Indian Kanoon - Search engine for Indian Law

Delhi District Court

State vs . Rakesh @ Toni on 27 April, 2013

      IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION 
       JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 29/2013
Unique Case ID No. 02404R0052782011

State                                 Vs.               Rakesh @ Toni 
                                                        S/o Billu Singh 
                                                        R/o G­130, Sultan Puri, 
                                                        Delhi
                                                        (Convicted)

FIR No.                               416/2010
Under Section:                        302 Indian Penal Code 
Police Station:                       Sultan Puri

Date of committal to session court:                           4.2.2011

Date on which judgment was reserved:                          1.4.2013

Date on which Judgment announced:                             15.4.2013


JUDGMENT:

(1) As per allegations on 27.11.2010 at about 6:45 PM at Shani Bazar Road, near Nagar Nigam Prathmik Girls School, G­Block, Sultan Puri the accused Rakesh @ Toni committed the murder of Suraj S/o Raju by causing injuries to him on his chest with the help of a dagger which dagger was recovered from his possession on 28.11.2010.

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 1 CASE OF THE PROSECUTION / BRIEF FACTS:

(2) The case of the prosecution is that on 27.11.2010 at about 7:10 PM an information was received at Police Station Sultan Puri regarding stabbing of one boy at Shani Bazar Road, Near Primary School, Sultan Puri. Pursuant to the same SI Babu Ram reached the spot where he found Ct. Vijender and in the meanwhile Inspector Balbir Singh along with Ct. Munavar Khan also reached the spot and on inquiry they came to know that the injured had been removed to SGM Hospital. The local police thereafter reached SGM Hospital where they obtained the MLC of the injured Suraj S/o Raju who was declared brought dead by the doctors. The eye witnesses Om Prakash and Rajesh met the police in the hospital. They both informed that the deceased Suraj was their nephew and on 27.11.2010 at about 6:45 PM they were smoking biri near the public toilet when one Rakesh @ Toni reached there and asked Suraj for a cigarette on which Suraj told them that he was not having any cigarette. The eye witnesses also informed the police that on this Rakesh @ Toni become aggressive and exhorted that he would count upto three and he Suraj failed to provide a cigarette to him, he would finish him and thereafter he started counting upto three and after counting upto three he took out a knife from the right side back of his pant and attacked with the same on the chest of Suraj. They further told the police that Om Prakash took a brick from St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 2 there and threw upon Rakesh @ Toni on which he ran away from there.

(3) On the basis of the statement of Om Prakash the present FIR was got registered. Thereafter various exhibits were lifted from the spot. On the same night during investigations on the basis of a secret information the accused Rakesh @ Toni was apprehended from the park of 3­G Block, near Pethawali Gali, Sultanpuri in the presence of the eye witness Om Prakash. From the personal search of the accused Rakesh @ Toni one knife was recovered which was seized and his clothes which were having blood stains were also seized. After completion of investigations the charge sheet was filed against the accused.

CHARGE:

(4) Charge under Section 302 Indian Penal Code and Section 25/27 of Arms Act was settled against the accused Rakesh @ Toni to which he pleaded not guilty and claimed trial.

EVIDENCE:

(5) In order to prove its case the prosecution has examined as many as 18 witnesses as under:

Public witnesses:

(6) PW1 Sh. Ramesh Kumar is the maternal uncle (Mama) of the deceased who has deposed that on 28.11.10 he went to SGM St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 3 hospital mortuary where he identified the dead body of his nephew (bhanja) Suraj lying there vide statement Ex.PW1/A and after the postmortem, the dead body was handed over to them copy of which receipt is Ex.PW1/B. He has not been cross examined by Ld. Defence counsel despite opportunity given and hence his testimony has gone uncontroverted.

(7) PW2 Rajesh Kumar a rickshaw puller by profession is also the maternal uncle (Mama) of the deceased Suraj and is an eye witness to the incident. He has deposed that on 27.11.2010 at about 6:25 PM, he along with his cousin brother Om Prakash @ Pintu (son of his Mausi) and his bhanja Suraj (deceased) had gone to Shani Bazar Road Sultan Puri from where his cousin brother Om Prakash purchased an All­Out liquid bottle and Suraj purchased one old sweater of black colour which Suraj had worn. According to the witness, thereafter they started walking towards G­Block and at about 6:45 PM they reached near Government School in G­Block and sat near public toilet and started smoking biri. He has testified that in the meantime accused Rakesh @ Toni S/o Billu R/o G­Block, Sultan Puri whom the witness has identified in the court and was earlier known to them prior to the incident having seen him roaming in the area, reached there. According to the witness, accused asked from Suraj in his presence by exhorting "chal be cigarette pila" on which Suraj told that he was not having cigarette and was having only biri. He has testified that the accused St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 4 Rakesh @ Toni become aggressive (tav me aakar bola ki bahanchod tu janta nahi hai ki mai kaun hoon) and also exhorted that he would count up to three and if he (Suraj) failed to provide cigarette to him, he (accused) would finish Suraj (Abhi kaam tamam kar doonga). The witness has also deposed that thereafter the accused started counting up to three and after counting up to three, accused Rakesh @ Toni took out a knife from the right side back pocket of his wearing pant and attacked with the same on the chest of Suraj in his presence.

According to him, Om Prakash took out a brick from there and threw the same upon the accused Rakesh @ Toni after which Rakesh @ Toni ran away from the spot and blood started oozing out from the chest injury of Suraj. He has further deposed that someone informed the PCR at 100 number on which the police reached the spot and removed Suraj to SGM Hospital. The witness has also deposed that he along with his cousin brother Om Prakash reached the hospital where doctor declared his nephew Suraj as brought dead. According to him, Inspector Balbir Singh along with his staff reached the hospital and recorded the statement of Om Prakash after which they along with the Investigating Officer reached at the spot and he left the spot for his house leaving behind his cousin brother Om Prakash and police. (8) He has correctly identified the accused Rakesh @ Toni in the Court and also identified the case property i.e. the pant which is Ex.P1; shirt Ex.P2; sweater Ex.P3; baniyan Ex.P4, underwear Ex.P5 St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 5 and the weapon of offence i.e. knife which is Ex.P6 (It has been observed by the Court that the knife is a kind of open dagger having blade of approximately 21 cm which may be of the breadth of 4 cm in the center having a sharp pointed tip towards the other end of the knife. (9) In his cross­examination the witness has deposed that the cycle rickshaw plied by him is on hire basis and the owner of the said rickshaw is Naseem. According to him, he used to pick­up the rickshaw from 80 yards road, Sultan Puri at about 8/9 AM and the area they travel their in rickshaw depends upon the passengers and their destination but they move back in their area if they have no passengers. He has also deposed that they all rickshaw pullers gave 30 rupees per day as rent. Witness has further deposed that the timings for giving back the rickshaw is 9:00 PM and they park the same at that time. According to him, it was Saturday on the day when the incident took place and he knew the accused by face prior to the incident while plying his rickshaw in the area but did not know his name or other particulars at the time of incident. He is not aware if the deceased Suraj and accused had friendly relations nor he is aware if the accused was addicted to smoking or liquor. Witness has also deposed that Om Prakash used to ply rickshaw of one Chand who use to park his rickshaw at Shani Bazaar Road near market which Shani bazaar is within the diameter of one and a half km. The witness has testified that the distance between the spot and the place of parking of his rickshaw St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 6 was about ten­fifteen minutes by walk and the distance between the spot and place of parking of rickshaw of Om Prakash was hardly of five minutes walk. According to him the deceased Suraj was also a rickshaw puller and working with the said Naseem and on the day of incident, he did not ply his rickshaw. He has further testified that he is not confirmed if Om Prakash had plied his rickshaw or not. He has stated that in the afternoon, he reached the house of Suraj from the house of his brother which is situated at B block, Sultan Puri. Witness has admitted that a big crowd was present near the spot on account of Shani bazaar. Witness has further deposed that there were so many other rickshaw pullers who were known to him for plying their rickshaw at the time of incident and the width of the road of Shani Bazaar is about 50­60 feet. According to him the Shani Bazaar was about 70­80 meter away from the place of incident and due to Shani Bazaar no vehicles were coming and going from that road. He has explained that on the one side of their location at the spot there was a Shani Bazaar and on the other side of the road there was a daily vegetable market and hence, the traffic was not allowed to come on that road. Witness has further deposed that locality people were moving in front of the place where they were sitting and has explained that they were sitting in front of government school and toilet was on the opposite road. Witness has further deposed that accused Rakesh @ Toni was coming from the opposite side i.e. from the side of public St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 7 toilet and he was sitting in the corner, deceased Suraj was next to him and his cousin Om Parkash @ Titu was on the next corner. According to him the accused asked "tum mujhe jaante ho, ek, do, teen tak ginunga, jao yahan se, nahin to tumhe batata hun" and the accused abused them and even did not complete his counting till three when he gave a knife blow on Suraj. Witness has further deposed that they did not oppose the conduct of accused. He has stated that the entire incident took place within five minutes. The witness has also deposed that he used to operate a mobile phone which was of his brother but he did not keep the same with him and it remained at home. He has testified that public persons gathered after the incident but he is not aware who called the police. Witness has denied the suggestion that he was not present or that Om Prakash and Suraj were not present with him. He has also denied the suggestion that he was present at the house of his brother or that nothing had happened at Shani Bazaar Road in his presence. The witness has further denied the suggestion that no incident had taken place at Shani Bazaar and that is why no public witness was found or that he was not present at the spot that is why he did not accompany Suraj to the hospital. He has denied the suggestion that he and Om Prakash could not tell name of any person that is why his statement was not recorded on 27.11.10 and police officer took his signatures on blank papers.

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 8 (10) PW3 Brijesh Sangwan has deposed that he is working as a Reporter with News 24TV channel and on 27.11.2010 he was playing Badminton with the boys in his gali when at about 6:45­7:00 PM he heard crises from Shauchalaya side. According to him he reached there and found one boy lying in an injured condition who was having stab injuries and he died at the spot. Witness has further deposed that the name of deceased was revealed at the spot as Suraj and one associate of Suraj (since deceased) was also present there. He has proved that he informed the PCR at 100 number as well as also informed at 102 number for Ambulance service. Witness has further deposed that PCR van reached at the spot and deceased was removed to hospital by the PCR officials and investigating officer recorded his statement in this case on 09.02.2011.

(11) In his cross examination by Ld. Defence counsel, witness has deposed that the relative of deceased Suraj who was present at the spot had not disclosed his name in his presence, however, that relative had told the name of deceased as Suraj and also told that deceased was his bhanja (nephew). According to him PCR officials reached at the spot after about 15/20 minutes of giving information by him. Witness has denied the suggestion that he had not visited the spot or that he had made a phone call.

(12) PW4 Om Prakash has deposed that he is residing at H. No.66, Gali no.2, Rattan Vihar, Delhi with his elder brother Ramesh as St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 9 tenant. According to him, he is a rickshaw puller and generally park his rickshaw in G Block, Shani Bazaar near police booth. According to him on 27.11.10, at about 6.15 ­ 6.30 p.m. he along with his cousin brother Rajesh (son of his mausi) and his nephew Suraj left the house for purchasing an 'All Out' bottle for mosquito killing and for purchasing a sweater for his nephew Suraj. Witness has further deposed that they reached at Shani Bazaar Chowk, Sultan Puri from where he purchased the 'All Out' bottle and Suraj purchased an old black sweater of full sleeves and wore same there only after which they started going towards home. He has testified that on the way at G Block, opposite Government school near Public toilets, they started smoking biri and at about 6.45 p.m. when they were smoking biri, accused Rakesh @ Toni (whom the witness has correctly identified in the Court) who is son of Billu and known to them being living in the same locality, came. According to the witness the accused had a habit of snatching money from poor persons and Immediately after coming he asked his nephew Suraj "chal be cigarette pila" (give a cigarette to him for smoking) on which his nephew replied him that he did not have a Cigarette and he only had biri with him. Witness has further deposed that on hearing this, accused Rakesh @ Toni abused his nephew in filthy language and said that he would count upto three and if by that time, Cigarette was not arranged, he would kill Suraj and thereafter, the accused counted upto three and thereafter, took out a big St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 10 knife from the right side of his pant and stabbed on the left side chest of Suraj. He has testified that on seeing this, he took out a half brick lying there and threw it on the accused due to which, he fled away from the spot and somebody informed the police at 100 number. According to him the police reached at the spot and took his nephew to SGM Hospital and he along with cousin Rajesh also reached at the hospital where doctor declared his said nephew Suraj as brought dead. He has proved that police recorded his statement in the hospital which is Ex.PW4/A. According to him from the hospital, he along with Rajesh came back at the spot with the police where police prepared site plan at his instance and police lifted blood, earth control, chappal and brick etc. from the spot. The witness has also deposed that the postmortem on the dead body of his nephew was conducted on 28.11.10 and his identification statement was recorded by the police which is Ex.PW4/B and after postmortem the dead body was received by him and his brother Ramesh vide receipt Ex.PW1/B. (13) The witness has further deposed that on 28.11.10, accused Rakesh @ Toni was arrested from pethewali gali near G Block Park, Sultan Puri in the night at about 12­/1 AM on the basis of a secret information and he had also put his thumb impression at point A on his arrest memo which is Ex.PW4/C. According to him the accused on seeing the police tried to run away but was apprehended by the police after jumping the wall of the park and his personal search was St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 11 conducted vide Ex.PW4/D. Witness has further deposed that a knife was recovered from the pocket of his pant and police made some drawing of the said knife on a paper after which it was kept in a white coloured cloth parcel and put some plastic substance on it after melting the same ('chaku ki drawing banayi gayi aur plastic jaisi cheeze ko pighlakar kapde ke pullande par mohar lagayi gayi'). Witness has proved that thereafter, the said knife was taken into possession by the police vide memo Ex.PW4/E and one mobile phone and some cash amount was also recovered from the search of the accused. He has testified that the police took into possession the wearing clothes of the accused and asked him to change the clothes after which the wearing clothes of the accused were taken into possession by the police vide memo Ex.PW4/F. He has explained that the shirt of the accused was of pink colour and sweater was of black colour and pant was of black/ gray colour.

(14) He has correctly identified the accused Rakesh @ Toni in the Court and also identified the case property i.e. one pant, one shirt, one sweater full sleeves of black colour, one baniyan, one underwear belonging to the deceased Suraj which are Ex.P­1 to Ex.P­5; one knife which is Ex.P6; one pant of gray colour, one shirt of pink colour and one full sleeves black colour sweater as the same St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 12 clothes which were worn by the accused at the time of his arrest, the pant is Ex.P7, shirt is Ex.P8 and sweater is Ex.P9. (15) In his cross examination by Ld. defence counsel, witness has deposed that he was plying rickshaw of Naseem during the time when the incident took place and they used to pick rickshaw from the parking at about 7­8:00 AM and used to give back at about 5­6 PM. According to him on the day of incident, he had plied the rickshaw in the area and the last passenger traveled in his rickshaw for Mangal Bazaar Bank at about 3:00 PM. He has testified that the rent of rickshaw which was to be paid daily to Naseem was Rs.30/­ per day. Witness has further deposed that they never used to sign any paper for giving and taking the said amount daily and parked the rickshaw at about 3.30 PM in the parking area and he went to the house of his brother Ramesh at Rattan Vihar which is a five minute distance. According to him thereafter, he along with Suraj and his cousin Rajesh had left for Shani Bazaar from house of his brother Ramesh. He has also deposed that the width of the road where they were sitting was about 60 ft. and both sides of the road were having market. Witness has further deposed that they were sitting towards the side of the gate of school and on the opposite road the public toilet was situated. The witness has further deposed that Suraj was sitting in middle whereas himself and Rajesh were sitting on the corners. Witness has also deposed that the accused came from G­Block side road i.e. from the St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 13 side of public toilet and they did not oppose to the abuse given by the accused to them as they were not in habits of quarreling with anyone. He has testified that he knew the accused prior to the incident being the resident of the area but he had no friendship with accused. According to the witness he had no personal dispute with the accused and he is not aware if Suraj had any friendship or dispute with accused or not prior to the incident and he had never seen Suraj standing with accused prior to the incident. He has further deposed that Rajesh also used to ply rickshaw of same contractor and Suraj used to change his work sometimes he used to ply rickshaw, sometimes as white­washer or sometimes as baildar. According to the witness, two­three days prior to the incident, Suraj had started doing the work of white washer and it hardly took two­three minutes in the entire incident. The witness has also deposed that neither he nor Rajesh or Suraj were having mobile phones. He has explained that his brother Ramesh had a mobile phone at his home. He is not aware as to who had called the police at 100 number as they were busy with the deceased. According to the witness, he knew the other rickshaw pullers of the area but on the date of incident, since it was Shani Bazaar rickshaws were not allowed on that road. Witness has further deposed that he knew the people of the nearby area of incident and raised an alarm and even threw a half brick which hit on the left shoulder of the accused. He has also deposed that since the accused was having knife in his hand, they did not chase him. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 14 He has explained that other boys were playing badminton near the spot but out of fear even they did not come forward at that time and public had gathered there only after police had reached at the spot. According to him thereafter, they went to the hospital with the injured in the same police vehicle which was used for shifting the deceased to the hospital and his brother Ramesh was informed by some children about the incident at home. Witness has testified that his first statement was recorded by police in SGM Hospital and thereafter, at the spot when the site plan was also prepared at about 9.30 PM at his instance. Witness has denied the suggestion that neither he nor his cousin Rajesh were present at the spot or that he did not accompany his nephew in police vehicle to the hospital that is why his name is not mentioned in MLC or that the site plan has not been prepared at his instance. Witness has further deposed that on the next day i.e. on 28.11.10, at about 12:00­1:00 AM when he was sitting with police team at the place of incident, police officers received a call about the whereabouts of accused at G­3 Pethewali gali and he accompanied police officers in raiding party. According to the witness police officers did not give him any notice to him to join investigation or raid. He has testified that he gave his thumb impression on six to seven papers asked by police to him and same were written but he could not read the same as he is illiterate. Witness has denied the suggestion that accused was not apprehended by police in front of him or that the knife was recovered St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 15 in his presence. Witness has also denied the suggestion that he is not aware anything of the accused and even police could not find any accused till next date and that is why the name of accused has been falsely implicated.

(16) PW6 Sh. Prashant has deposed that he is working with his brother in law (jija) in Bharat Photo Studio, Shani Bazar Road, Sultan Puri, Delhi. According to him on 27.11.0, at the instance of the police, he reached at G Block, near Primary School, Shani Bazar Road where he took the photographs of the scene of incident from different angles from his digital camera. Witness has proved the said photographs which are Ex.PW6/A1 to Ex.PW6/A5 which were handed over to the investigating officer. This witness was not cross examined by Ld. Defence counsel despite opportunity given and hence his testimony has gone uncontroverted.

Medical witness:

(17) PW5 Dr. Manoj Dhingra has deposed that on 28.11.2010 at about 1:00 PM he was the member of the Board for conducting Autopsy along with Dr. J.V. Kiran on the dead body of Suraj S/o Raju.

According to him the body was sent by Inspr. Balbir Singh, Police Station Sultan Puri with alleged history of being stabbed on 27.11.2010 at about 6.45 PM at Shani Bazar Road, Sultan Puri. Witness has further deposed that all the external and internal injuries are mentioned St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 16 in the detailed Postmortem Report which is Ex.PW5/A. He has proved having opined that the cause of death was hemorrhage and shock consequent to penetrating injury to the chest via injury no.1 caused by single edged sharp stabbing weapon, all injuries were antemortem fresh in duration and time since death was about 18 hours. According to him, total number of inquest papers were 12 and the articles sealed and handed over to Investigating Officer were blood on gauze and clothes which are Ex.P1 to Ex.P5.

(18) Witness has further deposed that on 8.12.2010, an application was received from Investigating Officer with a sealed parcel sealed with the seal of BS. According to him on opening the packet, it was containing a single edged knife outline of which has been shown on the right side, light brown stains were present on the knife on both the sides. He has proved that after examination of Postmortem report, clothes and the knife it was opined that injuries mentioned in the Postmortem report were possible by the said knife. He has testified that the sketch of the knife was prepared before it was resealed with the seal of SGMH and handed over to the Investigating Officer and his subsequent opinion and the sketch of the knife are collectively Ex.PW5/B. He has proved the various inquest papers which are Ex.PW5/C1 to C10, Ex.PW1/A and Ex.PW4/B. He has correctly identified the knife examined by him which knife is St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 17 Ex.P6. This witness was not cross examined by Ld. Defence counsel despite opportunity given and his testimony has gone uncontroverted. (19) PW7 Dr. M. Das has deposed that on 27.11.2010 he was working as CMO at SGM Hospital, Mangol Puri and on that day at about 7.40 PM he examined one patient Suraj S/o Raju age 32 years, male who was brought by Ct. Manoj of Police station Sultan Puri and after examining him, he was declared brought dead by him and the body was sent to mortuary for postmortem. He has proved the MLC prepared by him which is Ex.PW7/A. He was not examined by Ld. Defence counsel despite opportunity given and hence his testimony has gone uncontroverted.

(20) PW8 Dr. J.V. Kiran has deposed that on 28.11.2010 at about 1:00 PM he was the Member of the Board for conducting Autopsy along with Dr. Manoj Dhingra on the dead body of Suraj S/o Raju. According to him the body was sent by Inspr. Balbir Singh, Police Station Sultan Puri with alleged history of being stabbed on 27.11.2010 at about 6.45 PM at Shani Bazar Road, Sultan Puri. Witness has further deposed that all the external and internal injuries are mentioned in the Postmortem Report which is Ex.PW5/A. He has proved having opined that the cause of death was hemorrhage and shock consequent to penetrating injury to the chest via injury no.1 caused by single edged sharp stabbing weapon, all injuries were St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 18 antemortem fresh in duration and time since death was about 18 hours. According to him, total number of inquest papers were 12 and the articles sealed and handed over to Investigating Officer were blood on gauze and clothes which are Ex.P1 to Ex.P5.

(21) Witness has further deposed that on 8.12.2010, an application from Investigating Officer was received with a sealed parcel sealed with the seal of BS. He has proved that on opening the packet, it was found to contain a single edged knife outline of which has been shown on the right side and light brown stains were present on the knife on both the sides. Witness has further deposed that after examination of PM report, clothes and the knife it was opined that injuries mentioned in the PM report were possible by the said knife and the sketch of the knife was prepared before it was resealed with the seal of SGMH and handed over to the Investigating Officer. Witness has proved the subsequent opinion and the sketch of the knife which are collectively Ex.PW5/B. He has also proved the inquest papers which are Ex.PW5/C1 to C10, Ex.PW1/A and Ex.PW4/B. He has identified the knife which is Ex.P6 as the same which was examined by him on production by the Investigating Officer before him. This witness was not cross examined by Ld. Defence counsel despite opportunity given and hence his testimony has gone uncontroverted. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 19 Police / Official witnesses:

(22) PW9 Ct. Sombeer has deposed that on 29.12.10, he was posted at Police Station Sultan Puri and on that day he took 8 sealed pullanda and one sample sealed with the seal of SGM Hospital mortuary from MHC(M) vide RC no. 163/21/10 and deposited the same with FSL Rohini, Delhi as per the instructions of the Investigating Officer. According to him after depositing the same, copy of RC and Acknowledgment receipt was handed over to the MHC(M) and till the samples remained in his custody, same were not tampered with. Witness was not cross examined by Ld. Defence counsel despite opportunity given and hence his testimony has gone uncontroverted.

(23) PW10 HC Govind has deposed that on 28.11.10 he was posted as MHC(M) at Police Station Sultan Puri and on that day, Inspector Balbir Singh had deposited 8 sealed pullandas out of which six pullandas were sealed with the seal of BS and two pullandas were sealed with the seal of SGM Mortuary, Mangol Puri. According to him besides these pullandas, personal search of accused Rakesh @ Toni was also deposited by the said Inspector and the details of all these pullandas were mentioned by him in register no.19 at sl. no.12684. He has proved the copy of relevant entry in Register No.19 which is Ex.PW10/A. Witness has also deposed that on 08.12.10 two pullandas containing knife and blood stained clothes of deceased which were St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 20 sealed with the seal of BS were sent to Mortuary SGM Hospital for seeking opinion by the Investigating Officer from the Autopsy Surgeon on which he made his endorsement to that effect at point X and Y on page 3 of Ex.PW10/A. He has testified that on 29.12.10, all the 8 pullandas out of which three pullandas were sealed with the seal of hospital and five were sealed with the seal of BS were sent to FSL through Ct. Somvir vide RC No.163/21/10 and he made his endorsement to that effect at point A on Ex.PW10/A. He has proved the copy of RC Book which is Ex.PW10/B and the receipt copy of FSL is Ex.PW10/C. The witness has testified that on 16.06.11, the 8 sealed pullandas duly sealed with the seal of FSL with result was received by him through Ct. Satish and the endorsement to that effect was made by him at point B on Ex.PW10/A. According to him on 23.06.11, he handed over the result to SI Praveen Kumar vide his endorsement at point C on Ex.PW10/A. This witness was not cross examined by Ld. Defence counsel, despite opportunity given and hence his testimony has gone uncontroverted.

(24) PW11 Ct. Vijender Kumar has deposed that on 27.11.10, he was posted at Police station Sultan Puri and on that day, he was present at his beat at Krishan Vihar when he received a call from duty officer to reach at Shani Bazaar road where one person had been stabbed. According to him on this information, he reached the said St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 21 spot where he met SI Babu Ram and he came to know that the injured had been removed by PCR van. Witness has further deposed that blood was scattered at the spot and SI Babu Ram went to SGM Hospital leaving him at the spot along with Ct. Munawar Khan who also came at the spot with Inspector Balbir. Witness has further deposed that at about 9.45 PM SI Babu Ram along with Inspector Balbir and one public person Om Prakash came back at the spot and crime team was also called who inspected the spot and took photographs from different angles. He has also deposed that their statement was recorded and in the meanwhile, Ct. Munawar also came back at the spot with the copy of FIR and original rukka and handed over to the Investigating Officer Inspector Balbir Singh who lifted the blood in gauze piece and kept the same in a plastic container sealed with the seal of BS and seized vide seizure memo Ex.PW11/A. He has proved that a half brick on which word 'KS' and in between these words, mark of 'Swastik' was engraved having blood stains, was kept in a pullanda and sealed with the seal of BS and seized vide seizure memo Ex.PW11/B. According to him, the earth control and blood stained earth control were kept in separate plastic containers and sealed with the seal of BS and seized vide seizure memo Ex.PW11/C. Witness has further deposed that the blood stained plastic chappal which was lying on the road opposite public toilet were kept in a polythene and thereafter sealed in a pullanda with the seal of BS and seized vide seizure memo St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 22 Ex.PW11/C. He has testified that when they were present at the spot, a secret information was received by the Investigating Officer that the person i.e. Rakesh @ Toni who had committed the said offence was hiding himself in a park of G3 Block and was trying to run. According to the witness, on this information, immediately a raiding party was organized by the Investigating Officer including him, SI Babu Ram, Ct. Munawar and Om Prakash after which they reached near Pethawali gali in the park of G3 where Om Prakash pointed towards the accused who was apprehended by them. Witness has further deposed that during the casual search of accused a chura/ chaku was recovered from the back side of his pant and total length of the chura was 34 c.m. blade was 21 cm, its handle was 13 cm and the width of the blade was 4 cm and the sketch of the said knife was prepared which is Ex.PW11/D and word 'LORD' was engraved on the blade of the knife besides other word which he does not recollect. According to the witness thereafter the said knife was kept in a pullanda and sealed with the seal of BS and seized vide seizure memo Ex.PW4/E. He has testified that the accused was wearing blood stained clothes and the Investigating Officer asked someone to bring the other clothes of the accused from his house which was situated nearby the said place. Witness has also deposed that accused changed his clothes and the clothes which were worn by the accused i.e. one pink colour shirt, light grey colour pant, black sweater were taken into possession and were kept in a pullanda and St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 23 sealed with the seal of BS and seized vide seizure memo Ex.PW4/F. According to him this pullanda was given exhibit number 6 and the accused was arrested vide arrest memo Ex.PW4/C; his personal search was conducted vide memo Ex.PW4/D and he made his disclosure statement which is Ex.PW11/E after which the accused pointed out the place of incident vide pointing out memo Ex.PW11/F. (25) The witness has correctly identified the accused in the Court and also the case property i.e. the knife which is Ex.P6; one pant of gray colour, one shirt of pink colour and one full sleeves black colour sweater which were worn by the accused at the time of his arrest which pant is Ex.P7; shirt is Ex.P8; sweater which is Ex.P9; a pair of black colour chappal as the same which were recovered from the spot which chappals are collectively Ex.P10 and one half brick having word KS and mark of 'Swastik' engraved on it which is Ex.P11. (26) In his cross examination by Ld. Defence counsel, witness has deposed that he reached the spot at about 7.20 PM and remained there till about 12.30 AM or 12.45 AM which includes timing of arrest of accused also. According to the witness the Investigating Officer made inquiries from the public persons at the spot, however, the maternal uncle of the deceased Om Prakash was also present who came along with the Investigating Officer at the spot. He has testified that on the same day the Investigating Officer received information of secret St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 24 informer about the whereabouts of accused and marched towards the place where the accused was told to be present and accused was apprehended. Witness has denied the suggestion that he did not join the investigation or that he signed the memos while sitting in the Police station at the instance of Investigating Officer or that nothing was recovered from the possession of accused.

(27) PW12 Ct. Manoj Kumar has deposed that on 27.11.2010 he was posted at Police station Sultan Puri and on that day, he was on patrolling duty in the area of his beat when he received a phone call from the duty officer regarding the incident of stabbing at Shani Bazaar road near Primary school. According to the witness he reached at the spot at G block, Primary School at Shani Bazaar road, Sultan Puri where one person by the name of Suraj was found lying in the injured condition and blood was oozing from his wounds. Witness has further deposed that in the meanwhile, PCR van also reached and removed the injured in the said PCR van to SGM Hospital. According to him one Om Prakash and other person whose name he does not recollect also accompanied them and got the injured admitted in the hospital vide MLC. Witness has also deposed that in the meanwhile, SI Babu Ram along with Inspector Balbir and Ct. Munawar Khan reached the hospital and the injured was declared brought dead by the doctor. According to him, Inspector Balbir Singh recorded the statement of Om Prakash maternal uncle of the deceased on the basis of which, he St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 25 prepared rukka and handed over the same to Ct. Munawar Khan for getting the case registered. He has testified that thereafter the dead body was shifted to the mortuary and he along with said Inspector SI Babu Ram, Om Prakash and one Rajesh went to the spot where crime team was called who inspected the spot and the scene of occurrence was also got photographed from different angles and his statement was recorded by the Investigating Officer. He has proved that on 28.11.10 he joined the investigation with the Investigating Officer during the postmortem conducted on the dead body of the deceased Suraj and Investigating Officer prepared the inquest papers and handed over it to the Autopsy Surgeon. The witness has also deposed that after the postmortem, the doctor had handed over to him two sealed pullandas and one sample seal of SGMH mortuary Mangol Puri which were taken into possession by the Investigating Officer vide memo Ex.PW12/A. This witness was not cross examined by Ld. Defence counsel despite opportunity given and hence his testimony has gone uncontroverted.

(28) PW13 Ct. Munawar Khan has deposed that on 27.11.10, he was posted at Police Station Sultan Puri as Constable and on that day, on receipt of DD No.37­A, he along with Inspector Balbir Singh, reached the spot at Shani­Bazaar road near Municipal Corporation School, G Block, Sultan Puri where SI Babu Ram and Ct. Bijender were already found present. According to him blood in huge quantity St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 26 was found lying at the spot and on inquiry, it was revealed that the PCR van had already removed the injured to SGM Hospital and no eye witness was found at the spot. Witness has further deposed that Ct. Vijender was left at the spot to guard the same and he along with said Inspector and SI Babu Ram went to the said hospital where Investigating Officer obtained the MLC no. 17141/10 of one Suraj who was declared as 'Brought Dead'. He has also deposed that one Om Prakash, maternal uncle of the deceased met them in the hospital along with Rajesh Kumar. According to him statement of Om Prakash was recorded by the Investigating Officer who prepared the rukka and handed it over to him for registration of FIR at police station after which he went to the Police station and got the case registered and came back at the spot along with copy of FIR and original rukka which he handed over to Inspector Balbir Singh. Witness has further deposed that Investigating Officer prepared the site plan at the instance of Om Prakash. The witness has corroborated the testimony of Ct. Virender (PW11) in toto and has proved the various proceedings conducted thereafter i.e. seizure of blood vide memo Ex.PW11/A; seizure of half brick vide memo Ex.PW11/B; seizure of earth control and blood stained earth control from the spot vide memo Ex.PW11/C; seizure of one pair of blood stained plastic chappal vide memo Ex.PW11/D; sketch of the knife recovered from the accused which is Ex.PW11/E; St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 27 seizure of knife vide memo Ex.PW4/E; pointing out memo Ex.PW11/F; seizure of clothes of the accused vide memo Ex.PW4/F; arrest memo of accused vide Ex.PW4/C; his personal search memo of the accused which is Ex.PW4/D and disclosure statement of accused which is Ex.PW11/E. (29) The witness has correctly identified the accused in the Court and also the case property i.e. the knife which is Ex.P6; one pant of gray colour, one shirt of pink colour and one full sleeves black colour sweater which were worn by the accused at the time of his arrest which pant is Ex.P7; shirt is Ex.P8; sweater which is Ex.P9; a pair of black colour chappal as the same which were recovered from the spot which chappals are collectively Ex.P10 and one half brick having word KS and mark of 'Swastik' engraved on it which is Ex.P11. (30) In his cross examination by Ld. Defence counsel, the witness has deposed that they got information at about 7.05 PM and they reached the spot at about 7.25 PM. According to him since it was Saturday the Shani Bazaar was open at that time which was held at the pedestrians of both the sides of the road upto a distance of more than 300 meters and the same is a crowded bazaar and there is a police booth in the said bazaar. He has testified that the distance between place of incident and the said booth is about 200/250 meter and on one side of the said bazaar, barriers are put by the police generally and the St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 28 beat officials keep on patrolling in the said bazaar. Witness has further deposed that when he reached there, public persons were already present but he is not aware if any guard has been deputed in the said government school but at that time, no such guard was present in the school. He has admitted that there is a public toilet in front of the said school but has denied denied the suggestion that the police post is situated at a distance of 10 paces from the place of incident. The witness has further deposed that Investigating Officer made inquiries inside the school also but he is not aware from whom, since at that time he was standing outside. He has testified that the Investigating Officer made inquiries from public persons present at the spot when they reached there but no one claimed to be the eye witness of the incident. He has denied the suggestion that Rajesh was not present at hospital and that is why, no statement of Rajesh was recorded by the Investigating Officer. Witness has further deposed that they reached hospital at about 8.45 PM on the said day and in the same night, they reached back at the spot where Investigating Officer prepared site plan and the accused was also arrested on the same night on 28.11.2010. According to him the place of arrest of accused is a populated area and the said area falls within the jurisdiction of Police Station Sultan Puri and they were familiar with the locality of the said area. Witness has also deposed that despite efforts, no public person was ready to join the investigation and Investigating Officer did not call the Pradhan and St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 29 Politicians of the area to join the investigation, however, he asked the persons present at that time to join the proceedings who refused. Witness has denied the suggestion that no one was telling about the incident as to who had stabbed the deceased and thus, the accused against whom a case under Section 307 IPC was already pending was falsely implicated in the present case. He has also denied the suggestion that the accused was implicated at the instance of Om Prakash and Rajesh Kumar as their nephew deceased Suraj had borrowed money from the accused which was demanded by him from the deceased who had not returned the said amount. (31) PW14 HC Ram Pal Singh has deposed that on 27.11.10, he was posted at Police Station Sultan Puri and was working as Duty Officer from 4 PM to 12 midnight and at about 7.05 PM an information was received regarding stabbing at Sultan Puri Shani Bazaar Road near Primary School on which he recorded DD no.37­A copy of which is Ex.PW14/A. Witness has further deposed that at about 9.40 PM on the same night he received a rukka sent by Inspector Balbir Singh through Ct. Munawar Khan, on the basis of which he got the formal FIR recorded on the computer kept in the ordinary course of the business in the Police Station by computer operator which was according to the contents of the rukka and the same was not tempered with. He has proved the computerized copy of the FIR which is Ex.PW14/B and his endorsement on the rukka which is Ex.PW14/C St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 30 which was given Ct. Munawar Khan to be given to Inspector Balbir Singh to be taken at the spot along with the computerized print­out of the FIR.

(32) In his cross examination by Ld. Defence counsel, witness has deposed that the departure and arrival entries of the police officials posted in the Police Station and Police Booth in the area is always made in the DD register which is called B Rojnamcha which is recorded by the DD writer. According to him, there is a police booth 100/150 ft. away from the school at G block.

(33) PW15 Lady Ct. Soni Kumari has deposed that on 27.11.10, she was posted as Constable at CPCR, PHQ from 2 PM to 8 PM and on that day, at about 7.02 PM an information was received regarding stabbing of a person at Sultan Puri main Shani Bazaar Road, near Primary School. According to the witness she recorded this information and filled­up the PCR Form computerized copy of which is Ex.PW15/A. According to her, thereafter she sent the information to the necessary District Network for further action. This witness was not cross examined by the Ld. Defence counsel despite being granted an opportunity and her testimony has gone uncontroverted. (34) PW16 SI Surender Singh has deposed that on 27.11.2010 he was posted as In­charge of Crime Team, Outer District and at about 9.25 PM an information was received through PCR from Police Station Sultan Puri to reach Shani Bazar Road, near MCD Primary School, G­ St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 31 Block, Sultan Puri, Delhi. Accordingly, he along with staff reached the said spot at about 9.45 PM where Inspr. Balbir Singh and SI Babu Ram of Police station Sultan Puri met them along with staff. He has testified that he found blood lying at the said spot and it was informed that the dead body of a person was already removed prior to their reaching there and a private photographer was summoned by the said police officials to take the photographs of the spot as the still camera of the crime team was out of order. Witness has further deposed that he prepared his report and submitted the same to the said Investigating Officer which is Ex.PW16/A. (35) In his cross examination by Ld. Defence counsel, witness has deposed that he along with HC Ram Kumar, Ct. Hans Raj, Ct. Rajbir and Ct. Harish reached the spot and he left the spot at about 10.30 PM. According to him in his presence no public person pointed out the place of occurrence and in his presence no secret information was received by the Investigating Officer regarding the whereabouts of the accused. Witness has denied the suggestion that he had not visited the spot, as stated above or that he had left the spot at about 1:00 AM on 28.11.2010. Witness has further deposed that there was no public person present on the spot when he along with his team reached the spot.

(36) PW17 SI Babu Ram has deposed that on 28.11.2010, he was posted at Police station Sultanpuri and on that day, at about 7.10 St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 32 PM duty officer informed him by telephone that one boy had been stabbed at Shani Bazar Road, near Primary School, Sultanpuri, Delhi. According to him thereafter he reached there and found constable Vijender present at the spot and in the meanwhile, Inspector Balbir Singh along with constable Munavar Khan reached at the spot. He has testified that on enquiry it was revealed that the injured had been shifted to SGM Hospital, Mangolpuri, Delhi. Witness has further deposed that pool of blood was found lying at the spot and no eye witness was found present at the spot, therefore leaving constable Vijender to guard the spot, he along with Inspector Balbir Singh and Ct. Munavar Khan went to SGM Hospital where beat constable Manoj met them and they came to know vide MLC No. 17141/10 of injured Suraj that he was declared brought dead. Witness has also deposed that in the hospital, eye witnesses Om Prakash @ Titu and Rajesh met them and Inspector Balbir Singh recorded the statement of Om Prakash @ Titu on which he made his endorsement and the rukka was handed over to constable Munavar Khan for registration of FIR. According to him thereafter he along with Inspector and Constable Manoj and both the eye witness came back at the spot and Crime team also reached there as it was already summoned who inspected the spot and private photographer was called to take the photographs as the camera of the crime team was not in working order at that time. He has further deposed that Inspector lifted the exhibits i.e. blood in gauze piece, one St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 33 half brick, one pair of plastic chappal of the deceased, earth control and blood stained earth control. Witness has further deposed that all these articles were kept in separate pullands and sealed with the seal of BS and were given exhibits no. 1 to 4 were seized vide separate seizure memo on which constable Munavar Khan who had reached at the spot after registration of the case along with copy of FIR and original rukka and handed it over to the Investigating Officer, and Ct. Vijender had signed the same but he himself did not sign any seizure memo. Witness has further deposed that the said seizure memos were prepared in his handwriting and Crime Team was discharged after their statement was recorded. He has also deposed that during said investigation, an information was received that the person who had stabbed was hiding at Park of G3 Block, near Pethewali Gali, Sultanpuri, Delhi. According to him on this information, Investigating Officer asked one or two passersby who were passing through the said place to join the investigation who refused to join the same and without wasting the time, he along with Ct. Munavar, Inspector Balbir Singh, Ct. Vijender and eye witness Om Prakash @ Titu went to the said park where at the instance of Om Prakash @ Titu accused Rakesh @ Toni S/o Billu Singh was apprehended with the help of the staff who was hiding themselves in the park. Witness has further deposed that on his search, one knife was recovered from the right back side of his pant and due to the said position of the knife accused sustained some injury St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 34 on his lower hip. He has proved the sketch of the knife which is Ex.PW11/D which knife was kept in a white cloth pullanda and was sealed with the seal of BS and thereafter was seized vide seizure memo. According to him, thereafter the accused was arrested and his personal search was conducted and he made his disclosure statement and thereafter pointed out the place of incident and the clothes worn by the accused were having blood stains which were taken into possession by the Investigating Officer and same were sealed in a pullanda with the seal of BS. Witness has also deposed that the seal after use was handed over to Ct. Vijender and all the memos were signed by both the constables and eye witness Om Prakash and thereafter they left the spot and accused was got medically examined at SGM Hospital and thereafter they went back to the police station and his statement was recorded by the Investigating Officer.

(37) The witness has correctly identified the accused in the Court and also the case property i.e. the knife which is Ex.P6; one pant of gray colour, one shirt of pink colour and one full sleeves black colour sweater which were worn by the accused at the time of his arrest which pant is Ex.P7; shirt is Ex.P8; sweater which is Ex.P9; a pair of black colour chappal as the same which were recovered from the spot which chappals are collectively Ex.P10 and one half brick having word KS and mark of 'Swastik' engraved on it which is Ex.P11. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 35 (38) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot within 15 minutes of receiving the said information and found public persons gathered there but he did not meet the PCR officials in the hospital when he reached there. According to him, when they reached at the hospital Ct. Manoj met them who told them that two above said eye witnesses also came along with the injured from the spot to the hospital. He is unable to tell if any Manoj who was maternal uncle of deceased Suraj met them in the hospital or not. Witness has further deposed that the MLC of injured Suraj was already prepared when they reached at the hospital and after coming to know about the MLC they met eye witnesses within hardly one or two minutes as they were already present there. He is unable to admit or deny if any other family member of the deceased was present in the hospital or not. According to him the said two eye witnesses accompanied them to the spot in the government vehicle i.e. gypsy. Witness has further deposed that Om Prakash was present there when the said information was received whereas Rajesh had left the spot and in between around 11.50 PM to 12.00 Midnight on intervening night of 27­28.11.2010 they left the spot towards the G3 Block Park. Witness has further deposed that it took they about 57 minutes in reaching that park which park is surrounded by residential houses but he is not aware whether any Chowkidar remained present there or not and states that there are lights in the park. According to him accused was alone in the St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 36 Park and was pointed out by the eye witness at the distance of 10­15 steps and the knife was kept by the accused inside his pant of back right side. The witness has further deposed that he could not see the accused when he was pointed out by the eye witness and that is why he is unable to tell whether the accused was sitting or standing at that time. He has denied the suggestion that the knife Ex.P6 was not recovered from the possession of accused as no person can sit, walk or run with such a big knife by tucking inside back side of his pant. Witness has denied the suggestion that no information was ever received regarding the whereabouts of the accused but he was already caught up by the police at 8.00 PM because he had bad name in the society or that eye witness could not tell the name of accused or could tell his description on 27.11.2010 or thereafter. Witness has also denied the suggestion that the name of accused has been lately added by Investigating Officer.

(39) PW18 Insp. Balbir Singh is the Investigating Officer who has deposed that on 27.11.2010 he was posed at police station Sultanpuri and on that day on receipt of DD No.36A which is Ex.PW14/A regarding stabbing at Shani Bazar road, near Primary school, Sultanpuri, Delhi on which he along with Ct. Munawar Khan reached at the said spot i.e. at G­block, Shani Bazar road, near Nagar Nigam Prathmik Balika Vidyalya, Sultanpuri where SI Babu Ram and Ct. Vijender met him. According to the witness there was a lot of St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 37 blood found lying at the spot and on inquiry it was revealed that injured has been removed to SGM hospital by PCR Van. Witness has further deposed that no eye witness was found present and leaving Ct. Vijender at the spot, he along with SI Babu Ram and Ct. Munawar Khan went to the hospital where he collected the MLC of Suraj S/o Raju Ex.PW7/A on which he was declared brought dead by the doctor. According to him, in the hospital itself eye witness Om Parkash and Rajesh were found present and Ct. Manoj was also met them in the hospital. He has testified that he recorded the statement of Om Parkash which is Ex.PW4/A after which he prepared the rukka which is Ex.PW14/C and the rukka was handed over to Ct. Munawar Khan for getting the case registered in the police station and thereafter he along with SI Babu Ram, Ct. Manoj eye witness Om Prakash and Rajesh reached at the spot. According to him, Crime Team was also summoned at the spot who inspected the spot vide its report Ex.PW16/A but the photographs could not be clicked by the crime team as its camera was not in working condition and hence, the private photographer was called who took the photographs which are Ex.PW6/A1 to Ex.PW6/A5. He has also deposed that from the spot he lifted the exhibits from the spot and sealed the same in separate pullanda with the seal of BS and the exhibits were blood in gauze piece vide memo Ex.PW11/A; blood stained half brick vide memo St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 38 Ex.PW11/B; earth control and blood stained earth control vide memo Ex.PW11/C; one pair of blood stained plastic chappal vide memo Ex.PW11/D. According to the witness Ct. Munawar Khan also reached the spot along with copy of FIR which is Ex.PW14/B and the original rukka and handed over the same to him. He has proved having prepared the site plan which is Ex.PW18/A at the instance of Om Parkash and he recorded the statement of members of crime team and they were discharged. He has further deposed that on the same day, during investigations of the present case, a secret information was received that the person who had stabbed the deceased was hiding in a park of G­3 block, near Pethawali Gali, Sultapuri and on this information, he asked two­three public passersbye to join the investigation but they refused to join the same and without wasting the time he along with SI Babu Ram, Ct. Munawar Khan, Ct. Vijender and the eye witness Om Parkash went to the said park where at the instance of Om Parkash accused Rakesh @ Toni was apprehended with the help of the staff. Witness has further deposed that on his search, a knife was recovered from the right back inside his pant and he prepared the sketch of the knife which is Ex.PW11/D. According to him the total length of the knife was 34 cm, handle was 13cm long and the lade was 21 cm, width of the blade was 4 cm, the word "LORD" was engraved on it with some other words also. He has proved that the knife was St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 39 kept in a pullanda and was sealed with the seal of BS and was seized vide memo Ex.PW4/E and the accused was interrogated after which he was arrested vide his memo Ex.PW4/C and his personal search was conducted vide memo Ex.PW4/D during which Rs.250/­ and one mobile phone make TATA Indicom were recovered. According to him the accused made his disclosure statement which is Ex.PW11/E and thereafter he took them to the place of incident and pointed out the same vide pointing out memo Ex.PW11/F. He has further deposed that the clothes of the accused which he was wearing at that time having blood stains were got changed and were taken into possession after sealing the same in a pullanda with the seal of BS and was seized vide seizure memo Ex.PW4/F. The witness has also deposed that the seal after use was handed over to Ct. Vijender and after completion of the investigations, on that day, they all came back to the police station with the accused. According to him the eye witness was discharged from the spot and at the police station he deposited the case property with the MHC(M) and the accused was sent to lock up after his medical examination.

(40) The witness has further deposed that on 28.11.2010 he prepared the inquest papers which are Ex.PW5/C1 to Ex.PW5/C9, Ex.PW1/A and Ex.PW4/B and got the postmortem on the dead body of Suraj was got conducted in SGM hospital vide PM report St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 40 Ex.PW5/A and after postmortem the dead body was handed over to its relative vide receipt Ex.PW1/B. He has proved that the sealed pullanda which were given by the doctor were taken into possession by him vide memo Ex.PW12/A and on the same day, the accused was produced before the court from where he was remanded to judicial custody.

(41) Witness has proved that on 08.12.2010 he moved an application Ex.PW18/B for seeking subsequent opinion on the weapon of offence and the autopsy surgeon gave his opinion on the back of the said application vide Ex.PW5/B. He has also proved having sent the exhibits through Ct. Sombir to FSL Rohini and he tendered the result of FSL which is Ex.PX and Ex.PY and collected the PCR form which is Ex.PW15/A. (42) The witness has correctly identified the accused in the Court and also the case property i.e. the knife which is Ex.P6; one pant of gray colour, one shirt of pink colour and one full sleeves black colour sweater which were worn by the accused at the time of his arrest which pant is Ex.P7; shirt is Ex.P8; sweater which is Ex.P9; a pair of black colour chappal as the same which were recovered from the spot which chappals are collectively Ex.P10 and one half brick having word KS and mark of 'Swastik' engraved on it which is Ex.P11. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 41 (43) In his cross­examination by the Ld. Defence Counsel the witness has deposed that he was informed by the Duty Officer at about 7.05PM and he reached the spot after 20­25 minutes. He has denied the suggestion that the place of incident is a thickly crowded place or that there were shops situated near the spot of incident. According to him, there is a MCD School situated at the spot but he did not make any inquiry from the security guard of the said school. He has testified that he reached the hospital at about 7.45PM and it took him about half an hour in recording the statement of the complainant. According to him, he sent rukka to the police station at about 9.20 PM and the crime team reached at the spot at about 9.45PM. He has also deposed that he did not obtain the signatures of public persons gathered there on the memos prepared by him and the writing work was done while sitting in front of MCD School. He has admitted that he did not show any source of light on the site plan Ex.PW18/A nor did he obtain signatures of complainant Om Prakash on the said site plan. The witness has further deposed that the secret informer met him at the spot at about 12.00 midnight. According to him, he did not inform his senior officers and to the police station regarding the receiving of secret information. He has admitted that after giving secret information, the secret informer left the spot. He has stated that he reached the park at G­3 Block within five to seven minutes. According to him, the accused did not try to use or show the knife carried by him St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 42 to the police officials. He has further deposed that the writing work was done while sitting under the light situated in the park and no public person gathered there at the spot. He has denied the suggestion that at the time of arrest accused Rakesh was also injured. The witness has testified that the blood stained clothes of Rakesh were seized at the police station which clothes were sent to FSL on 29.12.2010. He has denied the suggestion that accused did not make any disclosure statement or that the same was prepared by him after obtaining the signatures of the accused on blank papers or that the signatures of the accused were taken on some blank papers which were converted into incriminating documents against him in the present case. STATEMENT OF ACCUSED / DEFENCE EVIDENCE:

(44) After completion of prosecution evidence, the statement of the accused Rakesh @ Toni was recorded under Section 313 Cr.P.C.

wherein all the incriminating material was put to the accused which he has denied. According to the accused, he was not apprehended in the manner as stated by the prosecution and nothing was recovered from his possession or at his instance and the knife has been planted upon him. He has stated that he is innocent and has been falsely implicated in this case. He has further stated that he was lifted by the police from Rattan Vihar, Indra Jheel when he was making some purchases and falsely implicated in this case. According to him, the knife has been St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 43 planted upon him by the police to implicate him in this case. However, the accused has preferred not to lead any evidence in his defence. FINDINGS:

(45) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed on behalf of the parties and have gone through the testimonies of the various witnesses.

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

  Sr.        Name of the                                Details of deposition
 No.            witness
Public witnesses:
1.        Ramesh Kumar             He is the maternal uncle (Mama) of the deceased who 
          (PW1 )                   has   proved   that   on   28.11.10   he   identified   the   dead  

body of his nephew (bhanja) Suraj vide statement Ex.PW1/A and after the postmortem, the dead body was handed over to them copy of which receipt is Ex.PW1/B.

2. Rajesh Kumar He also the maternal uncle (Mama) of the deceased (PW2) Suraj and is an eye witness to the incident who has deposed on the following aspects:

1. That on 27.11.2010 at about 6:25 PM, he along with his cousin brother Om Prakash @ Pintu (son of his Mausi) and his bhanja Suraj (deceased) had gone to Shani Bazar Road Sultan Puri from where his cousin brother Om Prakash purchased an 'All­Out' liquid bottle and Suraj purchased one old sweater of black St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 44 colour which Suraj had worn.

2. That thereafter they started walking towards G­Block and at about 6:45 PM they reached near Government School in G­Block and sat near public toilet and started smoking biri.

3. That in the meantime accused Rakesh @ Toni S/o Billu R/o G­Block, Sultan Puri whom the witness has identified in the court and was earlier known to them prior to the incident having seen him roaming in the area, reached there.

4. That accused asked from Suraj in his presence by exhorting "chal be cigarette pila" on which Suraj told that he was not having cigarette and was having only biri.

5. That the accused Rakesh @ Toni become aggressive (tav me aakar bola ki bahanchod tu janta nahi hai ki mai kaun hoon) and also exhorted that he would count up to three and if he (Suraj) failed to provide cigarette to him, he (accused) would finish Suraj (Abhi kaam tamam kar doonga).

6. That thereafter the accused started counting up to three and after counting up to three, accused Rakesh @ Toni took out a knife from the right side back pocket of his wearing pant and attacked with the same on the chest of Suraj in his presence.

7. That Om Prakash took out a brick from there and threw the same upon the accused Rakesh @ Toni after which Rakesh @ Toni ran away from the spot and blood started oozing out from the chest injury of Suraj.

8. That someone informed the PCR at 100 number on which the police reached the spot and removed Suraj to SGM Hospital.

9. That he along with his cousin brother Om Prakash reached the hospital where doctor declared his nephew Suraj as brought dead. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 45

10. That Inspector Balbir Singh along with his staff reached the hospital and recorded the statement of Om Prakash after which they along with the Investigating Officer reached at the spot.

He has correctly identified the accused Rakesh @ Toni in the Court and also identified the case property i.e. the pant which is Ex.P1; shirt Ex.P2; sweater Ex.P3; baniyan Ex.P4, underwear Ex.P5 and the weapon of offence i.e. knife which is Ex.P6.

3. Brijesh Sangwan He is an independent witness who has deposed as (PW3) under:

1. That he was working as a Reporter with News 24TV channel.

2. That on 27.11.2010 he was playing Badminton with the boys in his gali when at about 6:45­7:00 PM he heard crises from Shauchalaya side.

3. That he reached there and found one boy lying in an injured condition who was having stab injuries and he died at the spot.

4. That the name of deceased was revealed at the spot as Suraj and one associate of Suraj (since deceased) was also present there.

5. That he informed the PCR at 100 number as well as also informed at 102 number for Ambulance service.

6. That the PCR van reached at the spot and deceased was removed to hospital by the PCR officials.

4. Om Prakash He is also the maternal uncle of the deceased and is (PW4) an eye witness to the incident. He has deposed on the following aspects:

1. That he is residing at H. No.66, Gali no.2, Rattan Vihar, Delhi with his elder brother Ramesh as tenant.

2. That he is a rickshaw puller and generally park his rickshaw in G Block, Shani Bazaar St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 46 near police booth.

3. That 27.11.10, at about 6.15 ­ 6.30 p.m. he along with his cousin brother Rajesh (son of his mausi) and his nephew Suraj left the house for purchasing an 'All Out' bottle for mosquito killing and for purchasing a sweater for his nephew Suraj.

4. That they reached at Shani Bazaar Chowk, Sultan Puri from where he purchased the 'All Out' bottle and Suraj purchased an old black sweater of full sleeves and wore same there only after which they started going towards home.

5. That on the way at G Block, opposite Government school near Public toilets, they started smoking biri and at about 6.45 p.m. when they were smoking biri, accused Rakesh @ Toni (whom the witness has correctly identified in the Court) who is son of Billu and known to them being living in the same locality, came.

6. That the accused had a habit of snatching money from poor persons and Immediately after coming he asked his nephew Suraj "chal be cigarette pila" (give a cigarette to him for smoking) on which his nephew replied him that he did not have a Cigarette and he only had biri with him.

7. That on hearing this, accused Rakesh @ Toni abused his nephew in filthy language and said that he would count upto three and if by that time, Cigarette was not arranged, he would kill Suraj.

8. That thereafter the accused counted upto three and thereafter, took out a big knife from the right side of his pant and stabbed on the left side chest of Suraj.

9. That on seeing this, he took out a half brick lying there and threw it on the accused due to St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 47 which, he fled away from the spot and somebody informed the police at 100 number.

10. That police reached at the spot and took his nephew to SGM Hospital and he along with cousin Rajesh also reached at the hospital where doctor declared his said nephew Suraj as brought dead.

11. That police recorded his statement in the hospital which is Ex.PW4/A.

12. That from the hospital, he along with Rajesh came back at the spot with the police where police prepared site plan at his instance and police lifted blood, earth control, chappal and brick etc. from the spot.

13. That the postmortem on the dead body of his nephew was conducted on 28.11.10 and his identification statement was recorded by the police which is Ex.PW4/B and after postmortem the dead body was received by him and his brother Ramesh vide receipt Ex.PW1/B.

14. That on 28.11.10, accused Rakesh @ Toni was arrested from pethewali gali near G Block Park, Sultan Puri in the night at about 12­/1 AM on the basis of a secret information and he had also put his thumb impression at point A on his arrest memo which is Ex.PW4/C.

15. That on seeing the police the accused tried to run away but was apprehended by the police after jumping the wall of the park and his personal search was conducted vide Ex.PW4/D.

16. That a knife was recovered from the pocket of his pant and police made some drawing of the said knife on a paper after which it was kept in a white coloured cloth parcel and put some plastic substance on it after melting the same ('chaku ki drawing banayi gayi aur plastic jaisi cheeze ko pighlakar kapde ke pullande St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 48 par mohar lagayi gayi').

17. That thereafter, the said knife was taken into possession by the police vide memo Ex.PW4/E and one mobile phone and some cash amount was also recovered from the search of the accused.

18. That the police took into possession the wearing clothes of the accused and asked him to change the clothes after which the wearing clothes of the accused were taken into possession by the police vide memo Ex.PW4/F.

19. That the shirt of the accused was of pink colour and sweater was of black colour and pant was of black/ gray colour.

He has correctly identified the accused Rakesh @ Toni in the Court and also identified the case property i.e. one pant, one shirt, one sweater full sleeves of black colour, one baniyan, one underwear belonging to the deceased Suraj which are Ex.P­1 to Ex.P­5; one knife which is Ex.P6; one pant of gray colour, one shirt of pink colour and one full sleeves black colour sweater as the same clothes which were worn by the accused at the time of his arrest, the pant is Ex.P7, shirt is Ex.P8 and sweater is Ex.P9.

5. Prashant (PW6) He is a private photographer who has proved that on 27.11.2010, at the instance of the police, he reached at G Block, near Primary School, Shani Bazar Road where he took the photographs of the scene of incident from different angles from his digital camera, which photographs are Ex.PW6/A1 to Ex.PW6/A5 which were handed over to the Investigating Officer.

Medical witnesses:

6. Dr. Manoj Both these witnesses have proved that on 28.11.2010 Dhingra (PW5) & at about 1:00 PM they conducted the postmortem examination on the dead body of Suraj S/o Raju vide Dr. J.V. Kiran Postmortem Report which is Ex.PW5/A. They have (PW8) proved the following facts:

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 49

1. That the cause of death was hemorrhage and shock consequent to penetrating injury to the chest via injury no.1 caused by single edged sharp stabbing weapon, all injuries were antemortem fresh in duration and time since death was about 18 hours.

2. That total number of inquest papers were 12 and the articles sealed and handed over to Investigating Officer were blood on gauze and clothes which are Ex.P1 to Ex.P5.

3. That on on 8.12.2010, an application was received from Investigating Officer with a sealed parcel sealed with the seal of BS.

4. That on opening the packet, it was containing a single edged knife outline of which has been shown on the right side, light brown stains were present on the knife on both the sides.

5. That after examination of Postmortem report, clothes and the knife it was opined that injuries mentioned in the Postmortem report were possible by the said knife.

6. That the sketch of the knife was prepared before it was resealed with the seal of SGMH and handed over to the Investigating Officer.

7. That the subsequent opinion and the sketch of the knife are collectively Ex.PW5/B. They have proved the various inquest papers which are Ex.PW5/C1 to C10, Ex.PW1/A and Ex.PW4/B and have also identified the knife examined by them which knife is Ex.P6.

7. Dr. M. Das (PW7) This witness has proved that on 27.11.2010 he was working as CMO at SGM Hospital, Mangol Puri and on that day at about 7.40 PM he examined one patient Suraj S/o Raju age 32 years, male who was brought by Ct. Manoj of Police station Sultan Puri and after examining him, he was declared brought dead by him vide MLC Ex.PW7/A and the body was sent to mortuary for postmortem.

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 50

Police / Official witnesses:

8. Ct. Sombeer This witness has proved that on 29.12.10 he had (PW9) deposited 8 sealed pullanda with FSL Rohini, Delhi vide RC no. 163/21/10 .

9. HC Govind He is a formal witness being the MHCM who has (PW10) proved the entry No.12684 in Register No.19 which is Ex.PW10/A; copy of RC No.163/21/10 which is Ex.PW10/B and the receipt copy of FSL which is Ex.PW10/C.

10. Ct. Vijender This witness was on beat duty and had visited the spot Kumar (PW11) after receiving the call. He had joined the proceedings with the Investigating Officer and has proved the following documents Ex.PW11/A Seizure memo of blood gauze piece Ex.PW11/B Seizure memo of half brick Ex.PW11/C Seizure memo of blood stained chappal Ex.PW11/D Sketch of the knife Ex.PW11/E Disclosure statement of the accused Ex.PW11/F Pointing out memo of the accused

11. Ct. Manoj Kumar This witness was also on Beat Duty and had reached (PW12) the spot on receiving the call. He has proved that on

28.11.2010 after the postmortem the doctor handed over to him two sealed pullandas and one sample seal of SGMH mortuary Mangol Puri which were taken into possession by the Investigating Officer vide memo Ex.PW12/A.

12. Ct. Munawar This witness had gone to the spot along with Inspector Khan (PW13) Bablir Singh and has joined the investigations with him. He has corroborated the testimony of Ct.

Virender (PW11) in toto and has proved the various documents i.e. seizure of blood vide memo Ex.PW11/A; seizure of half brick vide memo Ex.PW11/B; seizure of earth control and blood stained earth control from the spot vide memo St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 51 Ex.PW11/C; seizure of one pair of blood stained plastic chappal vide memo Ex.PW11/D; sketch of the knife recovered from the accused which is Ex.PW11/E; seizure of knife vide memo Ex.PW4/E;

pointing out memo Ex.PW11/F; seizure of clothes of the accused vide memo Ex.PW4/F; arrest memo of accused vide Ex.PW4/C; personal search memo of the accused which is Ex.PW4/D and disclosure statement of accused which is Ex.PW11/E.

13. HC Ram Pal He is a formal witness being the Duty Officer who has Singh (PW14) proved the DD No.37­A copy of which is Ex.PW14/A;

copy of FIR which is Ex.PW14/B and his endorsement on the rukka which is Ex.PW14/C.

14. Lady Ct. Soni She is a formal witness being the PCR official who Kumari (PW15) has proved that on 27.11.10, at about 7.02 PM an information was received regarding stabbing of a person at Sultan Puri main Shani Bazaar Road, near Primary School on which she recorded this information and filled­up the PCR Form computerized copy of which is Ex.PW15/A.

15. SI Surender Singh He is a formal witness being the Crime Team (PW16) Incharge who has proved that on 27.11.2010 at about 9.45 PM he visited the spot of incident and inspected the same after which he prepared his report which is Ex.PW16/A which he handed over to the Investigating Officer.

16. SI Babu Ram This witness had also visited the spot of incident after (PW17) receiving the information from the Duty Officer and has joined the investigations with Inspector Balbir Singh.

17. Insp. Balbir Singh He is the Investigating Officer of the present case and (PW18) apart from the documents already proved by the various witnesses, he has proved having prepared the site plan of the spot of incident which is Ex.PW18/A and having moved an application for subsequent opinion on the weapon of offence which is Ex.PW18/B. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 52 (46) Coming now to the microscopic evaluation of the evidence against the accused.

Medical Evidence:

(47) Dr. M. Das (PW7) has proved that on 27.11.2010 at about 7.40 PM the injured Suraj S/o Raju age 32 years, male was brought to the SGM Hospital by Ct. Manoj and after examining him, he was declared brought dead. He has proved the MLC of the injured which is Ex.PW7/A. (48) Dr. Manoj Dhingra (PW5) and Dr. J.V. Kiran (PW8) have proved having conducted the postmortem examination on the dead body of Suraj vide Postmortem Report Ex.PW5/A according to which there were three injuries on the body of the deceased which are as under:

1. Stab wound 8cm x 2.5cm x about 12cm deep present on left side chest, single edged, obliquely placed with the inner lower end placed 5cm right to midline point 15cm below upper end of manubrium sternii and the outer upper end placed 2cm outer to the nipple. The outer end of the wound was obtuse and the inner end was acute. The wound was directed downward, inward and backward penetrating through the fifth intercostal space cutting the fifth and sixth ribs, cutting lower third of anterior margin of left lung, through the left outer­front aspect of pericardium, St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 53 penetrating the left outer­front aspect of heard wall through the lumen and passing through the left outer aspect of heart wall and causing a rent in the outer aspect of the pericardium and the left diaphragm.

2. Incised wound 4.5cm x 0.5cm x subcutaneous deep horizontally placed present on inner lower aspect of right buttock 4.5cm below and outer to the anus and the inner end of the the wound placed 3.5cm outer to the perineum.

3. Incised wound 1cm x 0.4cm x subcutaneous deep present on inner lower aspect of left buttock in line with injury No.2, present 2cm outer to the perineum.

(49) They have proved that the cause of death was hemorrhage and shock consequent to penetrating injury to the chest (vital organ) via injury no.1 caused by single edged sharp stabbing weapon, all injuries were antemortem fresh in duration and time since death was about 18 hours. Both Dr. Manoj Dhingra and Dr. J.V. Kiran have proved that the subsequent opinion on the weapon of offence which is Ex.PW5/B according to which the injuries mentioned in the Postmortem report were possible by the said knife which is Ex.P­6.

(50) In view of the above, I hereby hold that the medical evidence on record is compatible to the prosecution case that the death St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 54 of the deceased had occurred on account of stab injury. Forensic Evidence:

(51) The Biological and Serological Report Ex.PX and Ex.PY prepared by Ms. Manisha Upadhyaya, Senior Scientific Officer (Biology) which are admissible in evidence under Section 293 Cr.P.C.

have not been disputed by the accused. The said report shows the presence of human blood on Ex.1 (cotton wool swab­lifted from the spot); Ex.2 (Piece of brick­lifted from the spot); Ex.3a (blood stained concrete material); Ex.4 (pair of chappal­belonging to the deceased); Ex.5 (weapon of offence); Ex.6a (jeans pants­belonging to the accused); Ex.6b (shirt­belonging to the accused); Ex.7a (pants­ belonging to the deceased); Ex.7b (shirt­belonging to the deceased); Ex.7c (full sleeves sweated­belonging to the deceased); Ex.7d (baniyan­belonging to the deceased); Ex.7e (underwear­belonging to the deceased) and Ex.8 (gauze cloth piece). In fact, Ex. 1, Ex.4, Ex.7a, Ex.7b, Ex.7c, Ex.7d, Ex.73 and Ex.8 shows the presence of blood of Group A (belonging to the deceased).

(52) It is evident from the above that the material lifted from the spot showed positive reaction for Human Blood thereby establishing the place of incident. I may observe that the the weapon of offence i.e. knife also shows the presence of Human Blood on the same and it became necessary for the accused to explain how the Human Blood St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 55 was found on the clothes which he was wearing at the time of his arrest and also the knife recovered from his possession, which he has not been able to explain. The onus of proving that the human blood does not belong to the deceased also shifts upon the accused on account of the fact that the ocular evidence which has come on record in the form of testimonies of both Rajesh Kumar (PW2) and Om Prakash (PW4) who have not only identified the accused Rakesh @ Toni as the person who inflicted the knife blow on the deceased Suraj but have also identified the said knife Ex.P6 as the same with which the accused Rakesh @ Toni had inflicted injuries upon the deceased. The forensic evidence on record has gone uncontroverted and I hold that the same is compatible to the prosecution case that the accused Rakesh @ Toni had inflicted injures upon the deceased with the weapon of offence Ex.P­6. Ocular Evidence / Allegations against the accused:

(53) Ocular evidence/ eye witness count is the best evidence in any case. The entire case of the prosecution is based upon ocular evidence i.e. the testimony of eye witness account of uncles of the deceased namely Rajesh Kumar (PW2) and Om Prakash (PW4) who were present with him through out the incident and had also rushed him to the hospital where the deceased was declared brought dead.

The case of the prosecution is that on the date of the incident i.e. on 27.11.2010 at about 6:25 PM when Om Prakash @ Titu, Rajesh Kumar St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 56 and their nephew Rakesh @ Toni had gone to Shani Bazar Road to made purchases and while they were sitting near government school and started smoking biri, the accused Rakesh @ Toni S/o Billu a resident of G Block who was habitual in taking money from poor persons and was known to them prior to the incident came to them and asked for a cigarette from Suraj on which Suraj told him that he did not have any cigarette and was only having biri. On this the accused Rakesh @ Toni exhorted that he would count upto three and if he (Suraj) failed to give him the cigarette he would finish him off. Thereafter the accused started counting after which he took out a knife from the right side of his pant which he was wearing and inflicted single blow on the chest of Suraj in the presence of Om Prakash and Rajesh Kumar. On this Om Prakash picked up a half brick lying near the place and threw the same on Rakesh @ Toni who ran away from the spot but blood started oozing out from the chest injury and an alarm was raised. Somebody in the area informed the police after which police reached the spot and rushed the injured to the SGM hospital while simultaneously Rajesh Kumar and Om Prakash also reached the hospital where the deceased was declared 'Brought Dead'. In this regard the testimonies of Rajesh Kumar (PW2) and Om Prakash (PW4) are most relevant which find due corroboration the testimony of Brijesh Sangwan (PW3) who had made a call to the PCR. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 57 (54) Coming first to the testimony of Rajesh Kumar (PW2) the maternal uncle of the deceased who was with him at the time of incident, the relevant portion of the same is as under:

"........ I am a rickshaw puller and used to ply my rickshaw nearby area of Shani Bazar Road. On 27.11.10 at about 6.25PM I alongwith my cousin brother Om Prakash @ Pintu (son of my mausi) and my bhanja Suraj (since deceased) had gone to Shani Bazar road, Sultan Puri and from Shani Bazar, my cousin brother Om Prakash @ Pintu purchased an 'All Out' liquid bottle and my bhanja Suraj purchased one old sweater of black colour and Suraj worn the same there and thereafter, we started walking towards G Block. At about 6.45PM we reached near Govt. School in G block and sat near public toilet and started smoking biri there. In the meantime, accused Rakesh @ Toni present in the court today (correctly identified by witness) who is the son of Billu R/o G Block, Sultanpuri and accused known to us prior to the incident, reached there. Accused asked from Suraj (since deceased) in my presence by exhorting that "chal be cigarette pila". On this Suraj told accused that he is not having cigarette and he is having biri only. Thereafter, accused Rakesh @ Toni become aggressive (tav me aakar bola ki bahanchod tu janta nahi hai ki mai kaun hoon). Accused also exhorted that he will cound up to three and if he (Suraj) failed to provide cigarette to him, he will finished him (Suraj) i.e. (abhi kaam tamam kar doonga).

Thereafter accused started counting up to three and after counting up to three, accused Rakesh @ Toni took out a knife from the right side back pocket of his St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 58 wearing pant and attacked with the same on the chest of Suraj in my presence. Om Prakash took out a brick from there and threw the same on accused Rakesh @ Toni. Thereafter, accused Rakesh @ Toni ran away from the spot, blood started oozing out from the chest injury of Suraj. Someone informed the PCR at 100 number. Police reached at the spot. Police removed Suraj to SGM Hospital. I alongwith my cousin brother Om Prakash also reached in hospital where doctor declared my nephew Suraj as brought dead.

Thereafter, Inspector Balbir Singh alongwith his staff reached in the hospital and he recorded the statement of Om Prakash in the hospital. Thereafter, we alongwith the IO reached at the spot. I left the spot for my house leaving behind my cousin brother Om Prakash and police. IO recorded my statement in this regard. I can identify the case property i.e. clothes of my nephew Suraj (since deceased), knife, clothes of accused etc, if shown to me.....".

(55) Rajesh Kumar (PW2) has been cross­examined at length wherein he has explained he, Om Prakash and Suraj (deceased) were all rickshaw pullers and he knew the accused prior to the incident when they used to ply rickshaw in the area but did not know the other particulars at the time of incident. He has also explained that he is not aware if the deceased Suraj and the accused were having friendly relations or whether the accused was addicted to smack or liquor. He has explained that there was a big crowd in the Shani Bazar which was 70­80 meters away from the incident and has explained that due to St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 59 Shani Bazar no vehicles were going and coming from the road. He has also stated that they were sitting in front of Government School and the public toilet was on the opposite side of the road and the accused was coming from the opposite side i.e. from the side of public toilet. The witness has explained that he was sitting in the corner whereas deceased Suraj was sitting next to him and Om Parkash @ Titu was on the next corner when the accused came and told Suraj "tum mujhe jaante ho, ek, do, teen tak ginunga, jao yahan se, nahin to tumhe batata hun." He has explained that in fact the accused did not complete the counting and gave a knife blow to Suraj. According to him, the entire incident took place within five minutes. (56) Coming next to the testimony of Om Prakash (PW4), the relevant portion of the same is as under:

"..........I am residing on the above mentioned address with my elder brother Ramesh as tenant and I am a rickshaw puller. I generally park my rickshaw in G block, Shani Bazaar near police booth. On 27.11.10, at about 6.15 p.m./6.30 p.m., I along with my cousin brother Rajesh (son of my mausi) and my nephew Suraj left the house for purchasing an 'All out bottle' for mosquito killing and for purchasing a sweater for my nephew Suraj. We reached at Shani bazaar chowk, Sultan Puri and I purchased the said 'All Out' bottle and Suraj purchased an old black sweater of full sleeves and he wore the said sweater there only. Thereafter, we all three were going towards home and there on the way at G block, St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 60 opposite Government school near Public toilets, we started smoking biri. At about 6.45 p.m., when we were smoking biri, accused Rakesh @ Tony present in the court today (witness correctly identifies the accused) who is son of Billu and known to us being living in the same locality. He is in the habit of snatching money from poor persons. Immediately after coming he asked my nephew Suraj "chal be cigarette pila" (give a cigarette to me for smoking) on which my said nephew replied to him that he did not have a cigarette and he only had biri with him. On hearing this, accused Rakesh @ Tony abused my said nephew in filthy language and said that he would count upto 3 and if by that time, cigarette was not arranged, he would kill Suraj. Thereafter, the accused counted upto 3 and thereafter, took out a big knife from the right side of his pant and stabbed on the left side chest of Suraj. On seeing this, I took out a half brick lying there and threw it on the accused due to which, he fled away from the spot. Somebody informed the police on 100 number. Police reached at the spot and took my nephew to SGM Hospital. I along with cousin Rajesh also reached at the hospital where doctor declared my said nephew Suraj as brought dead. Police recorded my statement in the hospital which is Ex.PW4/A which bears my thumb impression at point A. Whatever is deposed by me was narrated to the police also in my statement. From the hospital, I along with Rajesh came back at the spot with the police where police prepared site plan at my instance. Police lifted blood, earth control, chappal and brick etc. from the spot. The postmortem on the dead body of my nephew was conducted on 28.11.10 and my identification St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 61 statement was recorded by the police which is Ex.PW4/B which bears my thumb impression at point A. After postmortem, the dead body was received by me and my brother Ramesh vide receipt already Ex.PW1/B. On 28.11.10, accused Rakesh @ Tony was arrested from pethewali gali near G block park, Sultan Puri in the night at about 12/1 a.m. on a secret information. I had also put my thumb impression at point A on his arrest memo which is Ex.PW4/C. The accused on seeing the police tried to run away who was apprehended by the police after jumping the wall of the park. His personal search was conducted which is Ex.PW4/D. A knife was recovered from his pocket of his pant. Police made some drawing of the said knife on a paper and thereafter, kept the same in a white colour cloth parcel and put some plastic substance on it after melting the same. ( the witness uses the words in vernacular ' chaku ki drawing banayi gayi aur plastic jaisi cheeze ko pighlakar kapde ke pullande par mohar lagayi gayi' ) Thereafter, the said knife was taken into possession by the police vide memo Ex.PW4/E which bears my thumb impression at point A. One mobile phone and some cash amount was also recovered from the search of the accused. The police took into possession the wearing clothes of the accused and asked him to change the clothes. The said wearing clothes of the accused were taken into possession by the police vide memo Ex.PW4/F which bears my thumb impression at point A. The shirt of the accused was of pink colour and sweater was of black colour and pant was of black/ gray colour. I can identify the case property i.e. clothes of St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 62 deceased, of accused and the knife which was used as weapon of offence, if shown to me....".

(57) Om Prakash has also been subjected to sustained cross­ examination wherein he has corroborated the testimony of Rajesh Kumar in material particulars. He has stated that after parking the rickshaw in the Parking Area at about 3:30 PM he went to the house of his brother Ramesh at Rattan Vihar after which he along with his cousin Rajesh and Suraj left for Shani Bazar Road. He has corroborated the testimony of Rajesh Kumar to the extent that Suraj was sitting in the middle whereas he and Rajesh Kumar were sitting in the corners. He has also explained that he did not oppose the abuses given by the accused to them. He has stated that he knew the accused being a resident of the area but he was not aware if Suraj (deceased) had any friendship or dispute with accused. He has explained that he had never seen the deceased Suraj standing with the accused prior to the incident. He has further stated that both he and Rajesh were not carrying the mobile phone at the time and has explained that Rajesh did have a mobile phone but it was at his house. He has further explained that he threw a half brick which hit the shoulder of the accused and had also raised an alarm but since the accused was having a knife they did not chase him. He has further explained that some boys were playing badminton near the spot but they also did not come forward at that time out of fear and public persons came only after the police came after ten St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 63 minutes when they went to the hospital along with the injured. (58) The testimonies of Rajesh Kumar and Om Prakash find due corroboration from an independent witness namely Brijesh Sangwan (PW3) who had made a call to the PCR and has confirmed the presence of maternal uncle / mama of the deceased at the spot. Brijesh Sangwan (PW3) has confirmed that on the date of the incident at about 6:45­7:00 PM when he was playing badminton with the boys of the gali he heard the cries from the side of public toilet and when he reached there one boy was found lying in the injured condition having stab injury and had died at the spot. He has further confirmed that the name of the deceased was revealed as Suraj at the spot and associate of the deceased was also present there on which he immediately made a call to the PCR at 100 number as well as informed the Ambulance at 102 number. He has further stated that PCR van reached the spot and deceased was removed to hospital by the PCR officials. In his cross­examination he has explained that the relative of the deceased was present at the spot but did not disclose his name in his presence and told that the deceased was his bhanja (nephew). (59) The fact that Om Prakash and Rajesh Kumar were present at the spot also finds due corroboration from the PCR Form Ex.PW15/A which has been duly proved by W/Ct. Soni (PW15) showing that the call was received on 27.9.2010 at 7:02 PM after St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 64 which the PCR Van reached the spot only at 7:21 PM on account of heavy traffic jam after which the injured was taken to SGM Hospital. At 7:41 PM the PCR sent a wireless message stating that the injured Suraj S/o Raju aged 30 years R/o Gali No.2, Rattan Vihar was brought to the SGM Hospital who had been injured on chest near the heart and the doctors declared him brought dead. His mama Manoj was with them who informed Suraj and his mama Titu had gone to purchase 'All Out' from the shop where Suraj had collided with some unknown person and that person had inflicted a stab injury on Suraj and went away. This was the earliest information which the PCR officials had given to the Control Room via WT message and is deemed to be authentic being recorded in the computer and could not have been changed. This first information by the PCR officials confirm the presence of Om Prakash @ Titu and Mama of the deceased.

(60) The MLC of the deceased Suraj which is Ex.PW7/A shows that the name, parentage and age of the deceased has been specifically mentioned. Though it had been mentioned that it was Ct. Manoj who had brought the injured to the hospital yet the fact that the name & other details of the injured have been mentioned in the MLC also confirms the presence of the relatives of the deceased in the hospital who were in a position to give this information. More over Brijesh St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 65 Sangwan (PW3) having independently proved and established the presence of one of the relatives of the injured who had given the name of the injured as Suraj which name he had come to know at the spot itself again confirming the present of material uncle / mama of the deceased namely Om Prakash @ Titu on whose statement the present case has been registered. It is writ large from the testimony of Om Prakash @ Titu that he has specifically named the accused Rakesh @ Toni as the person who had confronted them on the way when they were sitting and smoking biri. He has explained that initially he was not aware of the name of the accused but later came to know of it. I may observe that Rakesh @ Toni is a resident of the same area and both the eye witnesses Rajesh Kumar (PW2) and Om Prakash (PW4) have confirmed that he did not enjoy a good reputation in the area and used to roam around and used to take money from poor persons and even when they confronted him, he asked for a cigarette from Suraj. I may also observe that the manner in which the entire incident took place, I am sure that it must have lasted for about a minute. It is natural for a truthful and credible witnesses to get confuse with regard to the events which took place in a quick succession [Ref.: Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1)]. The deceased Suraj was the nephew (bhanja) of the eye witnesses. The eye witnesses Rajesh Kumar, Om Prakash and the deceased Suraj were all rickshaw pullers St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 66 and are working hard to earn their livings whereas the accused before this Court is a Vega Bond who does not enjoy a good reputation in the area and in the habit of collect money from poor persons and intimidating them. They were known to them previously but they have been taken by surprise and on seeing their nephew dead within seconds, at the first instance they were unable to disclose the identity and complete details of the person who had inflicted injuries. There is no delay in registration of the FIR. As per the PCR form Ex.PW15/A at 7:41 PM the deceased was declared brought dead by the doctors and by that the local police/ SHO had already reached the spot. The statement of Om Prakash @ Titu was recorded wherein specific allegations were made against the accused and a Tehrir was prepared by Inspector Balbir Singh which was dispatched to the Police Station for registration of FIR at 9:20 PM and soon thereafter i.e. at 9:40 PM the FIR was registered, thereby lending authenticity to the case of the prosecution.

(61) There is no reason to doubt the version given by the witness Om Prakash. The possibility that the witness Rajesh Kumar (PW2) joined them later cannot be ruled out but in so far as the witness Om Prakash is concerned, his presence at the spot along with the deceased stands established from the independent testimony of Brijesh Sangwan (PW3) and also from the details and particulars of the deceased mentioned in the MLC which could not have been given by St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 67 anybody else but except for the eye witness who was present at the spot. The presence of Om Prakash (PW4) has also been confirmed from the PCR Form showing that the mama of the injured namely Titu was present at the time of the incident. Although the PCR officials had recorded that it was one Manoj mama of the injured who was present at the spot yet it has been mentioned that the deceased Suraj along with his Mama had gone to the market to purchase 'All Out' and it was his mama who had accompanied the injured to the hospital. It appears that the name of the Mama has been wrongly mentioned in the WT message as Manoj because it was Ct. Manoj who had got the injured admitted in the hospital and this could have been because of confusion since even Ct. Manoj (PW12) in his testimony has explained that when he reached the spot PCR vehicle had also reached there and they found the injured along with one person namely Om Prakash and one other person whose name he does not recollect and they accompanied the injured to the hospital where the injured was declared brought dead.

(62) In view of the above background, I hereby hold that the testimony of Om Prakash (PW4) is credible, reliable and probable finding due corroboration from independent sources. He has not only identified the accused Rakesh @ Toni but has also proved the following facts:

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 68

➢ That on 27.11.10 at about 6.15 ­ 6.30 PM Om Prakash along with his cousin brother Rajesh (son of his mausi) and nephew Suraj left the house for purchasing an 'All Out' bottle for mosquito killing and for purchasing a sweater for Suraj. ➢ That they all reached Shani Bazaar Chowk, Sultan Puri from where Om Prakash purchased the 'All Out' bottle and Suraj purchased an old black sweater of full sleeves and wore the same there only after which they started going towards home. ➢ That on the way at G Block, opposite Government school near Public toilets, they started smoking biri after sitting at one corner.

➢ That at about 6.45 PM when they were smoking biri, accused Rakesh @ Toni son of Billu and known to them being living in the same locality, came.

➢ That Rakesh @ Toni asked Suraj to give a cigarette to him for smoking (chal be cigarette pila) on which Suraj replied that he did not have cigarette and he only had biri with him. ➢ That on hearing this, accused Rakesh @ Toni abused Suraj (tav me aakar bola ki bahanchod tu janta nahi hai ki mai kaun hoon) and exhorted that he would count up to three and if he (Suraj) failed to provide cigarette to him, he would finish Suraj (Abhi kaam tamam kar doonga) St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 69 ➢ That thereafter the accused counted upto three and took out a big knife from the right side of his pant and inflicted an injury on the left side chest of Suraj.

➢ That Om Prakash took out a half brick lying there and threw it on the accused due to which, the accused fled away from the spot.

➢ That an alarm was raised on which Brijesh Sangwan (PW3) came to the spot and found that both Om Prakash and Rajesh Kumar at the spot and also found that the injured had expired at the spot.

➢ That Om Prakash told Brijesh Sangwan that the deceased was his bhanja / nephew on which Brijesh Sangwan made PCR Call at 100 number and also at 102 number for Ambulance. ➢ That due to heavy traffic after about 15­20 minutes the PCR van reached the spot and rushed the injured Suraj to SGM hospital where he was declared brought dead. ➢ That the PCR officials thereafter communicated this information to Head Quarters.

➢ That the local police first reached the spot and thereafter hospital and recorded the statement of Om Prakash wherein he had specifically named the accused Rakesh @ Toni. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 70 ➢ That on the basis of the statement of Om Prakash the present FIR was got registered.

(63) It is writ large from the aforesaid that the accused Rakesh @ Toni was addicted to cigarette and when the deceased failed to provide him the cigarette he inflicted the knife blow on the chest (vital part) of the deceased Suraj without any provocation and instigation with such a force on the vital organ i.e. heart that it immediately caused the death of Suraj, thereby establishing the intent and knowledge so attributed to the accused Rakesh @ Toni under Section 300 Indian Penal Code punishable under Section 302 Indian Penal Code. (64) Further, it has been proved that at the time of his arrest the accused Rakesh @ Toni was found in possession of a knife. A judicial notice is taken of the Gazette Notification dated 17.2.1979 bearing No.F.13/203/78­Home (C) providing that any any person found in possession of a knife open or close with any of the mechanical device with a blade of 7.62 or more in length and 1.72 cms or more in breadth, in public places should be regulated. It has been proved that the knife so recovered from the accused Rakesh @ Toni was 34 cm in length, its handle was 13cm long, blade was 21 cm and width of the blade was 4 cm, which is clearly beyond the prescribed notified limits. I, therefore, hold the accused Rakesh @ Toni guilty of the offence under Section 25/27 of Arms Act.

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 71

Arrest and recovery of knife:

(65) The case of the prosecution is that after the case had been registered where the accused had been specifically named and the identity of the accused came to be known to the police, a secret information was received by the police on 28.11.2010 (next day) that accused was hiding in a park of G­3 Block, near Pethawali Gali, Sultapuri on which the Investigating Officer Inspector Balbir Singh tried to join two­three public persons but they refused. Without wasting any further time the police party comprising of Inspector Balbir Singh, SI Babu Ram, Ct. Munawar Khan, Ct. Vijender and the eye witness Om Parkash went to the said park where at the instance of Om Parkash accused Rakesh @ Toni was apprehended. During the personal search of the accused a knife was recovered from the right back inside his pant on which a sketch of the same was prepared which is Ex.PW11/D (it has been observed by the Court that the sketch matches with the knife Ex.P­6 produced in the Court, which knife had also been identified by Dr. Manoj Dhingra and Dr. J.V. Kiran). The Investigating Officer has proved that thereafter he measured the said knife whose total length was 34 cm, handle was 13cm long, blade was 21 cm, width of the blade was 4 cm, the word "LORD" was engraved on it after which the said knife was seized vide memo Ex.PW4/E. He has also proved having arrested the accused vide memo Ex.PW4/C; St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 72

having conducted his personal vide memo Ex.PW4/D and having recorded the disclosure statement of the accused which is Ex.PW11/E after which the accused pointed out the place of incident vide pointing out memo Ex.PW11/F. It is also the case of the prosecution that the accused had informed the police that he was wearing the same clothes which he was wearing at the time of the incident on which the wearing clothes of the accused were seized.

(66) The testimony of Inspector Balbir Singh (PW18) finds due corroboration from the testimonies of Ct. Vijender Kumar (PW11), Ct. Munawar Khan (PW12) and SI Babu Ram (PW17) and also find independent corroboration from the testimony of Om Prakash (PW4) who has proved that on 28.11.2010 on the basis of a secret information the accused Rakesh @ Toni was arrested from pethewali gali near G Block Park, Sultan Puri at about 12:00­1:00 AM; that the accused had tried to run away on seeing the police party but he was apprehended after jumping the wall of the park; that a knife was recovered from the back packet of the pants of the accused which knife was converted into a pullanda and seized in his presence.

(67) Om Prakash (PW4) has proved his signatures on the various documents of arrest and there is no reason to doubt the same. It is writ large that on the next day to the registration of FIR the accused Rakesh @ Toni was apprehended from the same area and there are little chances of fabrication of documents or false implication St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 73 of the accused to workout the case.

(68) In view of the above I hereby hold that the prosecution has been able to prove the arrest of the accused and recovery of knife from his possession.

No motive for the offence:

(69) The case of the prosecution is that the accused is a local bully, addicted to smoking and alcohol and in order to satisfy his addiction he was in a habit of taking money from persons who were extremely poor and if anybody refused he did not hesitate to use illegal force on him.

(70) According to the prosecution the only reason for killing the deceased Suraj was that Suraj could not give a cigarette to the accused as demanded by him because he had none. It is apparent from the evidence on record that on the day of the incident deceased Suraj, Om Prakash and Rajesh Kumar who are all poor rickshaw pullers came in line of firing of the accused Rakesh @ Toni. They all were returning from the Shani Bazar and while returning they sat on one corner and started smoking biri when the accused saw them and asked Suraj to give him a cigarette on which Suraj told him that he was only carrying a biri. On this the accused lost his mind and told Suraj that he would count up­to three and if he failed to provide him the cigarette he would finish him off. The accused thereafter started counting and before he St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 74 could even count three the accused took out a knife and inflicted an injury on the chest of Suraj and this he did before anybody could realize what had happened.

(71) It is writ large that whatever had happened at the spot was all of a sudden and the deceased was killed only because the accused was annoyed at him for not giving him a cigarette and hence no motive can be attributed to the accused.

(72) There can be no justification for taking the life of another yet it is one case where I may observe that the manner in which the life of a young boy has been put to an end is reflective of the fact that the accused Rakesh @ Toni has no value for human life. In the present case there was absolutely no reason for this thoughtless act of the accused who wanted to show himself as a goon / dada of the area. I may observe that motive assumes secondary role and even if there was no motive of crime or the motive to commit the crime is not fully established, even then, the same would not fatal be the case of prosecution in as much as the prosecution case stands proved from the other evidence i.e. ocular evidence, which is found to be truthful and reliable. For holding this view, I am fortified by the judgments in the cases of Mehr Lal Arora and Anr. reported in AIR 1947 SC 1593 and in the case of Surender Narayan @ Manu Pandey Vs. State of U.P. reported in AIR 1988 SC 192.

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 75

FINAL CONCLUSIONS:

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

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

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

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

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

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

(74) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record the following facts stand St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 76 established:

➢ That on 27.11.10 at about 6.15 ­ 6.30 PM Om Prakash along with his cousin brother Rajesh (son of his mausi) and nephew Suraj left the house for purchasing an 'All Out' bottle for mosquito killing and for purchasing a sweater for Suraj. ➢ That they all reached Shani Bazaar Chowk, Sultan Puri from where Om Prakash purchased the 'All Out' bottle and Suraj purchased an old black sweater of full sleeves and wore the same there only after which they started going towards home. ➢ That on the way at G Block, opposite Government school near Public toilets, they started smoking biri after sitting at one corner.

➢ That at about 6.45 PM when they were smoking biri, accused Rakesh @ Toni son of Billu and known to them being living in the same locality, came.

➢ That Rakesh @ Toni asked Suraj to give a cigarette to him for smoking (chal be cigarette pila) on which Suraj replied that he did not have cigarette and he only had biri with him. ➢ That on hearing this, accused Rakesh @ Toni abused Suraj (tav me aakar bola ki bahanchod tu janta nahi hai ki mai kaun hoon) and exhorted that he would count up to three and if he (Suraj) failed to provide cigarette to him, he would St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 77 finish Suraj (Abhi kaam tamam kar doonga) ➢ That thereafter the accused counted upto three and took out a big knife from the right side of his pant and inflicted an injury on the left side chest of Suraj.

➢ That Om Prakash took out a half brick lying there and threw it on the accused due to which, the accused fled away from the spot.

➢ That an alarm was raised on which Brijesh Sangwan (PW3) came to the spot and found that both Om Prakash and Rajesh Kumar at the spot and also found that the injured had expired at the spot.

➢ That Om Prakash told Brijesh Sangwan that the deceased was his bhanja / nephew on which Brijesh Sangwan made PCR Call at 100 number and also at 102 number for Ambulance. ➢ That due to heavy traffic after about 15­20 minutes the PCR van reached the spot and rushed the injured Suraj to SGM hospital where he was declared brought dead. ➢ That the PCR officials thereafter communicated this information to Head Quarters.

➢ That the local police first reached the spot and thereafter hospital and recorded the statement of Om Prakash wherein he had specifically named the accused Rakesh @ Toni. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 78 ➢ That on the basis of the statement of Om Prakash the present FIR was got registered.

➢ That on 28.11.2010 on the basis of a secret information the accused Rakesh @ Toni was arrested from pethewali gali near G Block Park, Sultan Puri at about 12:00­1:00 AM. ➢ That the accused had tried to run away on seeing the police party but he was apprehended after jumping the wall of the park.

➢ That a knife was recovered from the back packet of the pants of the accused which knife was converted into a pullanda and seized in the presence of Om Prakash.

➢ That the accused was wearing the same clothes which he was wearing at the time of his arrest and hence the said clothes were also taken in to possession.

(75) The medical evidence on record proves that the cause of death was hemorrhage and shock consequent to penetrating injury to the chest via injury no.1 caused by single edged sharp stabbing weapon which was possible by the knife recovered from the possession of the accused. Further, the forensic evidence on record is compatible to the prosecution case that the accused Rakesh @ Toni had inflicted injures upon the deceased with the weapon of offence. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 79 (76) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (77) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.

(78) In view of the above, I hereby hold that the prosecution has been able to prove and establish the intent and knowledge so attributed to the accused Rakesh @ Toni under Section 300 Indian Penal Code for which the accused is hereby held guilty of the offence Section 302 St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 80 Indian Penal Code. Further, the knife so recovered from the accused Rakesh @ Toni was beyond the prescribed notified limits and hence he is also held guilty of the offence under Section 25/27 of Arms Act.

The accused is accordingly convicted.

(79) Case be listed for arguments on sentence on 22.4.2013.

Announced in the open court                             (Dr. KAMINI LAU)
Dated: 15.4.2013                                        ASJ­II(NW)/ ROHINI




St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri                 Page No. 81 
       IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION 

JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Session Case No. 29/2013 Unique Case ID No. 02404R0052782011 State Vs. Rakesh @ Toni S/o Billu Singh R/o G­130, Sultan Puri, Delhi (Convicted) FIR No. 416/2010 Under Section: 302 Indian Penal Code Police Station: Sultan Puri Date of Conviction: 15.4.2013 Arguments concluded on: 26.4.2013 Date of sentence: 27.4.2013 APPEARANCE:

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

Convict Rakesh @ Toni in Judicial Custody with Sh. Rajneesh Antil Advocate / Amicus Curiae. ORDER ON SENTENCE:

As per allegations on 27.11.2010 at about 6:45 PM at Shani Bazar Road, near Nagar Nigam Prathmik Girls School, G­Block, St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 82 Sultan Puri the accused Rakesh @ Toni committed the murder of Suraj S/o Raju by causing injuries to him on his chest with the help of a dagger which dagger was recovered from his possession on

28.11.2010.

On the basis of the testimonies of the various prosecution witnesses particularly the eye witnesses Rajesh Kumar & Om Prakash @ Titu and also on the basis of medical, forensic and circumstantial evidence on record, vide a detail judgment dated 15.4.2013 this court has held the accused Rakesh @ Toni guilty of the offence under Section 302 Indian Penal Code and Section 25/27 of Arms Act. It has been observed by this Court that it stands established that that on 27.11.10 at about 6.15 ­ 6.30 PM Om Prakash along with his cousin brother Rajesh (son of his mausi) and nephew Suraj left the house for purchasing 'All Out' bottle for mosquito killing and for purchasing a sweater for Suraj; that they all reached Shani Bazaar Chowk, Sultan Puri from where Om Prakash purchased the 'All Out' bottle and Suraj purchased an old black sweater of full sleeves and wore the same there only after which they started going towards home; that on the way at G­Block, opposite Government School near public toilet, they started smoking biri; that at about 6:45 PM when they were smoking biri the accused Rakesh @ Toni son of Billu and known to them being residing in the same locality, came; that Rakesh @ Toni asked Suraj to give a cigarette to him for smoking (chal be cigarette pila) on which Suraj St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 83 replied that he did not have cigarette and he only had biri with him; that on hearing this, accused Rakesh @ Toni abused Suraj (tav me aakar bola ki bahanchod tu janta nahi hai ki mai kaun hoon) and exhorted that he would count up to three and if he (Suraj) failed to provide cigarette to him, he would finish Suraj (Abhi kaam tamam kar doonga); that thereafter the accused counted upto three and took out a big knife from the right side of his pant and inflicted an injury on the left side chest of Suraj; that Om Prakash took out a half brick lying there and threw it on the accused due to which, the accused fled away from the spot; that an alarm was raised on which Brijesh Sangwan came to the spot and found both Om Prakash and Rajesh Kumar at the spot and also found that the injured had expired at the spot; that Om Prakash told Brijesh Sangwan that the deceased was his bhanja / nephew on which Brijesh Sangwan made PCR Call at 100 number and also at 102 number for Ambulance; that due to heavy traffic after about 15­20 minutes the PCR van reached the spot and rushed the injured Suraj to SGM hospital where he was declared brought dead; that the PCR officials thereafter communicated this information to Head Quarters; that the local police first reached the spot and thereafter hospital and recorded the statement of Om Prakash wherein he had specifically named the accused Rakesh @ Toni; that on the basis of the statement of Om Prakash the present FIR was got registered. St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 84

It also stands established that on the night of 28.11.2010 i.e. on the very next day of the incident on the basis of a secret information the accused Rakesh @ Toni was arrested from pethewali gali near G Block Park, Sultan Puri at about 12:00­1:00 AM; that the accused had tried to run away on seeing the police party but he was apprehended after jumping the wall of the park; that a knife was recovered from the back packet of the pants of the accused which knife was converted into a pullanda and seized in the presence of Om Prakash and the accused was wearing the same clothes which he was wearing at the time of his arrest and hence the said clothes were also taken into possession.

The medical evidence on record established that the cause of death was hemorrhage and shock consequent to penetrating injury to the chest via injury no.1 caused by single edged sharp stabbing weapon which was possible by the knife recovered from the possession of the accused. Further, the forensic evidence on record has also been held compatible to the prosecution that the accused Rakesh @ Toni had inflicted injures upon the deceased with the knife recovered from his possession.

Further, the intent and knowledge so attributed to the accused Rakesh @ Toni under Section 300 Indian Penal Code has been duly proved by the prosecution for which the accused has been held guilty of the offence Section 302 Indian Penal Code. Also, the knife so St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 85 recovered from the accused Rakesh @ Toni was beyond the prescribed notified limits and hence he has also been held guilty of the offence under Section 25/27 of Arms Act.

Heard arguments on the point of sentence. The convict Rakesh @ Toni is stated to be a young boy of 25 years having a family comprising of father, mother and three brothers. He is 8th class pass and was doing the work of supply of Acid / Tezaab. The convict is also involved in another case bearing FIR No. 1373/2007, PS Sultan Puri, under Section 307/34 Indian Penal Code.

Ld. Amicus Curiae for the convict has vehemently argued that the convict is a young boy and is the helping hand of his family. He has prayed that a lenient be taken against the convict.

On the other hand the Ld. Addl. PP for the State has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict. He has submitted that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life. It is also submitted that the convict is a habitual offender and is also involved in another case of attempt to murder.

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 86

I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.

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

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

(b) Where the murder involves exceptional depravity.

The mitigating circumstances which were mentioned in that judgment were:­ St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 87

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

(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;

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

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

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

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

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

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

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

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 88

                   (b)      When   the   murder   of   a   large   number   of  
                           persons of a particular caste, community, or  
                           locality is committed.
                  (c)      When   the   murder   of   an   innocent   child,   a  
                           helpless woman is committed.

Now, coming to the case in hand, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factor as pointed out by the Ld. counsel is that the convict Rakesh @ Toni is a young boy. The aggravating factors is that the murder of deceased Suraj aged about 32 years a poor labour, had been committed in cold blood without any instigation. There was no previous animosity between the convict and the victim. The convict has no value for Human Life. He has taken away the life of a young boy aged 32 years who had come to Delhi to earn his living only because the poor boy could not satisfy his (convict's) addictive urge for a cigarette. For the convict life has no value and he does not hesitate to take law in his hands on petty issues and the evidence on record suggests that the convict was habitual in snatching money from poor persons.

The Courts of law cannot ignore the conditions prevailing in the Country where the law and order situation has deteriorated and worsened in the resent past. Young persons are taking law into their hands by indiscriminate use of dangerous weapons and are spreading terror in the society and adversely affecting the social order and faith of the people in the system. There cannot be a disconnect between the St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 89 sentences so imposed by the Court on such persons involved in criminal activities and the aspirations of those who have faith in the Justice System. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref:

Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463). No leniency can be shown to persons who have no respect for life. Anyone who does not hesitate to take the law into his hands for petty issues does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced.

After having considered the submissions made before me and the various aggravating and mitigating factors, I am of a view that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. I therefore, award the following sentences to the convict Rakesh @ Toni:

1. For the offence under Sections 302 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for Life and fine for a sum of Rs.10,000/­. In default of payment of fine the convict shall further undergo Simple St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri Page No. 90 Imprisonment for a period of One Month.

2. For the offence under Sections 25/27 of Arms Act the convict is sentenced to Rigorous Imprisonment for a period of 5 (Five) years and fine to the tune of Rs.5,000/­.

In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days. Both the sentences shall run concurrently.

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

The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrants.

File be consigned to Record Room.

Announced in the open court                                        (Dr. KAMINI LAU)
Dated: 27.04.2013                                                ASJ (NW)­II: ROHINI

St. Vs. Rakesh @ Toni, FIR No. 416/10, PS Sultan Puri                          Page No. 91