae he deposed that he does not remember the date when IO requested for obtaining the aforesaid documents.
88. Sh. Amit Sharma, Alternate Nodal officer, Reliance Communication Ltd. was examined as PW-24. He has proved the record of mobile phone no.8010946987. As per the customer application form Ex.PW-24/A this number is in the name of Manorma Devi wife of Umesh Kumar. Photocopy of election I card annexed with the CAF is Ex.PW-24/B. The call detail record of this number for the date 20.07.17 is Ex.PW-24/C. He proved the certificate under Sec.65 B of Evidence Act as Ex.PW-24/D. All these documents were provided to the police of PS SB Dairy vide letter Ex.PW-24/E.
89. During cross-examination by the Ld. Amicus Curiae he denied the suggestion that he has produced the forged and fabricated record or that he prepared false record at the instance of IO.
90. Thereafter prosecution evidence was closed.
Statement of accused was recorded u/s 313 Cr.PC, wherein he denied the entire evidence. He stated that he is innocent State Vs. Lalit @ Lucky SC No.715/17 :: 34 ::
and has been falsely implicated. He wished to lead evidence in defence. Thereafter, case was fixed for defence evidence.
91. Sh. Balwan Singh was examined as DW-1. He deposed that on 20.07.2017 at about 10:00 pm he was returning from temple. When he reached near Bank wali gali, he saw that 4-5 persons were beating one person. Because of darkness he could not see the faces of assailants and the person, who was beaten by assailants. He intervene but was threatened by the assailants due to fear he left the place and reached home. Next day in the morning he came to know that the person who was beaten had expired. He had placed on record the photocopy of his identity proof Ex.DW1/1.
92. During cross-examination by the Ld. APP for the State he stated that accused Lucky is residing in his village. The distance between his house and house of Lucky is about 100 meters. There is one motorcycle in the house of accused Lucky. He had not made any complaint to the police till date.
He did not visit police station to inform about the incident. Accused is his nephew as per relation in the village. He admitted that there is electric pole near Kunal provision store. Few court questions were put to the witness. Some of those questions are as follows:
Court Question: How those 4-5 persons were assaulting the person who was lying on the ground?
State Vs. Lalit @ Lucky SC No.715/17 :: 35 ::
Ans. They were giving him kick and fist blows. Vol. I do not know if they were carrying any weapon or not.
Court Question: Have you noticed blood on the clothes/ body of the person lying on the ground?
Ans. No. Court Question: Did you notice blood on the clothes /body of the assailants?
Ans. No.
93. Sh. Vicky was examined as DW-2. He deposed that on 20.07.2017 after taking dinner he come out of his house for strolling. It was about 11:00 pm. 3 -4 persons were calling somebody in the house of Bijender. One lady came out of the house of Bijender and inquired. Those persons said Umesh to 3-4 aadmi Bank wali gali mein maar peet kar rahe hain. That lady accompanied those 3-4 persons. He also reached Bank wali gali. Police was already there. Police made inquiries and the persons present there told that 3-4 persons have given beatings.
94. During cross-examination by Ld. APP for the State he stated that he cannot tell the names of the persons who were present on the spot but they were co-villagers. He did not tell the police that 3-4 persons were calling some male outside the house of Bijender and the lady came out. He cannot identify the lady who came out of the house of Bijender. The State Vs. Lalit @ Lucky SC No.715/17 :: 36 ::
tenant of Bijender used to sell chowmin on rehri. Q. How you come to know that you have to appear in the court No.305 today only?
Ans. Maine suna tha ki saare case 305 mein jate hain tau main yahin aa gaya.
Q. Who told you that all the cases come to court No.305? Ans. None.
95. Again said he asked his Tau ji as to what is the date and he told him that the date is 03 rd. He accompanied Satish and he asked him to appear in court No.305. He had not told Satish ji till date that he had seen 3-4 persons calling outside the house of Bijender and one lady came out of house of Bijender.
Court Question: Why did Satish ask you day before yesterday that you have to accompany him to the court? Ans. I told Satish ji that I had seen 3-4 persons near the house of Bijender calling some name and one lady came out of house of Bijender.
Court Question: Just before this answer you had stated that you had not informed Satish till date you had seen 3-4 persons outside the house of Bijender calling and a lady came out of the house of Bijender and now you said that you told this fact to Satish which of the two is correct? Ans. I told this fact to Satish day before yesterday and my State Vs. Lalit @ Lucky SC No.715/17 :: 37 ::
last statement is correct...
Court Question: Did you meet your tau ji and his family members after 20.07.17 and before 01.10.18? Ans. I met only on 01.10.18.
96. Thereafter, defence evidence was closed. Case was fixed for final arguments.
97. I have heard Ld. APP for the State, Ld. Amicus Curiae for the accused and perused the record.
98. Ld. Addl. PP submitted that in this case, there are two eye witnesses namely Smt. Manorama wife of deceased examined as PW-1 and Jitender examined as PW-19, both of them have fully supported the prosecution case and have also corroborated each other. Umesh used to put a chowmin rehri in front of Balmiki Temple. His wife Manorama (PW1) used to work in a factory. She also used to help her husband at the rehri after finishing her work in the factory. On 20.07.2017 after finishing her work, she reached at the rehri of her husband. As the raw chowmin was over, therefore, Umesh started on his bicycle to purchase raw chowmin. In the meanwhile accused, who is resident of the same village, came driving his motorcycle bearing registration no. DL-
7SDW-5166 Ex.PW8/Article-1 at a fast speed. Umesh barely escaped unhurt. He asked accused to drive carefully. On this, the accused got infuriated and said, "mere gaon main State Vs. Lalit @ Lucky SC No.715/17 :: 38 ::
basey ho aur mujhe hi aankhey dikhate ho, tujhe toh mein dekh lunga". Accused abused Umesh and went away. Umesh also went to purchase raw chowmin. At about 9:35 PM, accused made a call from his mobile phone no. 7289039189. The Customer Application Form of the same has been proved as Ex.PW23/A, which shows that it is in the name of the accused. The CDR of this mobile phone number is proved as Ex.PW23/C. The Certificate u/s 65-B of the Indian Evidence Act, has been proved as Ex.PW23/D. From this number he made a call on the mobile phone no.8010946987. The number 8010946987 is in the name of Manorama Devi (PW-1) w/o Umesh Kumar. The Customer Application Form of this mobile number is proved as Ex.PW24/A. The CDR is proved as Ex.PW24/C. The Certificate u/s 65-B of the Indian Evidence Act, has been proved as Ex.PW24/D. As per the call detail records Ex.PW23/C and Ex.PW24/C, a call was made at 21:35:30 hours from mobile phone number 7289039189 on mobile phone number 8010946987, thus corroborating the statement of PW-1 that at about 9:35 PM she received a call from the accused, who asked PW-1 to make him talk with her husband Umesh and when she told that her husband has gone for some work, the accused said that, "mein ussko aaj jaan se maar doonga" and disconnected the phone. She also State Vs. Lalit @ Lucky SC No.715/17 :: 39 ::
deposed that she talked with accused on mobile phone for 2- 3 minutes & call duration is of 167 seconds. The Addl. PP submitted that the testimony of PW-1 is corroborated by documentary evidence i.e. CDR and documents, which also shows that the mobile phone was owned by none else, but the accused.
99. Ld. Addl. PP further submitted that after receiving this call, PW-1 got frightened. When her husband returned back, she told the facts to him. They, thereafter, closed the rehri and started going towards their residential address i.e. the house of Bijender Singh, where they were living as tenants.
The fact that they were living as tenant in the house of Bijender Singh, is also not disputed by the defence also as DW-2 has admitted that Umesh along with his wife and children was residing there. When Umesh and Monorama (PW1) reached the corner of their street near Electric Pole at about 10:15 PM, Manorama saw Lucky i.e. accused standing near Electric Pole. Jitender PW19 had also reached there by that time. Accused caught hold the neck of Umesh with his left hand, pulled out a knife from the right side pocket of his pants and stabbed on the chest of Umesh. Ld. Addl. PP submitted that both PW-1 and PW-19 corroborated each other on this point. PW-1 also stated while stabbing, the accused said, "tu dhamki ka anjaam dekh le". Ld. Addl. PP State Vs. Lalit @ Lucky SC No.715/17 :: 40 ::
submitted that as there was Electric Pole and source of light was there, therefore there was clear visibility. PW1 is the natural witness as she was accompanying her husband at the relevant time. There is no evidence on record that she did not use to help her husband on the rehri and then return home along with him. She also deposed that they used to take only that route to return home. There is nothing on record that both witnesses PW-1 and PW-19 have any interest to falsely implicate the accused and let the actual culprit go scot free. Both are consistent that Lucky caught hold the neck of Umesh and stabbed on the chest.
100. Even in the PM Report Ex.PW12/A in the external examination column no.IX, the doctor has found one incised stab wound 2cm x 1cm obliquely placed present over the middle part of left side of front of chest, the margins are clean cut with the upper inner angle comparatively more obtuse and the lower outer angle more acute, the injury is 3cm from the midline and 6cm from the left nipple. Ld. Addl. PP submitted that the injury given was on the vital part of the body i.e. the left side of the chest. The blow was such that there was a cut in the right ventricle of the heart, 1.5 cm long and on the back with a cut 1.2 cm long. The pericardian was cut on the posterior side also with a cut of 1cm. Ld. Addl. PP submitted that the cut was so forceful that single blow was State Vs. Lalit @ Lucky SC No.715/17 :: 41 ::
sufficient to cause death.
101. So far as the identity is concerned, that is established by Smt. Manorama Devi (PW-1) and Jitender (PW-19). The accused was arrested at the instance of Smt. Manorama Devi (PW-1) and Jitender (PW-19) on the very next day. The accused got recovered the knife (Ex.PW1/Article-2) from his house. The witnesses i.e. Smt. Manorama Devi (PW-1) and Jitender (PW-19) fully corroborated the testimony of Inspector Avnish Tyagi (PW-22) and HC Siddharth (PW-21) regarding seizure of the knife. This knife was sent to the FSL.
The Biological and DNA examination was conducted and the report is proved as Ex.PW17/A. According to this report, blood was detected on the knife. The DNA was isolated from the blood found on the knife. The DNA isolated matched with the DNA of the deceased. There is no explanation by the accused as to how the blood of deceased reached the knife recovered from his house. This recovery of weapon of offence at the instance of the accused, further corroborates the testimony of Smt. Manorama Devi (PW-1) and Jitender (PW-19) and links him with the commission of offence.
102. Ld. Addl. PP further submitted that the accused also got recovered one mobile phone Ex.PW1/Article -1 from his house and it is the same phone, with which he made the call on the mobile phone of deceased. The motorcycle was also State Vs. Lalit @ Lucky SC No.715/17 :: 42 ::
recovered which is owned by his brother. There is no evidence on record that this motorcycle was not used by the accused.
103. Ld. Addl. PP further submitted that so far as the defence witnesses are concerned, DW-1 is not reliable at all. He being the neighbour of the accused and he suppressed this fact. But DW-2 stated that DW-1 is neighbour. DW-1 is also not remembering any other date except that day, which clearly shows that he has mugged up the date and was tutored. Ld. Addl. PP further submitted that according to this witness he had not seen blood on the clothes or body of the injured whereas the photographs of the body with the clothes clearly shows that there was lot of blood, if he would have been there, he must have noticed the blood. Even on the spot, the blood was lying. In the photographs itself the Electric Pole is visible. Ld. Addl. PP further submitted that keeping in view all these facts no reliance on DW1 can be placed. Even otherwise, according to DW-1, the 4-5 persons were giving kicks and fist blows to the deceased, but no such injury has been found on the body of deceased, which further falsifies the testimony of DW1.
104. Ld. Addl. PP further submitted that so far as DW-2 is concerned, he contradicted himself in his testimony before the court and is not a reliable witness. Ld. Addl. PP further State Vs. Lalit @ Lucky SC No.715/17 :: 43 ::
submitted that keeping in view these facts, the testimony of PW-1 and PW-19 coupled with the CDRs, Ex.PW23/C and Ex.PW24/C, the recovery of knife Ex.PW1/Article-2 and the detection of DNA of deceased on the knife, the recovery of motorcycle Ex.PW8/Articles-1, which is owned by none else but by the brother of accused, clearly proves and establishes that accused committed murder of Umesh as he could not digest the advise of Umesh that he should drive carefully, particularly when Umesh was an outsider, according to the accused.
105. Ld. Addl. PP further submitted that the onus, which was on the prosecution, has fully been discharged. It is prayed that the accused be held guilty and convicted for the offence punishable u/s 302 IPC.
106. Ld. Defence counsel submitted that the onus, which was on the prosecution, has not been discharged. Witnesses Smt. Manorama Devi (PW-1) and Jitender (PW-19) have been planted to solve the present case. They were not present there. The fact that Smt. Manorama Devi (PW-1) was not there, is evident from the testimony of DW-2, who stated that in the night at about 11:15 when he was roaming in the street, he noticed few persons calling outside house of Bijender Singh, one lady came out, those persons told that lady that "Umesh ke saath maar-peet ho rahi hai" and that State Vs. Lalit @ Lucky SC No.715/17 :: 44 ::
lady accompanied those persons.
107. Ld. Defence counsel submitted that in fact Smt. Manorama Devi (PW1) was at home at that time and was not present there. She reached there only after coming to know about the incident. She did not remove Umesh to hospital that is why her name is not there in the MLC Ex.PW15/A. Even in the body of MLC, it is not mentioned that Umesh was brought by Manorma or any of his relative. The fact itself create doubt about her presence on the spot.
108. Ld. Defence counsel submitted that so far as Jitender is concerned, he was not in Delhi at the relevant time. He was not residing with Manorama Devi (PW1) and Umesh. There is no mention in the statement of Smt. Manorama Devi (PW1) that Jitender was residing with them. No other witness deposed that Jitender was there. Even the witness i.e. SI Sandeep (PW11) does not say that Jitender met him either at the spot or in the hospital. PW-20 and PW-21 were also with PW-11 SI Sandeep when they visited the spot and the hospital. They are also silent about presence of Jitender.
109. Ld. Counsel for the accused further submitted that this fact clearly shows that Jitender was not present and was introduced later on.
110. Ld. Counsel further submitted that Smt. Manorma Devi PW1 and Sh. Jitender PW19 both deposed that their clothes State Vs. Lalit @ Lucky SC No.715/17 :: 45 ::
were stained with blood. They did not hand over their blood stained clothes to police. Ld. Counsel submitted that it was material piece of evidence to prove and establish that they removed Umesh to the hospital. In fact, they were not present on the spot and also did not remove Umesh to the hospital, that is why their clothes were not stained with blood. Only due to this reason their clothes were not seized.
111. Ld. Counsel further submitted that in fact Manorma and Jitender were joined later on and the record was thereafter, manipulated. The FIR was ante time. The fact that FIR was ante time is evident from the statement of PW1 herself where she deposed that recording of her statement and statement of Jitender was concluded at 2.30 a.m. That record shows that FIR was registered at 1.20 a.m. as reflected in Ex.PW14/A. Ld. Counsel submitted that this clearly shows that FIR is manipulated and is ante time.
112. Ld. Counsel submitted that according to the prosecution PW1 told them the name of the accused but despite that according to PW1 they did not visit the house of the accused before his apprehension. This testimony of PW21 is contradicted by PW22 who deposed that he visited the house of accused at 5.00 a.m. but accused was not found there. Ld. Counsel submitted that this contradiction in the testimony of PW21 & PW22 creates the doubt about the State Vs. Lalit @ Lucky SC No.715/17 :: 46 ::
truthfulness of the story of prosecution. Ld. Counsel submitted that the incident took place at public place as deposed by PW1 as well as PW19. Public persons were also there but no independent witness had been joined/ examined about the incident and also at the time of alleged recovery. Ld. Counsel submitted that even no neighbour was joined. Family members of accused were also present but they were also not joined. Ld. Counsel submitted that in fact no knife, mobile phone and motorcycle were recovered. These were planted and that is why no public witness was joined. Ld. Counsel further submitted that even in the site plans Ex.PW1/B, Ex.PW13/A and Ex.PW13/B the position of witnesses is not shown. If they would have been present there, IO must have shown their position in the site plans. This fact also create doubt regarding their presence at the spot.
113. Ld. Counsel further submitted that FIR number was also not mentioned in the inquest papers. If FIR could have been registered at 1.20 a.m. as reflected in Ex.PW14/A then, the FIR number must have been mentioned in the inquest papers. Non mentioning of FIR number in the inquest papers, clearly shows that FIR was registered later on.
114. Ld. Counsel further submitted that according to PW1 at 9.35 p.m. accused made the call on the mobile phone of State Vs. Lalit @ Lucky SC No.715/17 :: 47 ::
her husband. There is nothing on record that accused was knowing the mobile phone number of Umesh or that on earlier occasions also he made any call on the mobile phone of Umesh. The onus was upon the prosecution to prove and establish this fact which the prosecution has failed. Ld. Counsel submitted that in fact accused never made any call to the deceased. On that day and at relevant time, one of his friend took the mobile phone and made the call. Accused does not know to whom his friend made the call. The call detail record has been manipulated. The prosecution has not been able to prove that call was made only by the accused and none else.
115. Ld. Counsel submitted that there is also delay in sending the exhibits to FSL. As per the story of the prosecution, the knife was allegedly recovered on 21.07.17. The case property was sent to FSL only on 02.02.18 after a considerable delay of 7 months. This delay in sending the exhibits to the FSL creates doubt that the case property was tampered with and that is why it was not sent earlier.
116. Ld. Counsel submitted that blood on the knife was planted. The knife was also not shown to autopsy surgeon to take the opinion as to whether the injury found on the person of deceased could be caused with this knife. Ld.counsel submitted that in fact investigating agency was knowing that State Vs. Lalit @ Lucky SC No.715/17 :: 48 ::
this knife was not used in commission of offence and that is why the subsequent opinion was not taken.
117. Ld. Counsel submitted that in fact Umesh was beaten by 4-5 persons as deposed by DW1 and not by the accused. DW1 has stood through the test of cross-examination. DW1 is reliable and trustworthy. In view of the testimony of DW1 and the fact that the presence of Smt.Manorma Devi PW1 and Sh.Jitender PW19 on the spot is doubtful. They have made improvements in their statements, hence, no reliance on their statements can be placed. Ld. Counsel in support of his arguments relied upon the judgments cited as Jarnail Singh v State of Punjab, (2009) 3 SCC 391, wherein it was held that:
"16. According to the prosecution the incident took place on 15.11.1993 at about 6.30 p.m. which was an incident happening on an evening of the winter season. The deceased who was the brother of PW-7 was allegedly driving the van which was parked at the place of incident with windows open and headlights on, which meant that it was dark at that point of time. Although it was a winter night still the windows of the car were kept open, for which according to the prosecution, PW-7 could see the entire incident. In the first information report PW-7 stated that initially a knife blow was given by the deceased to the accused and thereafter the accused gave two knife blows to the deceased, which resulted in his death and consequently his body came out of the window. The aforesaid version as stated in the first information report, was however, later on changed and altered when PW-7 deposed in the court that the accused after giving two knife State Vs. Lalit @ Lucky SC No.715/17 :: 49 ::
blows to the deceased attempted to commit suicide by plunging the knife in his chest. In support of the said contention reliance was placed on the evidence of the doctor who has stated during his examination that the aforesaid injury on the accused could have been self inflicted also. PW-7 is said to be the eye witness who has allegedly seen the entire occurrence including the exchange of hot words between the appellant and the deceased in a winter night and that also when it was totally dark. According to him, he could see the entire incident in the light of the headlight of the car.
17. The aforesaid statement of PW-7 does not appear to be trustworthy and reliable for the simple reason that even though the headlight of the car was on, it would be lighting only the front portion and not the side of the car and may not even have lighted sufficiently to enable PW 7 to see as to what had happened inside the car. Although it was a winter night it is not stated nor understood as to why the windows of the car were kept open. It is also not stated by PW-7 that he had made any effort to help or render assistance to stop the verbal dual between the accused and the deceased or took any effective steps to stop the stabbing on both the persons. PW-7 had further stated that his brother was a driver of the van and that the incident had happened because he was unwilling to take the vehicle by the village path.
However, in his deposition he has stated that his brother was seated at the back seat alongwith the deceased. It is not understood as to why the driver of the vehicle driving the car would seat in the back seat of the car instead of driving the car from the front seat. Presence of PW-7 at the spot at that point of time was also providential and he has been examined only as a chance witness. The other alleged eye witness namely Chanan Singh, Member Panchayat of village Kasiana was not examined at all on the ground that he was won over by the accused. Manjit Singh, Sarpanch who is stated to be the last and third eye witness turned hostile. Therefore, out of the three eye witnesses' one has become hostile whereas the State Vs. Lalit @ Lucky SC No.715/17 :: 50 ::
other was not examined at all by the prosecution and we have only one eye witness PW-7, who happens to be the brother of the deceased. If his evidence is discarded there is no other evidence on the basis of which the accused could be convicted.
It is no doubt true that conviction could be based on the sole testimony of a solitary eye witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh v. State of Haryana, [(1976) 1 SCC 879] this Court held that what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fall by the evidence of single witness, it is necessary to examine that evidence critically."
118. Ld. Defence Counsel also relied upon the judgment cited as Thulia Kali v The State of Tamil Nadu, AIR 1973 SC 501, wherein it was held that:
"13. As regards the alleged recovery of knife and ornaments at the instance of the accused, we find that the evidence consists of statements of Inspector Rajagopal (PW 13), Kali Goundar (PW 6) and Chakravarthi (PW 9). According to Chakravarthi (PW 9), the accused handed over the ornaments in question to the witness when the accused came to the house of the witness on the evening of March 12, 1970 and passed the night at the house. The witness also found knife in the bed of the accused after he had left on the following day. According however, to Kali Goundar (PW 6) the accused on interrogation by the Inspector of Police, stated that he had entrusted the State Vs. Lalit @ Lucky SC No.715/17 :: 51 ::
ornaments to Thangam, wife of Chakravarthi (PW 9). Apart from the discrepancy on the point as to who was the person with whom the accused had kept the ornaments we find that Thangam with whom the accused according to Kali Goundar PW had kept the ornaments, has not been examined as a witness. In view of the above statement of Kali Goundar, it was, in our opinion, essential for the prosecution to examine. Thangam as a witness and its failure to do so would make the Court draw an inference against the prosecution.
14. It is also not clear as it why the accused should leave knife Ex. 1 in his bed in the house of Chakravarthi (PW 9) when he had ample opportunity to throw away the knife in some lonely place before arriving at the house of Chakravarthi. The knife in question was found by Chemical Examiner to be not stained with blood and according to the prosecution case, the accused had washed it before leaving it in the bed in the house of Chakravarthi. If the accused realised the importance of doing away with the blood stains on the knife, it does not seem likely that he would bring that knife to the house of Chakravarthi and leave it in the bed.
15. Looking to all the circumstances, we are of the view that it is not possible to sustain the conviction of the accused on the evidence adduced. We accordingly accept the appeal, set aside the conviction of the accused-
appellant and acquit him."
119. Ld. Counsel submitted that even otherwise this case is not a case of murder as per the evidence collected and the postmortem report there was only single injury. There is also nothing on record that accused has any intention to cause death. He only wanted to teach a lesson but unfortunately Umesh died. Ld. Counsel submitted that keeping in view all these facts no offence punishable under Section 302 IPC is State Vs. Lalit @ Lucky SC No.715/17 :: 52 ::
made out. At the most, it can be said that this case falls U/s 304 (II) IPC. Ld. Defence counsel in support of his arguments relied upon judgment cited as Baljeet Singh v State (Delhi), 2018 (2) JCC 1031 wherein it was held that:
6. After having heard both the sides and on perusal of evidence on record and the decision cited, we find that instant case is of causing of solitary injury on the left side of the chest with a knife to deceased on account of a quarrel. In a somewhat similar case of Pappu Alias Hari Om vs. State of Madhya Pradesh, 2009 (2) JCC 1333:(2009)11 SCC 472 (Supra), accused had fired a single shot on the chest od deceased, as a consequence of exchange of hot words and Supreme Court had altered the conviction from section 302 to Section 304 Part II of IPC and also reduced the sentence awarded to accused from 'imprisonment for life' to rigourous imprisonment for eight years'.
120. Ld. Defence Counsel has further relied upon the judgment cited as State v Manoj, (2016) 3 AD Delhi 73, wherein it was held that:
"17. It is now to be considered whether the circumstances in which Manoj committed the offence would fall under Section 302 I.P.C. or 304 IPC. Admittedly it was not a pre-meditated attack by Manoj. Just half hour prior to the incident of stabbing, an altercation and scuffle took place between the two parties wherein Sukhbir, his sister and sister-in-law were on the one side and Kallo, Dhappo and Sanjay on the other side. Both parties received injuries. The police came and took away Dhappo and Sanjay. After the incident Sukhbir again went to Kallo of his own volition though ostensibly to apologise however, as stated by Trikha Devi an altercation ensued, Manoj being the maternal grandson of Kallo got alarmed and intervened to save the grandmother who had earlier also State Vs. Lalit @ Lucky SC No.715/17 :: 53 ::
received injuries as admitted by Trikha Devi herself. The knife used was ordinary knife available with the fruit vendors. Hence the offence committed by Manoj would fall under Section 304 Part-II IPC and not under Section 302 I.P.C."
121. Ld. Defence Counsel has further relied upon the judgment cited as Gurmukh Singh v State of Haryana, (2009) 15 SCC 635 wherein it was held that:
"21. In the instant case, the occurrence had taken place at the spur of the moment. Only the appellant Gurmukh Singh inflicted a single lathi blow. The other accused have not indulged in any overt act. There was no intention or pre- meditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature.
22. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under section 302 Indian Penal Code, but the appropriate section under which the appellant ought to be convicted is section 304 Part II Indian Penal Code. "
122. It is prayed that accused be acquitted.
123. Ld. Addl. PP further submitted that there is no requirement of law that in the inquest proceedings, the FIR number is required to be mentioned. The purpose of proceedings u/s 174 Cr.PC is merely to ascertain whether a person has died under suspicious circumstances or it is an unnatural death and if so what is the apparent cause of the death. Ld. APP in support of his arguments relied upon the judgment cited as Khujji alias Surendra Tiwari v. State of State Vs. Lalit @ Lucky SC No.715/17 :: 54 ::
Madhya Pradesh, AIR 1991 SC 1853, wherein it was held that:
"8. It was faintly submitted by counsel for the appellant that the evidence of eye-witnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point' of time. We see no force in this submission in view of the clear pronouncement of this Court in Pedda Narain v. State of Andhra Pradesh, 1975 Supp. SCR 84.
Referring to section 174 of the Code of Criminal Procedure this Court observed at page 89 as under:
"A perusal of this provision would clearly show that the object of the proceedings under section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report"."
124. After hearing the arguments and going through the record, I found that this case is based upon the direct evidence. Prosecution has relied upon and examined two eye witnesses i.e. Manorama Devi (PW1) and Jitender (PW-
19). Manorama Devi is wife of the deceased and Jitender is nephew of the deceased. The defence has disputed the presence of Manorama Devi (PW1), firstly on the count that her name is not mentioned on the MLC in the column of brought by. In my opinion this fact by itself does not disprove State Vs. Lalit @ Lucky SC No.715/17 :: 55 ::
the presence of Manorama (PW1) as well as Jitender (PW19) on the spot as Umesh was shifted to hospital in Ambulance wherein Manorama and Jitender accompanied as deposed by both PW-1 and PW-19. The police witness SI Sandeep (PW11) also deposed that when he reached at the spot he came to know that injured had already been removed to the hospital. In the hospital he found Manorama Devi and he recorded her statement. There is no such provision or rule of prudence that if the name of the person who removed the injured to the hospital is not mentioned in the MLC, then it disproves that he has not removed him to the hospital particularly when the hospital authorities has not mentioned anything in that column and the column is blank. If there would have been the name of some other person the position would be different. In this regard the document Ex.PW4/A is also important. It is the PCR form. It is mentioned in the PCR form, "quarrel mein brought dead hai, village mein hi jhagda hua hai. Iski wife ise le kar aayi hai, Shahbad Dairy".
It is important to mention here that PW5 recorded this PCR form after receiving information from mobile number 9718296757. The testimony of the witness has gone unchallenged and uncontroverted. Ct. Tarun PW7 also deposed that Umesh was got admitted in the hospital by his wife Manorama and one person Jitender on the intervening State Vs. Lalit @ Lucky SC No.715/17 :: 56 ::
night of 20/21.07.17 at 11 p.m. Ct. Tarun was working as Duty Constable in BSA Hospital at that time. The testimony of PW7 has also gone unchallenged and uncontroverted. The testimony of PW7 and the document Ex.PW4/A clearly shows that and establishes that Umesh was taken to the hospital by none eles but his wife Manorama PW1 and Jitender PW19.
125. Defence has also tried to contend that both PW1 and PW19 stated that their clothes were stained with blood while shifting Umesh to the hospital, but their clothes have not been seized by the police and they have also not handed over their clothes to the police. I have gone through the testimony of PW1 and PW19, they both stated that their clothes were stained with blood. They themselves did not handover their clothes to the police. Police also did not ask them to handover their clothes. It is also important to note that both PW1 and PW-19 are not very much literate. They does not know the implications of the investigation and the importance of the blood stained clothes. It was the duty and responsibility of the IO to seize those clothes, which the IO has not performed. Merely because the IO was negligent in discharge of his duties, a person cannot be disbelieved.
126. The defence has also challenged the presence of Manorama Devi on the strength of testimony of DW-1. I have State Vs. Lalit @ Lucky SC No.715/17 :: 57 ::
gone through the testimony of DW-2 and has rightly pointed out by Ld. Addl. PP, he is not reliable. He has changed his stand many a times while deposing before the court. Firstly, he said that he came alone to the court, then he said that he came along with the father of the accused to depose. He also stated that he came to know in the village that all cases are taken up in court no. 305, therefore he reached court no.305 but later on stated that he was told by the father of the accused that he has to reach room no.305 to depose. He also stated that he had not told this fact to anybody that he saw some persons calling in front of the house of Bijender and thereafter, one lady came out of the house of Bijender and they told him that, "Umesh ke saath maar-peet ho rahi hai", and the lady accompanied those persons, but later on he stated that he told this fact to the father of the accused only two days ago. All these facts, clearly show that witness was deliberately trying to make out a case that he has come to the court of his own and was entangled in the same and thereafter, he has to tell the truth. Keeping in view all these facts, I don't find DW-2 reliable and trustworthy. In my opinion, it would not be safe to place reliance on his statement. Even otherwise he does not say that lady who came out was Manorama PW1.
127. Keeping in view the testimony of PW-1 and PW-19, I State Vs. Lalit @ Lucky SC No.715/17 :: 58 ::
found that they are reliable and trustworthy. Merely because they are related to the deceased, does not mean that they are interested witnesses. The testimony of eye witness cannot be discarded merely because he is a relative. There is nothing on record to show that PW1 and PW-19 have any interest to save the actual culprits and to falsely implicate the accused. The reliance in this regard can be placed on the judgment cited as Bur Singh v. State of Punjab, AIR 2009 SC 157 where in it was held:
"6. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
7. In Dalip Singh and Ors. v. The State of Punjab, (AIR 1953 SC 364) it has been laid down as under :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and State Vs. Lalit @ Lucky SC No.715/17 :: 59 ::
falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
8. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan, (1974(3) SCC 698) in which Vadivelu Thevar v. State of Madras, (AIR 1957 SC 614) was also relied upon.
9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed :
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -
'Rameshwar v. State of Rajasthan,' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the State Vs. Lalit @ Lucky SC No.715/17 :: 60 ::
arguments of counsel."
10. Again in Masalti and Ors. v. State of U.P., (AIR 1965 SC 202) this Court observed : (p. 209-210 para 14) :
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
11. To the same effect is the decisions in State of Punjab v. Jagir Singh, (AIR 1973 SC 2407), Lehna v. State of Haryana, (2002(3) SCC 76) and Gangadhar Behera and Ors. v. State of Orissa, (2002(8) SCC 381).
12. The above position was also highlighted in Babulal Bhagwan Khandare and Anr. v.
State of Maharashtra, 2005(1) RCR(Criminal) 137 : 2005(1) Apex Criminal 1 : [2005(10) SCC 404] and in Salim Saheb v. State of M.P., 2007(1) RCR(Criminal) 924 : 2007(1) RAJ 584 : (2007(1) SCC 699).
13. As noted above, stress was laid by the accused-appellants on the non- acceptance of evidence tendered by PW-3 to contend about desirability to throw out the entire prosecution case. In essence the prayer is to apply the principle of "falsus in uno falsus in omnibus"
(false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other State Vs. Lalit @ Lucky SC No.715/17 :: 61 ::
accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh, (AIR 1957 SC
366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and Anr. v.
State of Punjab, (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony was to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, State Vs. Lalit @ Lucky SC No.715/17 :: 62 ::
embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh, (1972(3) SCC 751) and Ugar Ahir and Ors. v. The State of Bihar, (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh, (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab, (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc., 2002(2) RCR(Criminal) 567 : (JT 2002(4) SC 186)."
128. Reliance can also be placed on Kalegura Padma Rao v. State of A.P., AIR 2007 SC 1299:
"8. In regard to the interestedness of the witnesses for furthering the prosecution version, relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual State Vs. Lalit @ Lucky SC No.715/17 :: 63 ::
culprit and make allegations against an innocent person. Foundation has to be laid if a plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
9. In Dalip Singh and Ors. v. The State of Punjab AIR 1953 Supreme Court 364 it has been laid down as under :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
10. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras AIR 1957 Supreme Court 614 was also relied upon.
11. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed :
State Vs. Lalit @ Lucky SC No.715/17 :: 64 ::
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan AIR 1952 Supreme Court 54 at p.59. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
12. Again in Masalti and Ors. v. State of U.P. AIR 1965 Supreme Court 202 this Court observed : (p. 209-210 para 14) :
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
15. In S. Sudershan Reddy v. State of A.P. (AIR 2006 SC 2716), it was observed;
relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
129. PW-1 has specifically stated that on that date she State Vs. Lalit @ Lucky SC No.715/17 :: 65 ::
reached the rehri of her husband, though there is a difference of time. In her examination in chief she stated that she reached the rehri on that day at 8:00 PM and during cross-examination, she stated that she reached the rehri at 7:00 PM, but this does not make any difference as the incident took place thereafter. This contradiction in the time, also does not go to the root of the case. Therefore, in my opinion this contradiction is of no help to the defence. She deposed that the raw chowmin on the rehri was over, therefore, her husband was going to purchase raw chowmin. When her husband had gone few steps from the rehri on his bicycle, the accused came driving his motorcycle Ex.PW8/Article-I at a very fast speed. Her husband was barely saved. The accused has taken the plea that motorcycle Ex.PW8.Article-1 was never driven by him and also on that date. Prosecution examined Sumit (PW8) the owner of the motorcycle, who is also the real brother of the accused, but he did not support the contention of the accused. In fact, no such question was put to the witness during cross-examination that this motorcycle was never used by the accused. Under the circumstances and in view of testimony of PW1 & PW8, I do not find merit in this contention of Ld. Defence counsel.
130. PW-1 further stated that her husband asked the State Vs. Lalit @ Lucky SC No.715/17 :: 66 ::
accused to drive carefully. On this, the accused got agitated. He started abusing Umesh and also said, Mere gaon main basey ho aur mujhe hi aankhey dikahate ho, tujhe toh mein dekh lunga". Thereafter accused went away. Umesh went to purchase the raw chowmin. This testimony of PW1 clearly shows that the accused was infuriated by the fact that a person, who has come to Delhi from outside and residing in his village had asked him to drive carefully. Accused made a call on the mobile phone of the deceased. Ld. Counsel has raised a plea that there is no evidence from where the accused got the number of Umesh, but I don't find any merit in this contention as the call detail records Ex.PW23/C and Ex.PW24/C clearly show that at about 9:35 PM a call is made from the mobile phone no.7289039189, which is in the name of Lalit, the accused, on the mobile phone number 8010946987 which is in the name of PW1. The call duration is 167 seconds. The CDR corroborates the testimony of PW1 that a call was made by the accused on the mobile phone of Umesh. Ld. Counsel has taken the defence that some friend of the accused has taken mobile phone from him and made a call. It is important to note here that accused has opted to lead evidence in defence but has not examined his so called friend, who made the call and has also not told the name of the so called friend. This, in my opinion, is only an after State Vs. Lalit @ Lucky SC No.715/17 :: 67 ::
thought to some how come out of the CDR evidence which have been proved on record. In view of the testimony of PW-
1 corroborated by the CDRs Ex.PW23/C and Ex.PW24/C, it is clear that the accused made a call on the mobile phone of Umesh, which is in the name of Manorama (PW1).
131. Manorama (PW1) deposed that accused extended threat that he would kill Umesh. She was frightened. When her husband returned, they immediately closed the rehri and started coming back to their rented accommodation. The defence has taken the plea, if they have frightened they should have made a complaint to the police. In my opinion, there is no such straight jacket formula that a person should behave in particular manner in particular set of circumstances. The human behaviour is very complex and merely because no complaint was made to the police does not by itself establish that no threat was received.
132. PW1 while going with her husband reached at the corner of the street, where she was residing happily with her husband and children. She noticed the accused standing under the Electric Pole. Jitender had also seen Umesh coming home alongwith Manorama. Accused caught hold the neck of Umesh and stabbed on the left side of his chest after taking out a knife from the right pocket of his wearing pants. They both corroborated and supported each other on this State Vs. Lalit @ Lucky SC No.715/17 :: 68 ::
aspect. Defence has taken the plea that Jitneder was not residing with Manorama or that is why Manorama has not stated that Jitender was living with her. I do not find any merit in this contention particularly when there is no cross- examination of PW1 on the aspect as to whether Jitender was residing with her or not and secondly as defence has failed to breach the trustworthiness and credibility of Jitneder during cross-examination. There is nothing on record to show that Jitender was not there.
133. Both the witnesses stated that accused gave only one blow with the knife on the left side of the chest of Umesh. This testimony of PW1 and PW-19 is corroborated by the postmortem report Ex.PW12/A. According to the postmortem report there is only one incised stab wound on the left side of the chest. Ld. Counsel has taken the plea that the doctor has not mentioned about the depth of the wound, but I found that the internal examination conducted by the doctor itself shows that the blow was so forceful and wound was so deep that it has cut the right ventricle on the back and also the pericardium on the anterior as well as posterior side. Therefore, I do not find any merit in this contention.
134. Ld. Defence counsel has taken the plea that the knife was not shown to the doctor PW-12 to take the opinion whether the injury found on the person of deceased could be State Vs. Lalit @ Lucky SC No.715/17 :: 69 ::
caused by this weapon. In my opinion this is a important factum but keeping in view the fact that the knife was examined in FSL and the blood was detected on the knife. The DNA was also isolated, which matched with the DNA of the deceased. There is no explanation from the defence as to how the blood of the deceased reached on the knife recovered at the instance of the accused. This matching of DNA clinches the issue that this knife was used in the commission of the offence. Under the circumstances, in my considered opinion, even if no subsequent opinion is taken from the doctor with respect to the knife that does not effect the merits of the case particularly when PW1 and PW-19 have also identified the knife i.e. Ex.PW1/Article-1.
135. The defence has taken the plea that the FIR is ante time as according to PW1 her statement and statement of PW19 was concluded at 2:30 AM. The record shows that the FIR was registered at 1:20 AM. I have gone through the record particularly the evidence of PW1, I found that PW1 has specifically stated that her statement was recoded by the police in the hospital at 12:30 AM. PW-19 and PW-11 also deposed that statement of Manorama was recorded in the hospital. From the statement of Manorama, it is clear that her statement was recorded at 12:30 AM therefore, the FIR can rightly be registered at 1:20 AM as is also evident from the State Vs. Lalit @ Lucky SC No.715/17 :: 70 ::
FIR Ex.PW14/A. From the testimony of PW1 and statement of PW11, I do not find any merit in the contention that FIR is ante time.
136. Ld. Defence counsel has also taken the plea that the FIR number is not mentioned on the inquest papers, which clearly shows that till the postmortem was conducted, the FIR was not registered. FIR was registered later on and ante time. I have gone through the inquest papers. In the application for postmortem and even on the statements regarding identification of the dead body the FIR number is mentioned, therefore. The contention itself is wrong. Even otherwise, the purpose of the proceedings u/s 174 Cr.PC is not as to who is the eye witness and at what time the FIR was registered but only to find out if it is unnatural death and the cause of death as held by Supreme Court in the case of Khujji @ Surender Singh (Supra) wherein it was held that:
"8. It was faintly submitted by counsel for the appellant that the evidence of eye-witnesses could not be relied upon as their names did not figure in the inquest report prepared at the earliest point' of time. We see no force in this submission in view of the clear pronouncement of this Court in Pedda Narain v. State of Andhra Pradesh, 1975 Supp. SCR 84.
Referring to section 174 of the Code of Criminal Procedure this Court observed at page 89 as under:
"A perusal of this provision would clearly show that the object of the proceedings under section 174 is merely to ascertain whether a person has died under suspicious circumstances or an State Vs. Lalit @ Lucky SC No.715/17 :: 71 ::
unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under section 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report"."
137. So far as recovery of knife is concerned, the prosecution has examined four witnesses i.e. PW-1, PW-19, PW-21 and PW-22. All the four witnesses have fully supported and corroborated each other. PW1 and PW19 are public witnesses. No doubt the family members of the accused, who were present at home at the time of recovery and even the neighbours could not be joined. But as two public witnesses were already with the police and all the four witnesses mentioned above have fully supported and corroborated each other. In my view their testimony cannot be discarded simply because no neighbour was joined. The recovery of knife Ex.PW1/Article-1, the recovery of mobile phone Ex.PW1/Article-2 and the motorcycle Ex.PW8/Article- 1 is proved by the prosecution and as discussed above also linked with the commission of the above.
138. Ld. Defence counsel has taken the plea that it was not the accused who inflicted injuries to Umesh but 4-5 persons assaulted Umesh resulting into his death as deposed by State Vs. Lalit @ Lucky SC No.715/17 :: 72 ::
DW1. I do not find any merit in this contention as according to DW1 those 4-5 persons were giving kicks and fist blows to the deceased. There was no such injuries found on the dead body inflicted by kicks and fist blows. In fact only single injury was found on the dead body i.e. stab wound on the left side of the chest. This fact itself shows that DW1 is deposing falsely. On the other hand the testimony of PW1 and PW19 gets corroboration from the postmortem report Ex.PW12/A. The witness DW1 also stated that he did not notice any blood on the clothes or body of deceased, whereas the photographs clearly show that there was lot of blood on the clothes of deceased. This fact also falsifies the testimony of DW1.
139. Ld. Defence counsel has taken a plea that there is delay in sending the exhibits to the FSL and therefore, the tampering cannot be ruled out. I found that when the case property was sent to the FSL and during transit the witnesses stated that the seals were intact and the case property was not tampered with. The FSL Expert also stated that the seals were intact and tallied with the seal impression. In fact the clothes and the blood sample of the deceased were sealed with the seal of the hospital, whereas the knife was sealed with the seal of IO. There is no evidence on record that IO had any access to the seal of the hospital. There is no such State Vs. Lalit @ Lucky SC No.715/17 :: 73 ::
cross-examination to PW12. Under the circumstances, through there is delay in sending the exhibits to the FSL, but I do not find anything on record that there is tampering of the case property in this case. Hence, I do not agree with Ld. Defence counsel on this issue.
140. Keeping in view the above discussion and testimony of PW1 and PW19 finding corroboration from each other and also the scientific evidence as well as the CDRs I found that it was the accused, who inflicted injuries on the chest of Umesh with the knife Ex.PW8/Article-1 resulting into his death.
141. Defence counsel has contended that as it was a single blow and there was no such intention to cause death, therefore, the offence u/s 302 IPC is not made out and only section 304-II IPC is attracted. In my opinion there is no such law that in case of single blow or injury the accused cannot be convicted u/s 302 IPC. In fact in the judgment relied upon by defence counsel cited as Gurmukh Singh Vs. State of Haryana (Supra), wherein it was held:
"23. Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused cannot be convicted under section 302 Indian Penal Code. In cases of single injury, the facts and circumstances of each case has to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under section 302 State Vs. Lalit @ Lucky SC No.715/17 :: 74 ::
Indian Penal Code or under section 304 Part II Indian Penal Code.
142. Keeping in view this judgment it is clear that a person can be held guilty u/s 302 IPC even in case of single blow. Keeping in view the facts and circumstances of the case particularly that accused was agitated / infuriated because Umesh has asked him to drive carefully. He has already extended threat to kill him. He was waiting for the deceased along with a knife. He gave the blow with the knife on the left side of the chest i.e. the vital part. The blow of the knife was so forceful that it has cut the right ventricle of the heart of deceased and also cut the anterior and posterior pericardium. All the facts clearly show that accused was not only having the intention but also the knowledge and that is why he gave the blow with knife Ex.PW1/Article-1 on the left side of the chest and also with force resulting into death. Keeping in view the facts and circumstances of the present case, in my opinion it is a case of murder. The onus which was on the prosecution has been discharged. Accused is accordingly held guilty and convicted u/s 302 IPC.
Let convict be heard on quantum of sentence on 12.10.2018. Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL Announced in the open court BANSAL Date: 2018.10.10 15:20:17 +0530 today on 10.10.2018 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
State Vs. Lalit @ Lucky SC No.715/17 :: 75 ::