Delhi District Court
Fir No. 115/2017 State vs . Suresh @ Lakhinder & Ors. Ps : Moti Nagar ... on 25 May, 2023
IN THE COURT OF SH. MANISH KHURANA:
ADDITIONAL SESSIONS JUDGE: 04, WEST DISTRICT:
TIS HAZARI COURTS : DELHI
CNR No.DLWT01-006555-2017
SC No. 440/2017
FIR No. 115/2017
PS : Moti Nagar
State
Vs.
1. Suresh @ Lakhinder
S/o Sh. Ramanand
R/o Jhuggi No. 722, Rakhi Market,
Zakhira, Moti Nagar, Delhi.
2. Rafiullah @ Salman
S/o Sh. Barkatullah
R/o Jhuggi No. 722, Rakhi Market,
Zakhira, Moti Nagar, Delhi.
(Permanent address: Village Bedari,
PS Utraula, Distt. Balrampur, U.P.)
3. Raju Ram @ Raju Biryani
S/o Sh. Pitambar Ram
R/o Jhuggi no. 258, Gali No. 7,
Machchi Market, Nehru Nagar,
Anand Parvat, Delhi.
4. Swalin
S/o Mohd. Tahir Hussain,
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 1 of 47
R/o Jhuggi No. 95/84, Shahzada Bagh,
Inderlok, Delhi
(Also at Village Brahamatpur, PS Wazir Ganj
Distt. Gonda, U.P).
5. Wasim @ Chhote
S/o Salim
R/o Jhuggi, Rakhi Market,
Zakhira, Moti Nagar, Delhi.
6. Sufiyan
S/o Mohd. Mustaq
R/o Jhuggi No. 394, Rakhi Market,
Zakhira, Delhi (Proclaimed Offender).
Date of Institution of case : 24.07.2017
Date of decision : 25.05.2023
Final order : Acquitted
JUDGMENT
1. Brief facts of the case are that on 28.03.2017 on receipt of DD No. 8A, ASI Mahavir Singh alongwith HC Lalit Kumar reached at jhuggi no. 430, Rakhi Market, Jakhira, Delhi where they came to know that the injured persons had been taken to hospital by PCR van. ASI Mahavir Singh instructed HC Lalit for remaining at the spot and thereafter, went to Acharya Bhikshu Hospital and collected the MLC No. 17377/17 of injured Pappu Gupta and MLC No. 17379/17 of injured Sunita Gupta who were referred FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 2 of 47 to higher center i.e. RML Hospital. Thereafter, ASI Mahavir Singh went to RML hospital where the concerned doctor had opined injured Sunita Gupta to be fit for statement and Pappu Gupta to be unfit for statement. In the said hospital, ASI Mahavir Singh recorded the statement of Smt. Sunita Gupta and thereafter, returned to the spot and prepared rukka and handed over the same to HC Lalit. Accordingly, HC Lalit went to PS, got the FIR registered and thereafter, HC Lalit alongwith SI Heera Lal came to the spot. Then the investigation was marked to SI Heera Lal who took photographs of the place of occurrence, recorded the statement of public persons namely Naveen, Raja Mishra, Harish Chand, Murli Mishra and Mahender u/s 161 Cr.PC and on 07.04.2017 he received an information that Pappu Gupta had expired in Jeevanmala Hospital during the treatment and accordingly offence u/s 302 IPC was added and further investigation was marked to Inspector Kuldeep. During the investigation, the accused persons were arrested and the blood stained cloths were seized by the IO and were sent to FSL and the statements of witnesses were recorded. On 05.09.2017 further investigation of this case was marked to Inspector Sheoram and he effected the arrest of accused Swalin on the basis of secret information and the investigation was completed.
2. The charge-sheet was filed before concerned Ld. MM on 17.07.2017. Ld. M.M. took the cognizance of the offence and after making compliance of provisions of Section 207 Cr.PC, Ld. MM ordered the matter to be FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 3 of 47 put up before concerned Ld. District & Sessions Judge, West, Delhi for 20.07.2017 and on 24.07.2017 the present case was assigned to the Sessions Court for trial.
3. On 20.02.2018, order on charge was passed by Ld Predecessor of this Court and charge for offences punishable u/s 147/148 IPC and u/s 452/302/323 IPC r/w sec. 149 IPC was framed against accused persons namely Suresh @ Lakhinder, Rafiullah @ Salman, Raju Ram @ Raju Biryani, Swalin and Wasim @ Chote. The charge was read over and explained to all the accused persons in vernacular and they were asked as to whether they wanted to plead guilty or claim trial. After understanding the charge, all the aforesaid accused persons pleaded not guilty and claimed trial.
4. Thereafter, the prosecution has examined 28 witnesses in total i.e. PW1 Smt. Sunita, PW2 Sh. Naveen, PW3 Sh. Raja Mishra, PW4 Sh. Murli Mishra, PW5 Sh. Harish Chand Yadav, PW6 W/ASI Babita, PW7 Sh. Mahender, PW8 ASI Azad Singh, PW9 Sh. Montu, PW10 Sh. Anand, PW11 Dr. Komal Singh, PW12 Ct. Nemi Chand, PW13 Dr. Shahid, PW14 HC Raghubir Singh, PW15 ASI Ashwani, PW16 HC Devender, PW17 HC Sachin Kumar, PW18 HC Lalit Kumar, PW19 Ct. Sandeep, PW20 Ct.
Mohd. Sarik, PW21 Sh. Mridul Gupta, PW22 ASI Rajesh Kumar, PW23 HC Ombir, PW24 Retired SI Mahavir Singh, PW25 Inspector Shyoram, PW26 Inspector Heera Lal, PW27 Inspector Kuldeep Singh and PW28 Ms. FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 4 of 47 Poonam Sharma.
5. Vide order dated 10.02.2013, prosecution evidence was closed. On 07.03.2023, statements of all the accused persons namely Suresh @ Lakhinder, Rafiullah @ Salman, Wasim @ Chhota, Raju Ram and Swalin were recorded u/s 313 Cr.P.C. In their respective statements u/s 313 Cr.P.C, all the accused persons have submitted that they are innocent and have been falsely implicated and that they have no connection with commission of offence of present case. All the accused persons opted not to lead evidence in their defence.
6. The brief of the testimonies of the prosecution witnesses examined during trial are as under:-
7. PW1 Smt. Sunita deposed that deceased Suresh was her husband. She did not remember the date & time of incident, however, she stated that on the date of incident, she was present at her home. On that day, in the night time, she heard some noise coming from outside and on hearing the same, she came out and saw crowd in the street. She searched her husband in the crowd and found him lying unconscious on the road in the street at some distance from her house. She further deposed that when she was trying to lift him from the ground, someone hit danda on her left arm. In the mean time, her younger son namely Naveen reached there and called the police on 100 number and at that time, the crowd had disbursed. Police officials reached there and took her and her husband to Aacharya Bhikshu Hospital and got them admitted there and thereafter, they were referred to Ram Manohar Lohiya Hospital. She FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 5 of 47 further deposed that from Ram Manohar Lohiya Hospital, she took her husband to Jeevan Mala Hospital and during treatment, her husband expired. She further deposed that her husband had sustained injuries on his arms, legs and head by danda and lathis but she did not know as to who had caused the same. She also did not know as to who had caused her injury on her left arm. Police officials recorded her statement but she did not remember as to whether her statement was recorded in the hospital, at the spot or in the PS.
8. PW1 was allegedly cross examined by Ld. Addl. PP for the State as she was allegedly resiling from her earlier statement made before the police. During cross- examination by Ld. Addl. PP for the state, she denied that she had given her statement Ex.PW1/A to the IO of this case voluntarily. She could not say if the date of incident was 27/28.03.2013. She also denied that on the above said date at about 01:00 mid night, while she alongwith her family members were sleeping in the house, she heard some noise coming from the door and on this, she got woke up her husband Pappu Gupta @ Suresh and her husband asked as to who is outside the door and on this, they heard abusing as well as voice of threat i.e. darwaja kholo phir batatey hai and in the mean time, accused Lakhvinder @ Suresh, Swalin and Salman, who are previously well known to her, broken the door and entered into their house alongwith their one-two other associates while having dandas in their hands and attacked upon her husband and started beating him with dandas and when she FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 6 of 47 tried to save him, they also attacked upon her with dandas and caused injuries to her. She further denied the suggestion that on raising alarm, her son Naveen, who was sleeping in the adjoining room, woke up and came there and raised alarm and thereafter, all the aforesaid accused persons fled away from there. She further denied the suggestion that the above said accused persons had attacked upon her and her husband with intent to kill them and entered into their house by breaking the door for the same purpose and caused them injuries. She also denied the suggestion that her statement Ex.PW1/A is her true and correct statement which was voluntarily made by her to the IO in the hospital. She also denied the suggestion that all the five accused persons were the same persons who had caused injuries to her and her husband with dandas with intent to kill them and entered into their house while breaking the door of their house. PW1 further denied the suggestion that on 19.04.2017, she had visited the PS Moti Nagar where she identified the accused Suresh @ Lakhinder and Salman who alongwith his other co-accused persons namely Swalin, Sufiyan, Raju, Nepali and Chotey committed the incident of this case and caused death of her husband while causing injuries to him with dandas.
9. PW1 was not cross examined on behalf of accused persons despite opportunity given.
10.PW-2 Sh. Naveen deposed that deceased Suresh was his father. He further deposed that he did not remember the date of incident, however, on the date of incident, in the night time, he woke up for urinal and found that main door FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 7 of 47 of his house was opened and his parents were not in the house. He went out from the house and found his parents lying on the road near the house. Hence, he called the police on 100 number. He further deposed that police arrived there and took his parents to Aacharya Bhikshu Hospital and thereafter, to RML Hospital for treatment. He further deposed that later on police met him and made inquiry from him. He stated that he did not see the incident and he did not know as to who had caused injuries to his parents.
11.PW2 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW2 stated that he did not give any statement to the IO in this case and denied the suggestion that he had given his statement Ex.PW2/A to the IO of this case voluntarily. PW2 could not say if the incident had taken place on the intervening night of 27/28.03.2013. He denied the suggestion that on the said night, he was present in his house and sleeping and in the mid night at about 01:00 am, he heard some noise coming from the door and on this, his mother woke up his father and his father asked as to who is outside the door and in the mean time, accused Lakhvinder @ Suresh, Swalin, Salman, Chotey, Sufian and Nepali @ Dai broke the door and entered into their house while having dandas in their hands and attacked upon his father and started beating his father with dandas and when his mother tried to save him, they also attacked upon his mother with dandas and caused injuries to her. He also FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 8 of 47 denied the suggestion that on raising alarm by his mother, he went there and also raised alarm and thereafter, all the accused persons fled away from there alongwith dandas. He further denied the suggestion that the above said accused persons had attacked upon his parents with intent to kill them and entered into their house by breaking the door for the same purpose and caused them injuries. PW2 further denied the suggestion that his statement Ex.PW2/A is his true and correct statement which was voluntarily made by him to the IO. He further denied the suggestion that on 19.04.2017, he had visited the PS Moti Nagar where he identified the accused Suresh @ Lakhinder and Salman who alongwith other co-accused persons namely Swalin, Sufiyan, Raju, Nepali and Chotey caused injuries to his parents and caused death of his father.
12.PW2 was also not cross examined on behalf of accused persons despite opportunity given.
13.PW3 Raja Mishra deposed that he was doing a private job.
He did not remember the date of incident, however, he stated that on the day of incident in the mid night, he heard noise and came out from his house and found his neighbour namely Suresh @ Pappu lying on the road in injured condition and his wife and son were sitting near him. He further deposed that both were weeping and on asking, they replied that some unknown persons had caused injuries to Suresh @ Pappu and fled away from there. After some time, police arrived there and took Suresh @ Pappu to hospital.
14.PW3 was cross examined by Ld. Addl. PP for the state as FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 9 of 47 he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the State, PW3 stated that his statement was not recorded by the police. He admitted that the date of incident was the intervening night of 27/28.03.2017. He denied the suggestion that on the said night at about 12:30 am, he was present in the street near the house of his known person or that in the meantime, accused persons namely Suresh @ Lakhvinder, Salman, Chotey, Sufian, Nepali @ Dai, Swalin and Raju Biryani, who were well known to him as they were known criminals of area, were passing from there and on seeing him there, accused Swalin demanded bottle of Whisky from him but he declined for the same as those were the days of Navratras and on this accused Swalin started abusing him and gave him punch blows and stated "hamse jaban ladata hai" and thereafter accused Swalin and his co-accused persons brought dandas from nearby and started beating him with dandas or that he got rescued by one Pappu from them and thereafter, he left from there or that thereafter all the above said accused persons went to the house of Pappu and entered into his house after breaking his door gave beatings to Pappu and his wife namely Sunita and thereafter, they were taken to Aacharya Bhikshu Hospital.
15.He admitted that he had gone to Aacharya Bhikshu Hospital where he got treatment and his MLC was prepared. He denied the suggestion that the accused persons are the same persons who had beaten him and caused injuries to him with lathis and dandas and punch FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 10 of 47 blows. He also denied the suggestion that accused persons had beaten him as well as Sunita and Pappu Gupta and caused the death of Pappu Gupta.
16.PW3 was also not cross examined on behalf of accused persons despite opportunity given.
17.PW4 Sh. Murli Mishra deposed that he did not remember the date of incident of this case and he was not present at the spot at the time of incident. He further deposed that he did not know anything else about this case.
18.PW4 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW4 stated that his statement was not recorded by the police. He denied the suggestion that on the intervening night of 27/28.03.2017, he was present at his home and on hearing the noise, he came out and found that the accused persons namely Lakhinder, Salman, Swalin, Sufian, Chotey, Nepali @ Dai and Raju Biryani were coming out from the house of Pappu Gupta while having dandas in their hands and abusing and left from there by stating "agar kisi ne muh khola to sabak sikha daingey" or that thereafter, he went to the house of Pappu Gupta and found that Pappu Gupta and his wife were in injured condition or that they told PW4 that they were beaten by the above said accused persons and caused them injury. He further denied the suggestion that the accused persons are the same persons who had beaten Pappu Gupta and his wife Sunita with lathis and dandas and caused them injuries and caused death of Pappu Gupta.
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 11 of 47
19.PW4 was not cross examined on behalf of accused persons despite opportunity given.
20.PW5 Sh. Haris Chand Yadav deposed that he did not know anything about this case.
21.PW5 was also cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the State, PW5 stated that his statement was not recorded in this case. He denied the suggestion that on the intervening night of 27/28.03.2017, he was present in his Jhuggi No.B-82, Rakhi Market, Jakhira, Moti Nagar, Delhi and on hearing the noise, he came out in the street and found that the accused persons namely Lakhinder, Salman, Swalin, Sufiyan, Chotey, Nepali @ Dai and Raju Biryani were coming out from the house of Pappu Gupta while having dandas in their hands and abusing by stating "agar kisi ne muh khola to sabak sikha dengey". He also denied the suggestion that thereafter he went to the house of Pappu Gupta and found that Pappu Gupta and his wife were in injured condition and they both told him that accused Lakhvinder and his above said associates had caused them injuries with dandas. He further denied the suggestion that accused persons are the same persons who were seen by him while coming out from the house of Pappu Gupta while having dandas in their hands and they had threatened them by stating "agar kisi ne muh khola to sabak sikha dengey".
22.PW5 was also not cross examined on behalf of accused persons despite opportunity given.
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 12 of 47
23.PW6 W/ASI Babita deposed that on 28.03.2017, she was deputed as DO from 08:00 am to 04:00 pm. At about 09:00 am, on receipt of rukka from H. Ct. Lalit sent by ASI Mahavir Tyagi, she got recorded FIR Ex.PW6/A through computer operator and she made endorsement Ex.PW6/B on rukka. She also issued certificate under Section 65B of Indian Evidence Act Ex.PW6/C. She also brought the original record of DD No.8A dated 28.03.2017 Ex.PW6/D (OSR) which was recorded at about 01:20 am on the basis of message received from Wireless Operator regarding quarrel and stabbing at Jhuggi No.430, Rakhi Market, Rama Road, Jakhira.
24.PW6 was also not cross examined on behalf of accused persons despite opportunity given.
25.PW7 Sh. Mahender deposed that he did not remember the date of incident, however, on that day in the night time, he was sleeping in his jhuggi and on hearing the noise, he came out and saw there was crowd and some public persons were abusing and quarreling. He remained there for about 15 to 20 minutes and thereafter, he went to his jhuggi. He further deposed that he did not see the incident of this case and he did not know the assailants. He further deposed that on the next day morning, he came to know that some persons had caused injuries to one Pappu Gupta and his wife.
26.PW7 was also cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state, PW7 stated that his statement was FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 13 of 47 not recorded in this case. He denied the suggestion that on the intervening night of 27/28.03.2017, he was sleeping in his jhuggi and on hearing the noise, he came out in the street and found that the accused persons namely Lakhinder, Salman, Swalin, Sufiyan, Chotey, Nepali @ Dai and Raju Biryani were coming out from the house of Pappu Gupta while having dandas in their hands and abusing by stating "agar kisi ne muh khola to sabak sikha dengey". He also denied the suggestion that he went to the house of Pappu Gupta and found that Pappu Gupta and his wife were in injured condition and they both told PW7 that accused Lakhvinder and his above said associates had caused them injuries with dandas. He further denied the suggestion that the accused persons are the same persons who were seen by him while coming out from the house of Pappu Gupta having dandas in their hands and had threatened them by stating "agar kisi ne muh khola to sabak sikha dengey".
27.PW7 was also not cross examined on behalf of accused persons despite opportunity given.
28.PW8 ASI Azad Singh deposed that on the intervening night of 27/28.03.2017, he was posted as Incharge on PCR Van No.Power-18 and was on duty from 08:00 pm to 08:00 am. At about 01:00 am, on receipt of call regarding quarrel, he reached the spot i.e. at Jhuggi No.430, Rakhi Market, Jakhira, Delhi where Sunita and Pappu met in injured condition. They took them to Aacharya Bhikshu Hospital and got him admitted there. He further deposed that on the way, injured Pappu had stated that accused FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 14 of 47 persons namely Lakinder, Salman, Swalin, Sufiyan, Nepali, Raju and Chotey had beaten them after entering into their house having lathis and dandas in their hands.
29.PW8 was also not cross examined on behalf of accused persons despite opportunity given.
30.PW9 Sh. Montu deposed that on 07.04.2017, he had identified the dead body of his father late Sh. Suresh Gupta @ Pappu Gupta in Mortuary, DDU Hospital, Delhi vide his statement Ex.PW9/A. He further deposed that after the postmortem, he and his brother Anand had also received the dead body of his father vide receipt Ex.PW9/B.
31.PW9 was also not cross examined on behalf of accused persons despite opportunity given.
32.PW10 Sh. Anand deposed that on 07.04.2017, he had identified the dead body of his father late Sh. Suresh Gupta @ Pappu Gupta in Mortuary, DDU Hospital, Delhi vide statement Ex.PW10/A and after the postmortem, he and his brother Montu had also received the dead body of their father vide receipt Ex.PW10/B.
33.This witness was also not cross examined on behalf of accused persons despite opportunity given.
34.PW11 Dr. Komal Singh deposed that on 07.04.2014 from 3.00 pm to 4.00 pm he conducted postmortem on the body of Suresh Gupta @ Pappu Gupta son of Sh. Vasudev Gupta, aged about 45 years male vide postmortem report No. 489/2017 Ex.PW11/A. He further deposed that there was alleged history that on 28.03.2017 at 1.45AM the deceased was brought to Acharya Bikshu Government Hospital in an unconscious state and then he was referred FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 15 of 47 to Jeevan Mala Hospital and he succumbed to injuries on 07.04.2017 at 2.00 AM. He further deposed that the deceased had sustained multiple (9) external injuries. The time since death was consistent to time of hospital death as mentioned in death summary and the cause of death was due to septicemia secondary to the multiple injuries caused by blunt impacts during scuffle. He further deposed that after the postmortem, he handed over two parcels to IO having the seal of PM DDUH.
35.This witness was also not cross examined on behalf of accused persons despite opportunity given.
36.PW12 Ct. Nemi Chand deposed that on 25.04.2017, he received three sealed parcels, among them, one was having the seal of KSY and other were having the seal of PMDDUH alongwith two sample seals or FSL from MHC(M) to deposit the same in the office of FSL, Rohini but same could not be deposited in the absence of MLC and PM report, therefore, he again re-deposited the same with MHC(M) in the Malkhana. He further deposed that so long as the parcels remained in his custody, those were not tempered with in any manner and remained intact.
37.This witness was also not cross examined on behalf of accused persons despite opportunity given.
38.PW13 Dr. Shahid, SR Casualty, Acharya Bhikshu Hospital deposed that on 28.03.2017 at about 1.45 AM, he medically examined the patient Pappu Gupta S/o Sh. Vasudev 45 years male vide MLC No. 17377 Ex.PW13/A. He further deposed that as per the MLC, the patient had sustained multiple injuries as follows:
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 16 of 47 a. Laceration wound on right frontal region approximate size 6x1 cm.
b. Laceration wound on right eye brow size 2x0.5 cm.
c. Laceration wound on upper lip size 3x0.5 cm,
d. Multiple bruise on abdomen and chest
e. Multiple bruise with swelling on right arm and
forearm with hand
f. Multiple bruise with swelling on left arm with
puncture wound on left elbow swelling with tenderness present on left forearm and left hand g. Multiple bruise on both thigh and legs h. avalegen (teeth coming out of mouth after injury) of multiple tooth.
39.PW13 further deposed that after treatment patient was referred to SR general surgery, SR Ortho, Dental and ENT reference to higher centre for further treatment. He further deposed that on 28.03.2017, at about 1.55 pm, he also examined patient Sunita vide MLC No. 17379 Ex.PW13/B with alleged history of physical assault and the patient had sustained fracture injury (grievous) as per record. He further deposed that he also made his endorsement on the said MLC at portion X regarding the opinion and after examination, the patient was referred to Ortho Department for further management. PW13 further stated that on the same day, at about 4.30 am he had also examined patient Raja Mishra vide MLC no. 17380 Ex.PW13/C with the alleged history of physical assault and the patient had sustained three injuries with blunt object as mentioned at portion X. He further deposed that after examination, the FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 17 of 47 patient was referred to general surgery and ortho department for further management and as per record, the patient had sustained simple injury.
40.This witness was also not cross examined on behalf of accused persons despite opportunity given.
41.PW14 HC Raghubir Singh had brought the criminal record pertaining to accused Lakhvinder son of Sh. Rama Nand, R/o Jhuggi No.722, Rakhi Market, Jhakhira, Moti Nagar, Delhi running into 4 pages Ex.PW14/A, and stated that as per record, accused is involved in eight cases as detailed in the report (seven cases as noted in the report and one case FIR No. 105/2016 u/s 307/34 IPC PS Moti Nagar Ex.PW14/B).
42.PW14 witness was also not cross examined on behalf of accused persons despite opportunity given.
43.PW15 SI Ashwani deposed that on 17.04.2017, he received secret information from the secret informer that the accused persons who are wanted in this case namely Lakhvinder and Salman would come at Rajdhani Vatika, Vikas Nagar, Uttam Nagar, Delhi. He conveyed that information to his senior officers and as per their directions, he formed raiding party comprising of SI Neeraj, SI Narender, ASI Krishan Kumar, HC Devender, Ct. Sandeep alongwith secret informer and reached at Rajdhani Vatika, Vikas Nagar, Uttam Nagar, Delhi where, at the pointing out of secret informer, they apprehended both the above named persons who were coming from the side of Vikas Nagar towards Rajdhani Vatika at about 11.30 PM. He further deposed that he interrogated them FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 18 of 47 and on confessing their guilt and their involvement in the present case, he arrested both the accused persons u/s 41.1(a & b) Cr.PC vide their arrest memos Ex.PW15/A and Ex.PW15/B respectively. He also conducted their personal search vide memos Ex.PW15/C and Ex.PW15/D respectively and also recorded their disclosure statements Ex.PW15/E and Ex.PW15/F respectively. PW15 further deposed that he also prepared kalandara u/s 41.1(a & b) Cr.PC Ex.PW15/G. Thereafter they brought both the accused persons to their office and also got lodged DD No.45, 46 & 47 Ex.PW15/H, Ex.PW15/I and Ex.PW15/J respectively. He further deposed that he also got medically examined both the accused persons from BSA Hospital and intimated the DO of PS Moti Nagar vide DD No.47 Ex.PW15/J. He further deposed that on next day, he produced both the accused persons before the Court with kalandara. The IO of the present case reached there and sought the permission of the Court to interrogate both the accused persons and arrested them.
44.During cross-examination on behalf of accused persons, PW15 stated that he alongwith police staff reached at Rajdhani Vatika at about 10.45 PM and public persons were coming and going at that time near Rajdhani Vatika. He also stated that there was a street light at the said place. He further stated that there was distance of about 100 yards between the secret informer and the accused persons while he identified them.
45.PW16 HC Devender deposed that on 17.04.2017, he was present in his office and on receipt of secret information FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 19 of 47 through SI Ashwani, he alongwith SI Ashwani, SI Neeraj, SI Narender Rathi, ASI Rajender, ASI Krishan, ASI Mandeep, ASI Vijender and Ct. Sandeep reached at Rajdhani Vatika, Vikas Nagar, Uttam Nagar, Delhi where they took their position at different places near said place as per the instructions of SI Ashwani alongwith secret informer. He further deposed that at about 11.30 pm, two boys came there from the side of Vikas Nagar and at the instance of secret information and on the direction of SI Ashwani, they apprehended both the boys and on interrogation, their names were revealed as Salman @ Rafiulla and Lakhender @ Suresh. PW16 HC Devender further deposed that both the said boys confessed their guilt and confessed that they committed the murder of one Pappu Gupta by giving beating to him by lathi and dandas. He further deposed that both were arrested in kalandra u/s 41.1 (a and b) vide their arrest memos Ex.PW15/B and Ex.PW15/A respectively and their personal search were conducted vide memo Ex.PW15/C and Ex.PW15/D respectively. He also deposed that disclosure statements of both the accused persons were recorded vide memo Ex.PW15/E and Ex.PW15/F respectively. He further deposed that thereafter they brought both the accused in their office. SI Ashwani informed Insp. Incharge of Special Cell about abovesaid facts.
46.During cross-examination on behalf of accused Salman, Raju and Suresh @ Lakhinder, PW16 stated that they left the office in vehicle no. DL-1CJ-7367 ie Tavera and IO had made the departure entry while leaving the office but FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 20 of 47 he did not remember its number. He also stated that they were in civil dress/ uniform. PW16 did not know if the IO had informed the family members of accused persons regarding their arrest. He again said that father of accused Lakhender was informed regarding his arrest and one family member of accused Salman was also informed by the IO.
47.PW16 was not cross examined on behalf of remaining accused persons despite opportunity given.
48.PW17 HC Sachin Kumar has deposed that on 18.04.2017, he alongwith SI Hira and IO Insp. Kuldeep Singh went to concerned court of PS Moti Nagar, Tis Hazari Courts where the official of the Spl. Cell had produced accused persons Lakhender and Salman in the court and IO with the permission of court had interrogated both the accused persons vide interrogation report Ex.PW17/A and PW17/B respectively. IO obtained four days PC remand of both the accused persons and thereafter, they brought the accused persons in PS Moti Nagar. PW17 further deposed that during the PC remand i.e. on 19.04.2017, he alongwith Insp. Kuldeep, Ct. Sarik and both the accused persons reached at Zakhira near jhuggies for recovery of the weapon of offence but despite best efforts nothing could be recovered. Thereafter, they returned to PS.
49.PW17 was not cross examined on behalf of accused persons despite opportunity given.
50.PW18 HC Lalit Kumar deposed that on 28.03.2017, on receipt of DD No.8A regarding quarrel at Jhuggi No.430, Rakhi Market, Jakhira, he alongwith ASI Mahavir Singh FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 21 of 47 went to the spot where they came to know that the persons with whom quarrel had taken place, had been taken to hospital by PCR van. He further deposed that ASI Mahavir instructed him to stay at the spot and left for the hospital. On the same day at around 08:00 am, ASI Mahavir Singh came back at the spot and prepared the tehrir and handed over the same to him for registration of FIR. PW18 accordingly went to PS and handed over the tehrir to DO for registration of FIR and the same was marked to SI Heera Lal. PW18 further deposed that he alongwith SI Heera Lal returned at the spot and met with son of Pappu Gupta at the instance of whom, site plan was prepared by SI Heera Lal and thereafter, they returned to PS Moti Nagar. He further deposed that the son of Pappu Gupta told IO the names of persons who had given beatings to his father. They searched for the accused persons but the accused persons could not be found.
51.PW18 was cross examined by Ld. Addl. PP for the state as he was allegedly resiling from his earlier statement made before the police. During cross-examination by Ld. Addl. PP for the state PW18 admitted that when he returned at the spot, he met with the son of injured Sunita and admitted that name of son of Sunita was Naveen. PW18 also admitted that IO SI Heera Lal had taken the photographs of the spot with the help of his mobile phone and also recorded the statements of Sh. Hari Shankar Mishr, Murli Mishr and Mahender.
52.During cross examination on behalf of accused persons, PW18 stated that at the time when DD No.8A was marked FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 22 of 47 to IO, he and IO were present in the PS but he had not gone through the contents of said DD. He stated that they reached the spot in the mid night at around 01:00/01:30 am. PW18 admitted that the crowd was present at the spot. He also stated that ASI Mahavir Singh remained at the spot for about 15 to 20 minutes. He also stated that in his presence, IO had not recorded the statements of those persons who had informed the IO that injured had been taken to the hospital by the PCR. PW18 admitted that statement of Sunita was not recorded in his presence. He did not remember whether SI Heera Lal recorded the statement of Naveen at the spot. He did not remember whether SI Heera Lal had obtained his signatures or the signatures of Naveen at the site plan or not.
53.PW19 Ct. Sandeep deposed that on 17.04.2017, a secret information regarding the accused of the present FIR No.115/2017 PS Moti Nagar was received by SI Ashwani. Thereafter, he alongwith H. Ct. Devender and SI Ashwani went to Rajdhani Vatika, Vikas Nagar, Uttam Nagar, Delhi and as per the instructions of SI Ashwani, they took their position and started waiting for the accused persons. He further deposed that in the night, secret informer pointed out towards two persons who were coming to Rajdhani Vatika from the direction of Vikas Nagar to be the persons for whom they were waiting. PW19 further deposed that at the pointing out of secret informer, they apprehended the accused persons and after interrogation, their names were disclosed as Lakhinder and Salman, who disclosed that on 27.05.2017, they alongwith other accused had beaten FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 23 of 47 Pappu Gupta after entering his house. He further deposed that accused Lakhinder was arrested vide arrest memo Ex.PW15/A, his personal search was conducted vide personal search memo Ex.PW15/C and his disclosure statement was recorded vide Ex.PW15/E. He further deposed that accused Salman was arrested vide arrest memo Ex.PW15/B, personally searched vide memo Ex.PW15/D and his disclosure statement Ex.PW15/F was recorded.
54.During cross examination on behalf of accused persons, PW19 admitted that secret informer had not given the information in his presence to SI Ashwani. He stated that they departed from the office at about 10:00/10:30 pm in civil uniforms with weapons. He also stated that he had seen the accused persons from the distance of about 20/30 meters who were on foot. He did not remember which of the accused was caught by him and which accused was caught by another member of the raiding team. He also stated that the distance between the spot and the Rajdhani Vatika was about 30/35 meters. He further stated that the guard or any staff of Rajdhani Vatika was not asked to join the investigation. He did not remember which family member of the accused was informed regarding their arrest. He further stated that they left the spot at about 02:00 am in the night. PW19 also stated that the accused were kept in lock-up of office of Special Staff but could not tell whether entry in that respect in Register was done or not.
55.PW20 Ct. Mohd. Sarik deposed that on 19.04.2017, he FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 24 of 47 alongwith Insp. Kuldeep and H. Ct. Sachin had taken the accused persons namely Lakhinder and Salman to Jakhira for searching the weapon of offence i.e. danda but same could not be recovered and they all came back to the PS.
56.This witness was not cross examined on behalf of accused persons despite opportunity given.
57.PW21 Sh. Mridul Gupta, Ld. MM deposed that on 22.04.2017, IO of case FIR no. 115/2017, u/s 302/307/452/147/148/149/34 IPC of PS Moti Nagar had moved an application for TIP of accused Raju Ram before Ld. MM Sh. Gajender Singh Nagar and being the first Link, same was marked to him for conducting the TIP but accused refused to participate in the TIP proceedings Ex.PW21/A. PW21 also exhibited the application of IO for fixing the TIP proceedings as Ex. PW21/B and application of IO for supplying the copy as Ex.PW21/C.
58.This witness was not cross examined on behalf of accused persons despite opportunity given.
59.PW22 ASI Rajesh Kumar deposed that on 11.11.2017, SI Heera Lal received secret information from the informer about the accused namely Wasim @ Chhote that he is moving around the Machhi Market at Zakhira. He further deposed that on receipt of the same, he along-with SI Heera Lal and informer reached there, where son of the deceased namely Naveen met and joined them and thereafter, at about 8.00 pm, Naveen pointed out accused Wasim who was moving in the Machhi Market. They apprehended accused Wasim and IO/ SI Heera Lal interrogated him and on confessing his guilt and FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 25 of 47 involvement in the present case, IO arrested him vide memo Ex.PW22/A, conducted his personal search vide memo Ex.PW22/B and also recorded his disclosure statement Ex.PW22/C. PW22 further deposed that thereafter, accused Wasim led them at Railway lines where he pointed out the place where he had thrown the danda i.e. weapon of offence but same could not be recovered despite best efforts. Thereafter, accused led them at the place of occurrence and pointed out the same vide pointing out memo ExPW22/D. PW22 further deposed that thereafter they searched accused Sofiyan but he could not be traced out. Thereafter, they returned to PS and got accused medically examined from Acharya Bhikshu hospital.
60.This witness was not cross examined on behalf of accused persons despite opportunity given.
61.PW23 HC Ombir deposed that on 05.09.2017, he along-
with SI Heera Lal and IO/Insp. Shyoram left the PS for search of accused Swalin and on the basis of secret information, reached at Machhi Market, Zakhira, Delhi where informer also met. Thereafter, in the meantime, the son of complainant namely Naveen also met them there who also joined them. He further deposed that at about 7.00 pm, Naveen as well as secret informer pointed out towards accused Swalin who was standing in Machhi market and on this, they apprehended him. IO interrogated him and on confessing his guilt and involvement in the present case IO arrested him vide memo Ex.PW23/A, conducted his personal search vide memo Ex.PW23/B and FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 26 of 47 also recorded his disclosure statement vide memo Ex.PW23/C. PW23 further deposed that IO again interrogated accused Swalin in PS and thereafter, accused led them at spot i.e. jhuggi no. 430, Zakhira and pointed the same vide pointing out memo Ex.PW23/D and accused also led at T-point near the jhuggi where he along-with other accused persons caused injury to deceased. He further deposed that thereafter accused also led them to the place where he had thrown the danda i.e. at Railway lines but same could not be recovered despite best efforts. Thereafter, they returned to PS and accused was got medically examined from hospital.
62.During cross examination on behalf of accused Swalin, PW23 denied the suggestion that IO had taken the signatures of accused Swalin on some blank papers or that all the papers pertaining to this FIR were prepared at PS.
63.No cross examination of this witness was conducted on behalf of other accused persons despite opportunity given.
64.PW24 Retired SI Mahavir Singh deposed that on 28.03.2017 while he was on night emergency duty from 8 PM to 8 AM alongwith HC Lalit, DD No. 8A regarding quarrel at jhuggi no. 430, Rakhi Market, Jakhira was marked to him. Accordingly, he alongwith HC Lalit went to the place of occurrence where they came to know that the persons with whom quarrel had taken place had been taken to hospital by PCR van. He instructed HC Lalit for remaining at the spot and thereafter, went to Acharya Bhikshu Hospital. PW24 further deposed that in the said hospital, he collected the MLCs of two injured persons FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 27 of 47 namely Pappu Gupta and Sunita Gupta, who were referred to higher center i.e. RML Hospital. Accordingly, he went to RML hospital. He further deposed that he moved an application for recording the statement of injured persons and the concerned doctor had opined injured Sunita Gupta to be fit for statement and Pappu Gupta to be unfit for statement. In the said hospital, he had recorded the statement made by Smt. Sunita Gupta Ex.PW1/A. PW24 further deposed that thereafter, he returned to the spot and prepared rukka Ex.PW24/A and handed over the same to HC Lalit. Accordingly, HC Lalit went to PS, got the FIR registered and thereafter, HC Lalit alongwith SI Heera Lal came to the spot. He further deposed that as per the orders of SHO, the investigation was marked to SI Heera Lal who took photographs of the place of occurrence from his mobile camera. He further deposed that in his presence, SI Heera Lal also recorded statements of 2 to 3 public persons.
65.During cross-examination on behalf of accused persons, PW24 denied all the suggestions put to him.
66.PW25 Inspector Shyoram deposed that on 05.09.2017, further investigation of the present case was marked to him and on that day, public witnesses Naveen, SI Heera Lal and HC Ombir had joined the investigation with him. He further deposed that while they were in investigation, he had received a secret information that accused Swalin could be met at Machhi market, Jakhira. Accordingly, they went to the place of information and at the instance of informer as well as on the identification of public witness FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 28 of 47 Naveen, they apprehended accused Swalin. PW25 Inspector Shyoram further deposed that he had effected the arrest of accused Swalin vide arrest memo Ex.PW23/A, conducted his personal search vide memo Ex.PW23/B and made disclosure statement Ex.PW23/C and also pointed out the place of commission of offence vide memo Ex.PW23/D. He further deposed that he had recorded the statement of witnesses and upon completion of investigation, he had prepared supplementary charge-sheet in respect of accused Swalin, Wasim and Sufiyan.
67.During cross examination on behalf of accused Swalin, PW25 denied the suggestion that accused Swalin was not arrested in the manner as deposed by him or that he had not made any such disclosure statement. He also denied that he had obtained the signature of accused Swalin on blank documents or converted the said documents into the disclosure of accused Swalin subject to his convenience.
68.No cross-examination of PW25 was conducted on behalf of remaining accused persons despite opportunity given.
69.PW26 Inspector Heera Lal deposed that on 28.03.2017, after the registration of FIR, the investigation of the present case was marked to him and Duty officer handed over him copy of FIR and original rukka. Thereafter, he accompanied HC Lalit to the place of occurrence i.e. Jhuggi no. 430, Rakhi Market, Jakhira and at the spot, he met ASI Mahavir Singh who had handed over him the MLCs of injured persons. He further deposed that he had inspected the place of occurrence and prepared rough site plan Ex.PW26/A and also took photographs of place of FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 29 of 47 occurrence in his mobile camera. He further deposed that he found one voter I card in the name of Lakhinder Kumar i.e. laminated photocopy and seized the same vide seizure memo Ex.PW26/B. He had also met public witness Naveen, Raja Mishra, Hari Shankar Yadav, Murli Mishra and Mahender at the spot and recorded their statements u/s 161 Cr.P.C. PW26 further deposed that on 07.04.2017, he received information that Pappu Gupta had expired in Jeevan Mala hospital during treatment and accordingly, he went to the said hospital and got the body of Pappu Gupta shifted to the mortuary of DDU hospital. He further deposed that offence u/s 302 IPC was added in the investigation and accordingly further investigation was marked to Inspector Kuldeep. PW26 further deposed that on 18.04.2017, he again joined investigation of the present case with Insp. Kuldeep Singh and HC Sachin. On that day, accused Lakhinder and Salman @ Rafiullah had surrendered themselves before Ld. MM. Accordingly, Inspector Kuldeep moved an application for interrogation and after interrogation, effected the arrest of accused Lakhinder and Salman vide arrest memo Ex.PW26/C & Ex.PW26/D. He further deposed that IO had obtained the Police custody remand of aforesaid accused persons and during PC remand, accused Lakhinder led them to his jhuggi no. 722, Rakhi Market, Jakhira and from inside the bed, he got recovered one white polythene which upon checking found containing one check shirt of dark blue and light blue colour which was found to be blood stained. IO had kept FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 30 of 47 the said shirt alongwith polythene in a cloth pullanda and said pullanda was sealed with the seal of KSY and was seized vide seizure memo Ex.PW26/E.
70.During cross examination on behalf of accused persons, PW26 denied the suggestion that he had not conducted or joined any such investigation. He also denied the suggestion that no such shirt was recovered at the instance of accused Lakhinder. PW26 admitted that no public witness is a signatory to the said seizure memo of shirt. He also admitted that said recovery proceedings were neither videographed nor photographed.
71.PW27 Inspector Kuldeep Singh deposed that on 18.04.2017, further investigation of the present case was marked to him and SI Heera Lal, HC Sachin and HC Vinod joined investigation of the present case with him. He further deposed that on that day, accused Lakhwinder and Salman @ Rafiullah were produced before the court of Ld. MM. by SI Ashwini, Special Cell. Accordingly, he moved an application for interrogation and interrogated both the accused persons vide interrogation Report Ex.PW17/A and Ex.PW17/B and after interrogation, effected the arrest of accused Lakhinder and Salman vide memo Ex.PW26/C and Ex.PW26/D respectively. PW27 further deposed that he had obtained four days Police custody remand of aforesaid accused persons. During PC remand, accused Suresh @ Lakhwinder and Salman @ Rafiullah made disclosure statements Ex.PW27/A and Ex.PW27/B. He further deposed that during PC remand accused Suresh @ Lakhwinder led them to his jhuggi no.
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 31 of 47 722, Rakhi Market, Zakhira and from inside the bed, he got recovered one white polythene which upon checking found containing one check shirt of dark blue and light blue colour which was found to be blood stained. PW27 had kept the said shirt alongwith polythene in a cloth pullanda and said pullanda was sealed with the seal of KSY and was seized vide seizure memo Ex.PW26/E. He further deposed that while they were returning to PS Moti Nagar both the accused persons Suresh @ Lakhwinder and Salman @ Rafiullah pointed out towards accused Raju Ram and at their pointing out accused Raju Ram was apprehended from near bus stand Zakhira roundabout. PW27 interrogated accused Raju Ram and after interrogation effected his arrest vide Arrest Memo Ex.PW27/C and conducted his personal search vide Memo Ex.PW27/D and recorded his disclosure statement Ex.PW27/E. He stated that thereafter, accused Raju Ram was produced before Ld. M.M. in muffled face and he moved an application for judicial TIP of accused Raju Ram but accused Raju Ram refused to participate in judicial TIP. He stated that he had collected the copy of said TIP proceedings. He further deposed that on 25.04.2017, the said seized shirt was sent to FSL but same could not be deposited. On 25.04.2017 itself the investigation of the present case was marked to some other police official. PW27 identified the said shirt Ex.P27/1 recovered at the instance of accused Lakhwinder @ Suresh.
72.During cross-examination on behalf of accused persons, PW27 denied the suggestion that he had not recorded the FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 32 of 47 statements of any such witnesses or that no such shirt was recovered at the instance of accused Lakhwinder. However, he admitted that no public witness is a signatory to the said seizure memo of shirt. He also admitted that the said recovery proceedings were neither videographed nor photographed or that no crime team was called at the place of recovery of said shirt. He also stated that he had not collected any documentary proof to establish that the house from where the said shirt was recovered in fact belonged to accused Lakhwinder. PW27 admitted that till the recovery of shirt Ex.P27/1, the remaining exhibits of the present case were lying in Malkhana. He denied the suggestion that he had obtained the signatures of accused persons on blank documents or converted the said blank documents into their respective disclosure statements.
73.PW28 Ms. Poonam Sharma Assistant Director (Biology), FSL deposed that vide letter no. 2334 dated 02.08.2017, their office received three sealed parcels in connection with case FIR No. 115/2017 PS Moti Nagar and the said parcels were marked to her. Out of the said three parcels, one was sealed cloth parcel, one was sealed envelope and one was sealed polythene bag. Seals over the said parcels were found intact and tallied as per the specimen seals as per forwarding letter. She stated that she had opened the said parcels and the material contained therein were marked as Exhibit 1a, 1b of parcel no.1, Exhibit 2 of parcel no.2 and Exhibit A of parcel no. A and she had examined the said exhibits. She further deposed that the source of exhibits 1a, 1b, 2 and A were subjected to DNA isolation.
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 33 of 47 Identifiler plus PCR amplification kit was used. Gene- Mapper ID-X software was used for STR analysis and DNA profiling in each of the Exhibits. Upon examination, the alleles from the source of Exhibit 2 i.e. blood of deceased in gauze piece were accounted in the alleles from the source of Exhibit 1a i.e. shirt of deceased and 1b pants of deceased. DNA profile of male origin was generated from the source of Exhibit A i.e. shirt of deceased and was preserved in the laboratory for future reference. She stated that after examination, she prepared FSL report Ex.PW28/A and after examination the Case Exhibits/Remnants of Exhibits were sealed with the seal of P.Sh FSL DELHI.
74.This witness was not cross examined on behalf of accused persons despite opportunity given.
FINDINGS & OBSERVATIONS:
75.I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. My findings are as under:
Ocular Evidence:
76.Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness.
77.The case of the prosecution is mainly based upon the testimonies of PW1 Smt. Sunita, PW2 Sh. Naveen, PW3 Sh. Raja Mishra, PW4 Murli Mishra, PW5 Harish Chand Yadav and PW7 Mahender.
78.Since the prosecution is placing its heavy reliance on the FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 34 of 47 testimonies of PW1 Smt. Sunita, PW2 Sh. Naveen and PW3 Sh. Raja Mishra, it is therefore necessary for this Court to first determine whether their testimonies are reliable and truthful and whether the said witnesses have supported the case of the prosecution or otherwise.
79.It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 35 of 47 'credit' of the witnesses; their performance in the witness- box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
80.Applying the settled principles of law to the facts of the present case, coming first to the testimony of PW1 Smt. Sunita who is the wife of the deceased, it is observed that this witness has not supported the case of prosecution in any manner. She simply deposed that on the date of incident she was present at her home and in the night time, she heard some noise coming from outside and on hearing the same, she came out and saw crowd in the street and she searched her husband in the crowd and found him lying unconscious on the road in the street at some distance from her house. She further deposed that when she was trying to lift him from the ground, someone hit danda on her left arm and in the mean time, her younger son namely Naveen reached there and called the police on 100 number and at that time, the crowd had disbursed. Police officials reached there and took her and her husband to Aacharya Bhikshu Hospital and got them admitted there and thereafter, they were referred to Ram Manohar Lohiya Hospital. She further deposed that her husband had sustained injuries on his arms, legs and head by danda and lathis but she did not know as to who had caused the same. She also did not know as to who had caused her injury on her left arm.
81.The record further reveals that since PW1 Smt. Sunita has not supported the case of prosecution, she was cross FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 36 of 47 examined by Ld. Addl. PP for the State during which she denied to have made any statement Ex.PW1/A to the IO and she denied the suggestions given to her by Ld Addl. PP for the State regarding her witnessing the incident in question and she denied that the accused persons came to her house and asked for her husband Pappu Gupta or that they entered her house and started beating her husband Pappu Gupta. She categorically denied that the accused persons had attacked upon her and her husband with intent to kill them and entered into their house by breaking the door for the same purpose and caused them injuries. She also denied to have identified the accused persons on 19.04.2017 at PS Moti Nagar as the offenders.
82.Now coming to the testimony of PW2 Sh. Naveen i.e. another material witness of the prosecution, it is observed that this witness has also not supported the case of prosecution in any manner and he stated that he did not see the incident and he did not know as to who had caused injuries to his parents. PW2 was cross examined by Ld Addl. PP for the State during which he denied to have given statement Ex.PW2/A to the IO and he also denied that the accused persons came to his house or that they broke the door and entered in to his house or that they attacked upon his father and started beating him with dandas or that when his mother tried to save him, they also attacked upon his mother with dandas and caused injuries to her. He denied that the accused persons had attacked his parents with intent to kill them.
83.Now coming to the testimony of PW3 Sh. Raja Mishra, FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 37 of 47 who is also one of the material witness of the prosecution, it is observed that this witness has also not supported the case of prosecution in any manner and he deposed that on the day of incident in the mid night, he heard noise and came out from his house and found his neighbour Suresh @ Pappu lying on the road in injured condition and his wife and son were sitting near him. PW3 was cross examined by Ld Addl. PP for the State during which he denied to have made statement Ex.PW3/A before the police and he also denied that accused persons committed the incident in question or caused death of Pappu Gupta. He also denied the suggestion that the accused persons had beaten him as well as Sunita and Pappu Gupta and caused the death of Pappu Gupta.
84.Now coming to the testimony of PW4 Sh. Murli Mishra, who is also one of the material witness of the prosecution, it is observed that this witness has also not supported the case of prosecution in any manner. He simply deposed that on the date of incident, he was not present at the spot at the time of incident. PW4 was cross examined by Ld Addl. PP for the State during which he denied to have made any statement Ex.PW4/A before the IO and he also denied to have witnessed the incident or that the accused persons committed the offence or caused death of Pappu Gupta while causing injuries to him with dandas.
85.Now coming to the testimony of PW5 Sh. Haris Chand Yadav, who is also one of the material witness of the prosecution, it is observed that this witness has also not supported the case of prosecution in any manner and he FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 38 of 47 simply deposed that he did not know anything else about this case. This witness was also cross examined by Ld Addl. PP for the State during which he denied to have made any statement Ex.PW5/A before the police and he also denied that the accused persons committed the offence or caused death of Pappu Gupta while causing injuries to him with dandas.
86.Now coming to the testimony of PW7 Sh. Mahender, who is also one of the material witness of the prosecution, it is observed that this witness has also not supported the case of prosecution in any manner and he deposed that he did not see the incident and he did not know the assailants and he deposed that on the next day morning, he came to know that some persons had caused injuries to one Pappu Gupta and his wife. PW7 was also cross examined by Ld Addl. PP for the State during which he denied to have made statement Ex.PW7/A before the police. He also denied that it was accused persons who committed the offence and caused death of Pappu Gupta while causing injuries to him with dandas.
87.The overall impact of testimonies of aforesaid witnesses is that their testimonies are not helpful to the prosecution in any manner and they have not supported the case of the prosecution against the accused persons.
88.Now, let us see if there is any other evidence in the form of the testimonies of other public witnesses to connect the accused persons with commission of offence in question. It is observed that PW9 Sh. Montu is a formal witness who has only identified the dead body of his father Sh. Suresh FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 39 of 47 Gupta @ Pappu Gupta vide identification memo Ex.PW9/A and received the dead body of his father vide receipt Ex.PW9/B. PW10 Sh Anand is also a formal witness who has also identified the dead body of his father Sh. Suresh Gupta @ Pappu Gupta in the mortuary vide statement Ex.PW10/A and received the dead body of his father vide receipt Ex.PW9/B. The testimonies of the aforesaid witnesses also do not connect any of the accused persons with the commission of offence in question.
89.Now, let us see if there is any other evidence in the form of testimonies of police/official witnesses to connect the accused persons with commission of offence in question. It is observed that PW6 W/ASI Babita is duty officer who recorded FIR Ex.PW6/A and made endorsement on rukka Ex.PW6/B and also issued certificate u/s 65 B of Indian Evidence Act Ex.PW6/C and she also lodged DD No. 8A Ex.PW6/D. PW12 Ct. Nemi Chand is also a formal witness who collected three sealed parcels from MHC(M) and deposited the same at FSL. PW14 HC Raghubir Singh is also a formal witness who has brought the criminal record pertaining to accused Lakhvinder and exhibited the said record as Ex.PW14/A. PW20 Ct. Mohd. Sarik joined the investigation on 19.04.2017 and made efforts for the recovery of weapon of offence i.e. danda at the instance of accused Lakinder and Salman but in vain. PW24 Retired SI Mahavir Singh deposed that on 28.03.2017 DD No.8A was marked to him and he alongwith HC Lalit went to the place of occurrence where they came to know that injured persons had been taken to hospital by PCR Van.
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 40 of 47 Accordingly they went to hospital and collected the MLCs of two injured persons namely Pappu Gupta and Sunita Gupta and that both the said injured persons were referred to RML hospital and accordingly, they went to RML hospital. In the said hospital, the concerned doctor had opined Sunita Gupta to be fit for statement and Pappu Gupta to be unfit for statement. In the said hospital, PW24 recorded the statement of Sunita Gupta and prepared rukka Ex.PW24/A and got the FIR registered through HC Lalit. The testimonies of aforesaid witnesses also do not connect any of the accused persons with the commission of offence in question.
90.Here it is observed that during the course of trial, the prosecution has also examined the witnesses of investigation i.e. PW15 SI Ashwani, PW16 HC Devender, PW17 HC Sachin and PW19 Ct. Sandeep. As per the testimony of PW15 in his presence, accused persons namely Lakinder and Salman were arrested in a kalandara u/s 41.1 (a & b) vide arrest memos Ex.PW15/A and Ex.PW15/B. PW16 HC Devender and PW19 Ct. Sandeep have also deposed on the similar lines as deposed by PW15. PW17 HC Sachin has deposed that on 18.04.2017 after the arrest of accused Lakhinder and Salman, they were produced before the concerned court and in his presence, IO had interrogated aforesaid accused persons and obtained their four days PC remand. The aforesaid witnesses are also formal witnesses and do not connect the accused persons with commission of offence in question.
91.Further, PW18 HC Lalit Kumar is also a formal witness FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 41 of 47 who accompanied ASI Mahavir to the place of occurrence and got the FIR registered. PW22 ASI Rajesh Kumar is the witness in whose presence accused Wasim @ Chhote was arrested on the identification of Naveen vide arrest memo Ex.PW22/A and also deposed that after the arrest of accused Wasim @ Chhote, efforts were made for the search of weapon of offence i.e. danda but in vain. PW23 HC Ombir and PW25 Inspector Shyoram are the witnesses in whose presence accused Swalin was arrested on the identification of Naveen vide arrest memo Ex.PW23/A and they also deposed that after the arrest of accused Swalin, efforts were made for the search of weapon of offence i.e. danda but in vain. The aforesaid witnesses are also formal witnesses and do not connect accused persons with the commission of offence. Here it is observed that the aforesaid witnesses have deposed that they conducted the proceedings in the presence of PW2 Naveen but PW2 Naveen has not supported the case of prosecution in any manner and has nowhere deposed that the aforesaid accused persons were arrested either in his presence or on his identification and thus, in the light of the testimony of PW2 Naveen, no incriminating evidence has come on record against the accused persons.
92.PW25 Inspector Heera Lal is the investigation officer who deposed on the lines of investigation conducted by him and he deposed in respect of the memos prepared by him and has also deposed that during PC remand, accused Lakhinder led them to his jhuggi no. 722, Rani Market, Jakhira and from inside the bed, the accused Lakhinder FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 42 of 47 got recovered one white polythene containing one check shirt of dark blue and light blue colour which was found to be blood stained which he seized after sealing vide Ex.PW26/B. PW27 Inspector Kuldeep Singh has also conducted investigation of the case and exhibited the relevant memos prepared by him and he is also a witness of recovery and seizure of shirt at the instance of accused Lakhinder.
93.Now let us see if there is any scientific evidence on record to connect the accused persons with the commission of offence in question. In this regard, it is observed that during the course of trial, PW28 Ms. Poonam Sharma, Assistant Director (Biology) FSL deposed to have examined the exhibits and prepared FSL report Ex.PW28/A. During her testimony, PW28 has deposed that only three exhibits were marked to her i.e. blood of deceased in gauze piece, shirt of deceased and pants of deceased which she had examined. The record further reveals that the shirt allegedly recovered at the instance of accused Lakhinder was sent to FSL for scientific opinion/DNA examination, however, the FSL report prepared by PW28 Ex.PW28/A does not connect the aforesaid shirt with the DNA profile generated from the source of exhibits of the deceased i.e. blood of deceased in gauze piece, shirt of deceased and pant of deceased and thus, the FSL report Ex.PW28/A does not connect any of the accused persons with the commission of offence in question.
94.Further, PW21 Sh. Mridul Gupta, the then Ld MM FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 43 of 47 conducted the TIP proceedings of accused Raju Ram and exhibited the said proceedings as Ex.PW21/A. PW13 Dr. Shahid had examined patient Pappu Gupta vide MLC Ex.PW13/A and Sunita vide MLC Ex.PW13/B as well as Raja Mishra vide MLC as Ex.PW13/C. PW11 Dr. Komal Singh conducted postmortem on the body of deceased Suresh Gupta @ Pappu Gupta and exhibited the postmortem report as Ex.PW11/A. The aforesaid testimonies also do not connect any of the accused persons with the commission of offence as there is no evidence on record that the injuries were caused by the accused persons.
95.During the course of arguments, Ld Addl. PP for the State has heavily relied upon the testimony of PW8 ASI Azad Singh and it is argued that PW8 ASI Azad Singh has deposed that in the intervening night of 27/28.03.2017, he was posted as Incharge on PCR Van No.Power-18 and was on duty from 08:00 pm to 08:00 am and at about 01:00 am, on receipt of call regarding quarrel, he reached the spot i.e. at Jhuggi No.430, Rakhi Market, Jakhira, Delhi where Sunita and Pappu met in injured condition and they were taken to Aacharya Bhikshu Hospital and on the way injured Pappu had stated that accused persons namely Lakinder, Salman, Swalin, Sufiyan, Nepali, Raju and Chotey had beaten them after entering into their house having lathis and dandas in their hands.
96.PW8 was not cross examined by the accused persons and Ld. Addl. PP for the State argued that PW8 ASI Azad Singh has deposed that on the way, injured Pappu had FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 44 of 47 stated that accused persons namely Lakinder, Salman, Swalin, Sufiyan, Nepali, Raju and Chotey had beaten them after entering into their house having lathis and dandas in their hands and thus his testimony is unchallenged testimony in the form of dying declaration of deceased Pappu Gupta and must be taken into consideration in terms of provisions of Section 32 of Indian Evidence Act. Ld. Addl. PP for State has also argued that dying declaration can be the sole basis of conviction.
97.So far as the aforesaid arguments of Ld Addl. PP for State are concerned, it is pertinent to note the judgment titled as Kalawati vs State of Maharashtra, Criminal Appeal No. 267 of 2009 decided on 11.02.2009 by Hon'ble Supreme Court of India wherein it has been categorically held "that the court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and that the deceased had an opportunity to observe and identify the assailants and was in a fit condition to make a declaration. It has also been held in the said judgment that where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected".
98.There can be no dispute that dying declaration can be the sole basis of conviction, however, the law is well settled to the effect that such a dying declaration has to be proved to be wholly reliable and truthful and further the maker thereof must be in a fit condition to make it. In this regard, it is observed that as per the testimony of PW8 ASI Azad FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 45 of 47 Singh while he was taking Sunita and Pappu to hospital, on the way injured Pappu had stated that accused persons had beaten them after entering their house having lathis and dandas but testimony of PW8 has not been corroborated by the testimony of PW1 Sunita who was living in the house of the deceased alongwith him as his wife and was present there at the time of incident. PW1 Sunita has nowhere deposed that while she alongwith her husband Pappu were being taken to hospital in the same PCR van, her husband had ever made any such dying declaration. The record further reveals that the alleged incident took place during the intervening night of 27/28.03.2017 and the injureds were being taken to the hospital on the same night whereas the statement u/s 161 Cr.PC of PW8 ASI Azad Singh was recorded on 05.06.2017 i.e. after about more than two months from the date of alleged incident.
99.It is also pertinent to note that PW8 ASI Azad Singh was a police official on duty and had there been any dying declaration made by deceased Pappu Gupta in his presence, it was incumbent upon PW8 ASI Azad Singh to immediately approach the investigating officer and to make statement u/s 161 Cr.P.C in this regard but he did not do so. It is also pertinent to mention here that the alleged occurrence took place at about 1.00 AM and injured Pappu Gupta was taken to Acharya Bhikshu government hospital at about 1.45AM where his MLC Ex.PW13/A was prepared wherein he was opined to be unfit for statement right from the time of his admission till his death. In view FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 46 of 47 of the contents of MLC Ex.PW13/A coupled with the fact that PW1 Sunita, who is the material witness and wife of the deceased Pappu Gupta, has not supported the allegations of the prosecution qua the accused persons and there is inordinate delay in recording statement u/s 161 Cr.P.C of PW8, I am of the opinion that the testimony of PW8 regarding the alleged dying declaration is not reliable. The law is well settled to the effect that when the dying declaration is under suspicion, it should not be acted upon without corroborative evidence. Hence, the testimony of PW8 ASI Azad Singh is not reliable and is full of suspicion and thus cannot be relied upon.
100. In view of the abovesaid discussion, I hereby hold that the prosecution has been not been able to prove its case beyond reasonable doubts against the accused persons and accordingly, accused persons namely Suresh @ Lakinder, Rafiullah @ Salman, Raju Ram @ Raju Biryani, Swalin and Wasim @ Chhote are acquitted for the offences punishable u/s 147/148 IPC, u/s 452/302/323 IPC r/w sec. 149 IPC.
101. File be consigned to Record Room with liberty to revive the same as and when accused Sufiyan is apprehended or otherwise produced before the Court.
Digitally signed by
MANISH
MANISH KHURANA
KHURANA Date: 2023.05.25
(Passed & announced 14:49:41 +0530
in open court today) (MANISH KHURANA)
Addl. Sessions Judge-04
West District, Tis Hazari Courts
Delhi/25.05.2023
FIR No. 115/2017 State Vs. Suresh @ Lakhinder & Ors. PS : Moti Nagar Page no. 47 of 47