Delhi District Court
State vs . Kapil Kaushik on 31 October, 2018
State Vs. Kapil Kaushik
IN THE COURT OF PAWAN KUMAR MATTO,
SPECIAL JUDGE (NDPS), ADDITIONAL SESSIONS JUDGE,
NORTH WEST, ROHINI COURTS, DELHI
Sessions Case Number : 51841/16
State
versus
1) Kapil Kaushik
s/o Shri Nanak Chand Sharma
R/o E-2/22, Budh Vihar,
Phase-I, Delhi.
2) Deepak @ Badbu @ Gudbu
s/o Shri Chander Pal,
R/o H. No. G-722,Gali No.6, Near Mother Dairy,
Shardanand Colony,
Bhalaswa Dairy,
Delhi.
3. Ashwani @ Akash @ Krishna
s/o Shri Ram Singh
R/o H.No.206, D-Block,
Gali No.3, Shardanand Colony,
Bhalaswa Dairy, Delhi.
4. Bhura Malik
s/o Shri Nanhe Malik
R/o E-Block, Shardanand Colony,
Bhalaswa Dairy, Delhi.
First Information Report Number : 459/11
Police Station : Samaipur Badli
Under section : 307/364-A/34 of IPC &
174A of IPC
Date of receiving the case by way of
transfer in this court : 22.09.2017
Final Arguments concluded on : 23.10.2018
Date of judgment : 31.10.2018
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 1/78
State Vs. Kapil Kaushik
JUDGMENT:
1. The brief facts of the case are that on dated 22.12.2011 at 8.55PM, DD No.54A Ex.PW1/A was lodged regarding the causing of injury with the knife and said DD was assigned to SI Jai Kumar and this SI Jai Kumar along with Ct. Anil had arrived at the spot ie at Mukarba chowk and came to know that injured was already taken to BSA hospital by PCR staff and they arrived in BSA hospital and obtained the MLC of Rahul (injured), wherein, the alleged history of assault and incised wounds over neck was mentioned and it was also mentioned that patient was unfit for making statement and statement of the father of this injured namely, Dharambir Ex.PW5/A was recorded, wherein he has stated that he was running a shop of chemist and his son Rahul also used to sit on the said shop on 22.12.2011 at about 8:25 PM and accused Kapil Kauhik who resides in Budh Vihar and who supplies the medicines to him for last 10 years, had come at his shop at 8.25 PM and took his son Rahul with him on the pretext of taking Gas cylinder and at about 8.45PM, this complainant had received telephonic call of his son Rahul, who had told to this complainant that someone had stabbed him and Rahul asked him to come immediately. He has also stated that soon thereafter, he had received another telephonic call of a police personnel who told that they were taking Rahul to BSA hospital and this complainant arrived in the BSA hospital where, his son Rahul was getting treatment and he found his son in the operation theater of said hospital and saw the injury on his neck, which appeared to have been caused with sharp edged weapon and no talk was held between this complainant and his son Rahul, as Rahul was unconscious and complainant also stated that he was not aware as to who had caused such injuries on the person of Rahul and it appeared to him that SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 2/78 State Vs. Kapil Kaushik someone had caused said injuries with the intention to kill him and on the basis of such statement of this complainant, FIR Ex.PW2/A was registered under section 307 of IPC. It is also stated in the report u/s.173 of Cr.P.C. that on dated 25.12.2011, it was revealed by complainant Dharambir that Kapil Kaushik did not return his house since the night of 22.12.2011 and he believed that Kapil Kaushik may be involved in the fatal attack on his son. Accordingly, on dated 25.12.2011, Kapil Kaushik was found at his home and he was apprehended and Kapil Kaushik had told to the police that his mother has already been expired and his father is a retired person. He has three children, two sisters and a house of 50 sq. yards and he used to supply the medicines for 8-10 years and he was getting meager salary and he was not able to pull his life in a smooth manner and he used to supply the medicines to the complainant Dharambir who was running shop in the name of Rahul Medicos at Sultanpuri for about 7-8 years, who is having huge pennies and there is only one boy in the family, whose name is Rahul and he chalked out a plan to kidnap Rahul and to demand huge money, as Kapil Kaushik used to see the house of the complainant frequently and he discussed with accused Bhura Malik and Bhura Malik and his companion Badbu and Ashwani @ Krishna had met him at the Badli bus stand few days prior to this occurrence and he made to recognize Rahul to the other accused and on 22.12.2011, he made a talk with Dharambir and told him that he has to go for taking a cylinder and asked him to send Rahul with him and Dharambir had send his son Rahul with accused Kapil Kaushik on his motorcycle and accused Kapil Kaushik took Rahul at Bhalaswa Dairy, Near Ganda Nala and as per their pre-plan, accused Bhura Malik met him with his two companions and robbed away Rs.1000/- from Rahul and thereafter, he escaped and went away from there and after parking the motorcycle, he SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 3/78 State Vs. Kapil Kaushik returned at the spot and accused Bhura Malik asked to Rahul to comply with the demand of Rs.30 lacs and on refusal, he asked him to comply with the demand of Rs.20 lacs. But Rahul refused and since, Rahul knew to this accused Kapil Kaushik, so, this accused Kapil could be implicated, so, accused Bhura Malik was asked to kill Rahul and he took out a knife and gave knife blows on the neck of Rahul and accused Badbu and Krishna had caught Rahul and accused Kapil had fled away on his motorcycle as he believed that Rahul would have expired and after two days, this accused Kapil had come to his house and changed his clothes and he was apprehended. He parked his motorcycle (used in the commission of crime) at his house and told to the police that he could get Bhura Malik and other companions, arrested. Accordingly, accused Kapil Kaushik was arrested, who had made the above disclosure statement and his motorcycle bearing registration No. DL 8S AN 8169 was also seized and accused Kapil Kaushik had pointed out the place of occurrence and blood stained earth control were also seized, parcels were prepared and sealed with the seal of JKM and on the pointing out of accused Kapil, accused Bhura Malik was also apprehended and arrested and he had also made disclosure statement and site plan was prepared and in pursuance of such disclosure statement of accused Bhura Malik, knife used in the commission of crime, was also recovered from the place pointed out by this accused and sketch of said knife was also prepared and parcel thereof was prepared and sealed with the seal of JKM and accused Bhura Malik and Kapil Kaushik were remanded in judicial custody. On dated 03.01.2012, third accused Ashwani @ Akash @ Krishna was also arrested, on receiving of the secret information, who had also participated in the commission of crime and he was also remanded in judicial custody and on dated 04.01.2012, the statement of the injured Rahul was also SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 4/78 State Vs. Kapil Kaushik recorded by the IO, wherein, he had deposed the name of the person, who had given knife blows on his person, as Bhura Malik as Kapil was addressing to this person, as, Bhura and also told that he could identify the person, who was there at the time, when, Bhura was giving knife blows on his person. On 07.12.2012, accused Bhura Malik and Ashwani @ Krishna had refused for their Test of Identification Parade (TIP) in the Rohini Jail and on dated 09.01.2012 the injured had identified to the accused Bhura and Ashwani in the Rohini Court and the fourth accused was still at large and accused Kapil Kaushik was granted bail on 13.01.2012 and Ashwani was granted bail on 23.01.2012 by the court of Sessions and on 02.2.2012 the parcels of blood stains and concrete and earth control and knife sealed with the seal of JKM were sent to FSL vide road certificate No. 12/21/12 and motorcycle bearing registration No. DL 8S AN 8169 was also released on superdari and fourth accused Deepak @ Badbu was still at large on dated 26.08.2012. NBWs of accused Deepak were obtained and after obtaining the result from FSL, opinion regarding the said knife was also obtained and since, in the statement of injured Rahul, demand of Rs.30 Lacs and thereafter, of Rs.20 lacs was made, therefore, section 364-A of IPC was also added and accordingly, after completion of investigation, charge sheet was filed against accused Kapil Kaushik, Bhura Malik and Ashwani @ Krishna under Section 307/364-A/34 of IPC. Copies thereof were supplied to the accused and the case was committed to the court of Addl. Sessions Judge and on finding, prima facie, case, charges under Sections 307/34 and 364-A/34 of IPC were framed against these accused and these accused were put on trial. Thereafter, accused Deepak @ Gudbu @ Badbu was declared Proclaimed offender vide order dated 15.09.2014 passed by the court of Ld. Metropolitan Magistrate and he was arrested on dated 17.09.2014 and then, SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 5/78 State Vs. Kapil Kaushik supplementary charge-sheet was filed against accused Deepak @ Gadbu @ Badbu, copy thereof was supplied to the accused and thereafter, it was committed to the court of Sessions and on finding, prima facie case, charges u/s. 307/34 and 364-A/34 of IPC and u/s.174- A of IPC were framed against this accused and this accused Deepak @ Badbu @ Gudbu was also put on trial.
2. Since, this was an old case registered way back in the year 2011, so, it was transferred to this court and this court has received this case on dated 22.09.2017.
3. In order to prove its case, the Prosecution has examined 20 witnesses.
4. HC Shakti Raj has been examined as PW-1. He was not cross examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross-examine this witness was done nil.
5. Whereas, HC Raj Kumar has been examined as PW-2. He was not cross examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross-examine this witness was done nil.
6. Whereas, Ct. Baljeet has been examined as PW-3. He was also cross examined by the Ld. Counsel for the accused Bhura. He was not cross examined by the Ld. Counsels for the other accused.
7. Whereas , HC Sanjay has been examined as PW-4. He was also cross examined by the Ld. Counsels for the accused.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 6/78State Vs. Kapil Kaushik
8. Whereas, Dharambir has been examined as PW-5. He was cross examined by Ld. Counsels for the accused.
9. Whereas, HC Satbir has been examined as PW-6. He was not cross-examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross -examine this witness was done nil.
10. Whereas, Ct. Anil Kumar has been examined as PW-7. He was cross-examined by Ld. Counsels for accused.
11. Whereas, Dipesh Sharma has been examined as PW-8. He was not cross examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross examine this witness was done nil.
12. Whereas, Dr. Alok Kumar has been examined as PW 9. He was cross examined by Ld. Counsel for accused Bhura Malik. He was not cross examined by the Ld. Counsel for the accused Kapil Kaushik and Ashwani. So, opportunity of the accused Kapil Kaushik and Ashwani to cross examine this witness was done nil.
13. Whereas, Manisha Upadhyaya has been examined as PW-10. She was not cross examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross-examine this witness was done nil.
14. Whereas, Ct. Pradeep Kumar has been examined as PW10-A. He was cross examined by Ld. Counsels for accused Kapil Kaushik and SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 7/78 State Vs. Kapil Kaushik Bhura. He was not cross examined by the Ld. Counsel for the accused Ashwani and Deepak. So, opportunity of the accused Ashwani and Deepak to cross examine this witness was done nil.
15. Whereas, HC Beg Raj has been examined as PW-11. He was cross examined by Ld. Counsels for accused Ashwani, Bhura and Kapil Kaushik. He was not cross examined by the Ld. Counsel for the accused Deepak. So, opportunity of the accused Deepak to cross examine this witness was done nil.
16. Whereas, SI Jai Kumar has been examined as PW-12. He was cross examined by Ld. Counsels for the accused.
17. Whereas Sh. Rahul Dahiya has been examined as PW -13. He was also cross-examined by Ld. Counsels for the accused.
18. Whereas, Sh. Jagmohan Singh, Ld. Metropolitan Magistrate has been examined as PW-14. He was not cross examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross examine this witness was done nil.
19. Whereas, Sh. Harjeet Singh Jaspal, Ld. Metropolitan Magistrate has been examined as PW-15. He was not cross examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross examine this witness was done nil.
20. Whereas, ASI Lav Kumar has been examined as PW -16. He was not cross examined by the Ld. Counsels for the accused. So, opportunity of all the accused to cross-examine this witness was done SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 8/78 State Vs. Kapil Kaushik nil.
21. Whereas, Ct Jay Prakash has been examined as PW 17. He was cross examined by Ld. Counsel for accused Ashwani & Bhura Malik. He was not cross examined by the Ld. Counsels for the accused Kapil Kaushik and Deepak @ Badbu. So, opportunity of the accused Kapil Kaushik and Deepak @ Badbu to cross-examine this witness was done nil.
22. Whereas, Dr. Shailender Kaushik has been examined as PW 18. He was cross examined by Ld. Counsels for the accused Bhura and Ashwani and Kapil Kaushik. He was not cross examined by the Ld. Counsel for the accused Deepak. So, opportunity of the accused Deepak to cross examine this witness was done nil.
23. Whereas, ASI Chetan Kumar has been examined as PW19. He was cross examined by Ld. Counsel for the accused Deepak. He was not cross examined by the Ld. Counsels for the accused Bhura, Ashwani and Kapil Kaushik. So, opportunity of the accused Bhura, Ashwani and Kapil Kaushik to cross-examine this witness was done nil.
24. On completion of the evidence of the prosecution, the statement of the accused u/s 313 of Cr.PC was recorded, wherein, all the incriminating evidences produced by the prosecution were put before all the accused and the accused have denied the correctness of evidence of the prosecution, led against them and they took the plea that they have been falsely implicated in this case.
25. I have heard the Ld. Counsels for the parties.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 9/78State Vs. Kapil Kaushik
26. The Ld. APP has submitted that in the case in hand, the FIR has been registered on the basis of the statement of Sh. Dharambir, (the father of the injured), Ex. PW 5/A as the father of the injured namely Rahul, had received a telephonic call, vide which, it was informed to him by the injured Rahul that Rahul has been stabbed by someone and submitted that since, accused Kapil Kaushik used to supply medicines at the shop of the complainant Dharambir and on 22.12.2011 at 08.25 p.m., accused Kapil Kaushik had come and took Rahul with him on the pretext of taking Gas Cylinder, but, at 08.45 p.m., the complainant had received a telephonic call from Rahul that someone had stabbed him. Soon thereafter, the complainant had received a phone call from the police informing that they were taking Rahul to the BSA hospital. Dharambir has also stated in his statement Ex.PW 5/A that on reaching at BSA hospital, he found that his son Rahul was getting treatment and he was in the Operation Theater and he saw that some one had attacked on his neck with a sharp edged weapon and also stated that since his Son was unconscious, so, no talk could be held between him and Rahul and he suspected that someone had attacked on him with intention to kill his Son and prayed for taking legal action and submitted that on the basis of such statement of Dharambir, FIR No. 459/11, u/s. 307 of IPC was registered on 23.12.2011 at 02.00AM. Ld. Addl. PP for the State also submitted that since, on 22.12.2011 at 08.25 p.m., accused Kapil Kaushik had taken Rahul with him on the pretext of taking Gas Cylinder and soon thereafter, a phone call of Rahul (injured) was received by the complainant that someone had stabbed him, so, the complainant Dharambir suspected on Kapil Kaushik and on inquiry by him, it was revealed that the accused Kapil Kaushik did not return to his house since, the night of 22.12.2011. So, he believed that this SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 10/78 State Vs. Kapil Kaushik accused Kapil Kaushik was having hand in the attack on his son Rahul and on recording of such statement of Dharambir on 25.12.2011, accused Kapil Kaushik was arrested and he made disclosure statement Ex.PW5/F, wherein, Kapil Kaushik had disclosed the names of other accused and thereafter, Bhura Malik was also arrested and his disclosure statement Ex.PW5/G was also recorded and it is further submitted that in furtherance of such disclosure statement made by the accused Bhura Malik, he had got recovered the knife used in the commission of the offence. So, the disclosure statement of Bhura Malik to the extent of recovery of the knife, is admissible and submitted that thereafter, on 03.01.2012, accused Ashwani was also arrested and he had also made disclosure statement Ex.PW12/D. He has also submitted that accused Ashwani @ Krishna @ Akash and Bhura Malik had refused TIP on 07.01.2012, so adverse inference is liable to be drawn against both of them in view of such refusal of TIP. He has also submitted that accused Deepak @ Badbu was declared Proclaimed Offender vide order dated 15.09.2014 and on 17.09.2014 Deepak @ Badbu was apprehended and submitted that no doubt that this Deepak was not identified in the TIP by the victim, but, as the victim Rahul has been examined as PW13 and he has correctly identified all the accused in the court and categorically stated that all the accused had taken out their knives and attacked on him and submitted that since, from the testimony of PW 13, it is clear that injuries on the neck were caused by accused Bhura Malik and knife and motorcycle, on which, accused Kapil Kaushik had taken the injured to the place of occurrence have been identified by the injured and further submitted that since, after infliction of such injuries, the injured remained unfit for making statement and he was discharged from the hospital on 28.12.2011 and his first statement was recorded by the IO on 04.01.2012, wherein, he SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 11/78 State Vs. Kapil Kaushik has revealed about the occurrence took place with him and submitted that since, all the accused in furtherance of their common intention had attacked on the injured and caused injuries on the person of the Rahul and injuries were declared as grievous, so, all the accused are liable to be convicted u/s. 307/34 IPC and it is submitted that since, the accused Deepak @ Badbu was also declared as PO and charge u/s. 174-A of IPC was also framed against him, so, he is also liable to be convicted thereunder and prayed for convicting of all the accused. The Ld. Addl. PP for the State has fairly admitted that the offence punishable u/s. 364-A of IPC could not be proved, so, he has not pressed conviction of the accused u/s. 364-A of IPC.
27. On the other hand, Ld. Amicus Curie for the accused Deepak @ Badbu has submitted that the charges against this accused have been framed u/s 307/34, 364-A/34 of IPC and u/s. 174A of IPC and submitted that since, accused Deepak was not identified by the injured Rahul in the TIP, so, the case of the prosecution becomes doubtful. He has also submitted that since, PW-13 during his cross examination has admitted that after apprehending the accused, IO had shown the accused to this witness in the police station, so, it is clear that the identification of the accused Deepak @ Badbu was done at the instance of the IO and submitted that TIP of the other accused Krishna and Bhura Malik are also inconsequential. He has also submitted that since, the accused Deepak @ Badabu was not named in the FIR, nor he was identified in the TIP, so, the identity of this accused Deepak beyond reasonable doubt has not been established. He has also submitted that nothing has been recovered from accused Deepak and proceedings u/s. 82 of Cr.PC are also not proper, as no photograph of any affixation of proclamation u/s. 82 of Cr. PC. was taken nor said proclamation was SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 12/78 State Vs. Kapil Kaushik published in any newspaper and submitted that since, accused Deepak @ Badbu was not living at the said address, so, the proclamation proceedings are vitiated. So the accused Deepak @ Badbu cannot be convicted u/s. 307/34 of IPC or u/s 174A of IPC.
28. Whereas, the Ld. Counsel for the accused Kapil Kaushik, Bhura Malik and Ashwani has submitted that in the Tehrir Ex.PW 5/A, none of the accused was named by the complainant. Had Rahul told the name of any of the accused to his father i.e. the complainant, he could mention the names of the accused in the Tehrir and further submitted that all the accused have been falsely implicated in the present case and submitted that since, PW-13 has admitted during his cross- examination that all the accused were shown to the injured Rahul in the police station after their apprehension and since, all of the accused except accused Kapil Kaushik, were unknown to the injured and submitted that the injured could give his statement to the police soon after the occurrence, but, injured had not told the name of any of the accused to the police and to the Doctor, when he was taken to the BSA Hospital and despite the fact that he was conscious, it is also submitted that since the injured was discharged from the hospital on 28.12.2011, he could give his statement to the police soon after his discharge, but he did not choose to give his statement to the police, soon after, his discharge from the hospital and submitted that the first statement of the victim Rahul Ex.PW13/D1 was recorded on 04.01.2012 and delay in recording of the statement creates clouds of suspicion in the version of the prosecution and submitted that the testimony of PW 13 is full of contradictions, improvements and embellishments, as PW13 in his statement Ex.PW13/D1 has alleged that Kapil Kaushik had exhorted to the accused Bhura Malik to cause injury. Whereas, at the time of SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 13/78 State Vs. Kapil Kaushik recording of his statement in the court, he has alleged that he was beaten by all the accused and submitted that the knife is planted on the Bhura Malik and since, the prosecution has failed to prove its case beyond reasonable doubt, and since PW-5, i.e. the complainant was also declared hostile and his testimony is also full of contradictions, so the case of the prosecution is doubtful, so, all the accused are liable to be acquitted.
29. I have given the thoughtful consideration to the submissions made by counsels for the parties and perused the record.
30. As per the statement of Rahul Dahiya (injured) PW-13, Ex.PW13/D-1, on dated 22.12.2011, at about 8.20PM, accused Kapil Kaushik is alleged to have taken Rahul Dahiya with him on his motorcycle on the pretext of taking gas cylinder. Kapil Kaushik also alleged to have taken on the Kachchi road, near Khatta, Bhalaswa Dairy, where, three accused are alleged to have stopped the motor- cycle of Kapil Kaushik, on this, injured Rahul was riding as pillion rider and they had robbed away Rs.1000/- from Kapil Kaushik and two accused are alleged to have caught to this Rahul (injured) and third accused is alleged to have shown the knife to the Rahul and asked to the Rahul that he should ask to his father to send Rs.30 lacs and when this injured had told to the accused that his father would not pay even Rs.10/-, then, the said accused had asked to this Rahul to ask his father to send Rs.20 lacs and in the meantime, this Rahul is alleged to have seen accused Kapil Kaushik and the boy, who was having knife in his hand was asked by Kapil Kaushik that this Rahul recognises to Kapil Kaushik, so, he should be killed away and accused Bhura is alleged to have given knife blows on the neck of injured and injured fell down and SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 14/78 State Vs. Kapil Kaushik the accused believed Rahul to be died, they had fled away from the spot and this Rahul is alleged to have arrived at the GT Karnal Road, Bus Stand of Punjab Roadways, where, a man is alleged to have phoned to the police and this Rahul is also alleged to have intimated to his father about the incident of stabbing him and Rahul had also stated in his statement Ex.PW13/D-1, that he became unconscious in the hospital and he was discharged from the hospital on dated 28.12.2011 and he knew Kapil Kaushik even prior to the incident and he could identify the other assailants, if they are produced before him. He has also stated that since Kapil Kaushik had named to the person who was having knife in his hand as Bhura, so, he has claimed that Bhura had stabbed him and in order to fortify it's case, the prosecution has examined 20 witnesses.
31. HC Shakti Raj has been examined as PW-1 and he has deposed that on 22.12.2011, he was posted as Head Constable at police station Samaipur Badli and on that day, he was working as duty officer from 4.00PM to 12.00 midnight and at about 8.55PM, wireless operator of the police station informed him regarding the incident of stabbing of a boy near Bus stand for going towards Punjab, GTK Road near Mukarba chowk. He has further deposed that on receiving of this information, he had recorded DD No.54A and contents of the same were informed telephonically to SI Jai Kumar. He has proved the DD No.54A written by him as ExPW1/A, which bears his signatures at point A. The opportunity to cross examine this witness was given to the counsels for accused, but, he was not cross examined by Ld. Counsels for the accused, so, the opportunity of the accused to cross examine this witness was done NIL. But, from the testimony of this witness, it is not proved on the record as to on whose call, DD No.54-A was lodged.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 15/78State Vs. Kapil Kaushik IO did not bother to record the statement of the caller of the said call nor he is examined in the court. Since the phone number was mentioned in the said DD No.54-A, so, IO could contact with him and could record his statement. But, IO did not bother for the same and the said person could reveal the truth. But, IO seemed to be negligent and such lapse is observed by this court on the part of the IO.
32. Whereas, HC Raj Kumar has been examined as PW-2 who has deposed that on 22.12.2011, he was posted as head constable at police station S.P. Badli and on the intervening night of 22/23.12.2011, he was working as duty officer at police station from 12.00 midnight to 8.00AM. He has further deposed that at about 2.00AM, Ct. Anil, gave him rukka of this case for registration of the case which was sent by SI Jai Kumar and on receipt of said rukka, he got registered the present case FIR No.459/11, under Section 307 IPC through computer operator Ct. Desh Raj. He has further deposed that after preparation of FIR, one copy of FIR was handed over to Ct. Anil who further handed over the same to SI Jai Kumar. He has also proved the copy of FIR Ex.PW2/A, which bears his signatures at point A. He had also made Kayami No.3A dated 23.12.2011 regarding registration of FIR in this case. He had also made an endorsement Ex.PW2/B on rukka to this effect in red encircled portion, which bears his signatures at point A. The opportunity to cross examine this witness was given to the counsel for accused, but, he was not cross examined by Ld. Counsels for the accused, so, the opportunity of the accused to cross examine this witness was done NIL.
33. Whereas, Ct. Baljeet has been examined as PW-3 and he has deposed that on 02.02.2012, he was posted at police station S.P. Badli as constable and on that day, as per directions of IO, he took SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 16/78 State Vs. Kapil Kaushik three sealed pullandas sealed with the seal of JKM, along with FSL form, from MHC(M) HC Satbir vide RC No. 12/21/12 to be deposited in FSL Rohini. He has further deposed that he got deposited the same at FSL Rohini and obtained the acknowledgement receipt of the same and after returning from the FSL, he had handed over the receipt to MHC(M). He has further deposed that till the pullandas remained in his possession, nobody had tampered with the same and IO recorded his statement at 4.00PM. This witness was cross-examined by the Ld. Counsel for accused Bhura Malik only and during his cross-examination by Ld Counsel for accused Bhura, he has deposed that he had left the police station with sealed pullandas at about 10.00AM and departure entry was made in the police station, when, he left the police station. He has admitted it to be correct that he had not brought the concerned DD register as the same was not called for. He has further deposed that he reached in FSL Rohini at 12.30PM by taking bus. He has further deposed that he cannot tell the name of the receiver to whom he had handed over the sealed pullandas in the FSL. He has further deposed that he had left the office of FSL at about 2.00PM. The opportunity to cross examine this witness was given to Ld. counsels for accused Kapil Kaushik and Ashwani, but Ld. Counsels for the accused Kapil Kaushik and Ashwani did not cross-examine him, so, the opportunity of these accused to cross examine this witness was done NIL.
34. Whereas, HC Sanjay has been examined as PW-4 and he has deposed that on 22.02.211, he was posted at PCR, Outer Zone and was performing his duties as Incharge Van at Libra 89 and on the intervening night of 22/23.12.2011, at about 8.50PM, on receiving of call from command Room, regarding the incident of stabbing a boy at Mukarba Chowk, GTK Road, on the way, which goes towards Punjab, SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 17/78 State Vs. Kapil Kaushik he along with other accompanying members had reached at bus stand bypass GT Karnal Road, where, one boy met them in injured condition, who told his name as Rahul and he had sustained injuries on his neck. He has further deposed that he immediately took the said boy Rahul to BSA hospital, Rohini and got him admitted at about 9.30PM and thereafter, they returned to their base. He has further deposed that on 16.02.2012, on being called by the IO of this case, he had reached in police station S.P. Badli at about 7.00PM, where his statement was recorded by the IO SI Jai Kumar. He has also proved the certified copy of PCR form as Ex.PW4/A. He was also cross-examined by Ld. Counsel for accused Bhura Malik and during his cross-examination, he has deposed that he left from base Rohini Jail at about 8.50PM and the entries regarding the proceedings carried out by him were made in the call book. He has further deposed that they came back to their base at about 9.45PM. He has denied that he had deposed falsely at the instance of IO. The opportunity to cross examine this witness was given to Ld. counsels for accused Kapil Kaushik and Ashwani, but Ld. Counsels for the accused Kapil Kaushik and Ashwani did not cross- examine him, so, the opportunity of these accused to cross examine this witness was done NIL. Thus, from the testimony of this witness and copy of PCR form Ex.PW4/A, it is clear that the PCR call was made by the caller Maninderjeet Singh, as his name, phone number and address were mentioned in the PCR form. But, IO did not bother to record the statement of Maninderjeet Singh. As in the PCR form Ex.PW4/A, it is mentioned that injured had suffered injuries in a scuffle with one man and who was that one man, it could be told by the caller of 100 number, to the police. But, IO remained negligent, as, he did not bother to record his statement nor he is produced in the court and in view of withholding of best evidence, adverse inference is taken against prosecution.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 18/78State Vs. Kapil Kaushik
35. Whereas, Dharamvir has been examined as PW-5 and he has also been cross-examined by Ld.Addl. PP for the State and thereafter, he was also cross-examined by Ld. Counsels for all the accused persons.
36. Whereas, HC Satbir has been examined as PW-6, who has deposed that on 02.02.2012, he was posted as MHC(M) at police station S.P. Badli and on that day, vide RC No.12/21/12, he had handed over three sealed pullundas to Ct. Baljeet for depositing in the FSL Rohini, of case FIR No. 459/11, which was deposited by HC Ranbeer vide entry No.6109/11 dated 25.12.2011 and after depositing the same, he had submitted the acknowledgement receipt to him and he had made entries in the malkhana register regarding handing over aforesaid three pullundas to Ct. Baljeet. He has proved the entries made by him in red encircled portion in malkahana register no.19, as Ex.PW6/A. He has proved the copy of RC as Ex.PW6/B and acknowledgement of FSL as Ex.PW6/C. The opportunity to cross examine this witness was given to the counsels for accused, but, he was not cross examined by Ld. Counsels for the accused, so, the opportunity of the accused to cross examine this witness was done NIL.
37. Whereas, Ct. Anil Kumar has been examined as PW-7 and he has deposed that on 22.12.2011, he was posted at police station Samaipur Badli and on that day, he was on emergency duty and he accompanied to IO SI Jai Kumar to Mukarba Chowk, Karnal Bypass where they came to know that one person was stabbed and was admitted in the BSA hospital by the PCR. He has further deposed that thereafter, he along with IO reached at BSA hospital, where injured SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 19/78 State Vs. Kapil Kaushik Rahul was found admitted in ICU and father of injured namely, Dharambir also met him there. He has further deposed that IO had collected the MLC of injured, on which, doctor had opined him unfit for making statement and IO had recorded the statement of father of injured Dharambir and on the basis of statement of Dharambir, IO had prepared rukka and handed over the same to him after about 1.00AM. He has further deposed that he had reached in the police station and got registered the case and thereafter, he had reached at the spot along with copy of FIR and rukka and handed over the same to the IO and from there, he accompanied the IO to BSA hospital, where, IO made inquiries from the doctor regarding the patient / injured, but, he was declared unfit for statement and thereafter, they returned to police station and his statement was recorded by the IO. This witness was also cross-examined by the Ld. Counsel for the accused and during his cross-examination by Ld. Counsel for accused Kapil Kaushik, he has deposed that they had reached at the spot at about 9.00PM, for the first time. He had not recorded any departure entry before leaving the police station and they returned to PS at about 11.00PM. A question was put to this witness that he had deposed in his examination in chief that he took rukka to police station after 1.00am in the night then how did he came back to the police station at about 11.00PM, to which, he had answered that they came back to police station at about 4.00am on the next date and he did not understand the question correctly. He did not make any arrival entry in the police station, when, they came back to police station at about 4.00am on the next date.
38. Whereas, Dipesh Sharma has been examined as PW8 who has deposed that he was doing the business of selling medicines at his shop No.U-28, Shiv Mandir Road, Budh Vihar, Phase-I, Delhi. He has SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 20/78 State Vs. Kapil Kaushik further deposed that he knew accused Kapil Kaushik, as he was working as salesman at his shop for the last two years prior to this case and he used to pay the accused Rs.5,000/- as salary. He has further deposed that on 16.02.2012, police had come on his shop and made inquiries from him and at that time, his statement was also recorded by the Police. The opportunity to cross examine this witness was given to the counsels for accused. But, he was not cross examined by Ld. Counsels for the accused, so, the opportunity of the accused to cross examine this witness was done NIL.
39. Whereas, Dr. Alok Kumar, Senior ENT, Dr. BSA hospital, Rohini, has been examined as PW9 and he has deposed that on 22.12.2011, he had examined the patient/injured Rahul s/o Dharambir, aged about 20 years, who was referred by CMO Dr. Jaswinder Singh to Sr. ENT, with alleged history of assault. On examination, he had observed following injuries on his person:
1. Incised wound over neck measuring about 8 x 13 cm approximately.
2. Incised wound over neck measuring about 5 x 2 cm approximately.
He has further deposed that the patient was also provided necessary treatment by him. He had made entries on the MLC regarding his examination in the red encircled portion on the MLC Ex.PW9/A, which bears his signatures at point A. He has further deposed that on 23.01.2012, on the basis of site and nature of injuries, he had opined the nature of injuries sustained by injured Rahul, as grievous. He had also made endorsement to this effect on the MLC at portion X to X1, which also bears his signature at point B and the MLC bears his signature at point C. He was also cross-examined by Ld. SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 21/78 State Vs. Kapil Kaushik Counsel for accused Bhura Malik and during his cross-examination, he has deposed that the injuries mentioned by him on the MLC may be caused by sharp edged weapon. The opportunity to cross examine this witness was given to Ld. counsels for accused Kapil Kaushik and Ashwani, but Ld. Counsels for the accused Kapil Kaushik and Ashwani did not cross-examine him, so, the opportunity of these accused to cross examine this witness was done NIL. Thus from the testimony of this witness and MLC Ex.PW9/A, it is clear that two injuries were allegedly suffered by the injured Rahul and this injured was conscious and oriented at the time of his medical examination on dated 22.12.2011 at about 9.30PM and the injuries were subsequently declared as grievous.
40. Whereas, Ms. Manisha Upadhyaya, Senior Scientific Officer, FSL has been examined as PW-10 and she has deposed that on 02.02.2012, three sealed parcels were received at their office from SHO, PS Samaipur Badli in connection with case FIR No.459/11 u/s.307/34 of IPC and the same were marked to her for biological and serological examination. She has further deposed that she had found the seal intact and seals were tallying with the specimen seal. Parcel No.1 was found containing Ex.1 ie earthly material kept in a plastic container described, as blood stained earth. Parcel No.2 was found containing Ex.2 ie earthly material kept in a plastic container described as earth control. Parcel No.3 was found containing Ex.3 ie weapon of offence made up of metal having dirty brown stains described as knife. She has further deposed that on examination, she had found blood on Ex.1,2 and 3 and she had also prepared her report in this regard Ex.PW10/A, which bears her signature at point A. She had also examined the exhibits serologically and on examination, human blood SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 22/78 State Vs. Kapil Kaushik was found on Ex.1,2 and 3. She has further deposed that Ex.1 and Ex.2 gave no reaction about blood group and blood group could not be ascertained on Ex.3 as the same was inconclusive. Her serological report in this regard is Ex.PW10/B, which bears her signature at point A and after examination, the remnants were sealed with the seal of FSL, MU Delhi. She has also correctly identified the Chhuri (knife) as Ex.P-2, the blood stained cemented masala contained in a plastic dibbi as Ex.P- 3 and the earth control which was also contained in plastic dibbi as Ex.P-4. The opportunity to cross examine this witness was given to the counsels for accused, but, she was not cross examined by Ld. Counsels for the accused, so, the opportunity of the accused to cross examine this witness was done NIL. Thus, from the testimony of this witness and her reports, it is clear that the grouping of blood was not done and it could not be ascertained as to whether the blood detected on the exhibits was of injured or of anyone else. No doubt that report of FSL Ex.PW10/A reveals that blood was detected on Ex.1, blood stained earth Ex.2, earth control and knife. But, as the FSL report Ex.PW10/B reveals that no grouping of blood of injured was done and on serological examination of weapon of offence, it's result is inconclusive. So, in the absence of any grouping of blood of injured Rahul, it cannot be inferred that the blood on the exhibits was of injured Rahul.
41. Whereas, Ct. Pradeep Kumar has been examined as PW- 10-A and he has deposed that on 25.12.2011, he was posted as constable in the police station Samaipur Badli and on that day, he had joined the investigation of this case with SI Jai Kumar Maan and HC Beg Raj and on that day, they had left the police station at about 12.40PM and reached in the BSA hospital, where complainant Dharambir had met them and IO recorded his supplementary SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 23/78 State Vs. Kapil Kaushik statement. He has further deposed that after he had joined the IO, at about 1.15PM, they had left from the BSA hospital and when, they reached at Budh Vihar, Phase-I, IO came to know about the arrival of accused Kapil at his house, on which, they had arrived at the house of accused Kapil Kaushik at H. No.E-2/22, Budh Vihar, where IO had knocked the door and made a call to Kapil, on which, one person had opened the door and on seeing that person, Dharambir had identified him as accused Kapil. Thereafter, accused Kapil was interrogated by SI Jai Kumar Mann and he had disclosed about the whole occurrence along with his other associates. After interrogation, accused Kapil Kaushik was arrested by the IO vide memo of arrest Ex.PW5/B and the personal search of accused Kapil Kaushik was conducted vide memo Ex.PW5/D and disclosure statement Ex.PW5/F of accused Kapil was also recorded. He had also identified accused Kapil Kaushik in the court being the same person, who was arrested by the IO in this case at the instance of complainant Dharambir. He has further deposed that in pursuance of his disclosure statement, accused Kapil Kaushik got recovered one motorcycle make Hero Honda Glamor bearing registration No.DL-8SAN-8169 from his house, which was taken into possession by the IO vide seizure memo Ex.PW5/H. Thereafter, motorcycle was taken to police station and the same was deposited in the malkhana. He has further deposed that thereafter, accused Kapil Kaushik took them to Khatta, Bhalaswa Dairy, towards the northern side wall of Ganda Nala, at the place, from where the wall was in broken condition and while pointing out that place, accused Kapil Kaushik told that it was the same place, where he had dropped Rahul after taking him on his motorcycle. He has further deposed that IO had prepared the pointing out memo Ex.PW5/I at the instance of accused Kapil Kaushik. He has further deposed that some blood was found on the western side SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 24/78 State Vs. Kapil Kaushik of that broken wall. The blood stained cemented was scratched with the help of one iron patti and the same was kept in a plastic dibbi and it was sealed with the seal of JKM, which was taken into possession by the IO and cemented plaster without blood was also collected from that place and it was kept in a plastic dibbi and after sealing the same with the seal of JKM, it was taken into possession. He has further deposed that thereafter, accused Kapil Kaushik took them at Durga chowk, Bhalaswa Dairy, Delhi, from where, at the instance of accused Kapil Kaushik, accused Bhura Malik was apprehended and he was interrogated by the IO and he had reiterated the same facts as disclosed by accused Kapil Kaushik. He has further deposed that after interrogation, accused Bhura Malik was arrested by the IO and IO recorded his disclosure statement and thereafter, accused Bhura Malik had also pointed out the place of occurrence. Thereafter, IO had prepared the site plan of the place of occurrence and thereafter, accused Bhura Malik got recovered one chhuri from near ganda nala, Bhalaswa Road towards Kacchi Sadak, near corner in the deep area. He has further deposed that IO had prepared the sketch of the chhuri and on measuring, total length of chhuri was 35.5cm, length of handle was 10cm and length of blade was 25.5cm. Thereafter, pullanda of chhuri was prepared with the seal of JKM and it was seized and seal after use was handed over to HC Begraj and viscera was also taken into possession. He has further deposed that efforts were made to find out the accused Badbu and Krishna, but, they could not be found and thereafter, they came back to police station and deposited the case property in the malkhana, where IO recorded his statement. PW-10 has also identified the motorcycle No. DL8SAN 8169 make Hero Honda Glamor Ex.P-1, brought by accused Kapil Kaushik being superdar in the court. He has also correctly identified the Chhuri Ex.P-2, the blood stained cemented SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 25/78 State Vs. Kapil Kaushik masala contained in a plastic dibbi Ex.P-3 and the earth control which was also contained in plastic dibbi Ex.P-4. He was also cross- examined by Ld. Counsels for accused and during his cross- examination, he has deposed that the incident had occurred on 22.12.2011, but, he had joined the investigation of this case on 25.12.2011 and he along with SI Jai Kumar Mann had left the police station on 25.12.2011 at 12.45PM and in his presence, SI Jai Kumar Mann had not made any departure entry. He has further deposed that they had reached from the police station at BSA hospital, where, complainant Dharambir had met them and at that time, IO recorded supplementary statement of Dharambir. Thereafter, at about 1.15PM, they had left the hospital for Budh Vihar, Phase-I. His statement was recorded only once on 25.12.2011, after completing the investigation, by the IO in the police station. He has further deposed that IO might have made arrival entry in the police station. He has denied that accused Kapil was not arrested in the manner as deposed by him or that accused Kapil had not made any disclosure statement or that signatures of accused Kapil was obtained on some blank papers, which were later on fabricated against him. He has further deposed that he had signed the arrest memo, personal search memo, pointing out memo of accused Kapil Kaushik. He has further deposed that they left the spot for the police station at about 9.00PM. He has further deposed that total two pullandas were prepared on that day, in his presence. Thus, from the testimony of this witness, it is clear that the disclosure statement of accused Kapil was recorded in the custody of the police and in furtherance thereof, motorcycle of accused Kapil was also recovered, but, in view of the recovery of motorcycle, in furtherance of the disclosure statement of accused Kapil, accused Kapil cannot be convicted on the basis of such disclosure statement which was SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 26/78 State Vs. Kapil Kaushik otherwise recorded by the police while, he was in the custody of the police. Since, this witness has also deposed during his examination in chief that Viscera was also taken into possession but, no one has expired in the present case so, whose viscera was taken into possession, is not disclosed by this witness. So, the testimony of this witness appears to be doubtful. So, his testimony does not inspire any confidence.
42. HC Beg Raj has been examined as PW11 and he has deposed that on 25.12.2011, he was posted as Head Constable at police station Samaipur Badli and on that day, he had joined the investigation of this case with SI Jai Kumar Maan and Ct. Pradeep and they had left the police station at about 12.40PM and reached in BSA hospital, where, complainant Dharambir had met them and IO recorded his statement. He has further deposed that after joining him by the IO, at about 1.15PM, they had left BSA hospital and when they reached at Budh Vihar, Phase-I, where the IO came to know about the arrival of accused Kapil at his house, on which, they arrived at the house of accused Kapil at H. No.E-2/22, Budh Vihar, there, IO had knocked the door and made a call to Kapil and one person had opened the door and on seeing that person, Dharambir had identified him as accused Kapil. He has further deposed that accused Kapil was interrogated by SI Jai Kumar Maan, wherein, he had disclosed about the whole occurrence along with his other associates and after interrogation, he was arrested by the IO vide memo of arrest Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/D. He has further deposed that IO recorded disclosure statement of Kapil Ex.PW5/F. He had correctly identified accused Kapil in the court, as the same person, who was arrested by the IO at the instance of complainant Dharambir. He has SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 27/78 State Vs. Kapil Kaushik further deposed that in pursuance of his disclosure statement, accused Kapil Kaushik had got recovered motorcycle Hero Honda Glamor bearing registration No. DL8S AN 8169 from the verandah of his house, which was taken into possession by the IO vide seizure memo Ex.PW5/H. He has further deposed thereafter, the motorcycle was taken to police station and the same was deposited in the malkhana. He has further deposed that accused Kapil Kaushik took them at Khatta, Bhalaswa Dairy, towards the northern side wall of Ganda Nala, at the place, from where, the wall was in broken condition and while pointing out that place, accused Kapil Kaushik told that it was the same place, where he had dropped Rahul after taking him on his motorcycle. He has further deposed that IO had prepared the pointing out memo Ex.PW5/I in this regard and at that time, some blood was found on the western side of that broken wall and IO took photograph of the same from his mobile phone and the blood stained cement was scratched with the help of one iron patti, which was kept in a plastic dibbi and it was sealed with the seal of JKM and was taken into possession by the IO vide seizure memo Ex.PW5/M. He has further deposed that cemented plaster without blood was also collected from near that place and it was also kept in a plastic dibbi and after sealing the same with the seal of JKM, it was taken into possession vide memo Ex.PW5/N. He has further deposed that after, accused Kapil Kaushik took them at Durga chowk, Bhalaswa Dairy, Delhi, from where, on seeing a person standing at Durga Chowk, accused Kapil Kaushik pointed out towards him as accused Bhura Malik, who was apprehended. This witness had correctly identified accused Bhura Malik, in the court. He has further deposed that he was also interrogated by the IO and he had reiterated the same facts, as disclosed by accused Kapil Kaushik and after interrogation, he was arrested by the IO vide memo of arrest Ex.PW5/C, SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 28/78 State Vs. Kapil Kaushik his personal search was conducted vide memo Ex.PW5/E and his disclosure statement Ex.PW5/G was recorded by the IO. He has further deposed that accused Bhura Malik took them to Ganda Nala, Kachchi Sadak and pointed out the place of occurrence from inside the wall of the nala and thereafter, IO prepared the site plan of the place of occurrence and thereafter accused Bhura Malik pointed out the place, where, he had concealed the chhuri (knife) in the mud in the ground and from there, he got recovered one chhuri from near Ganda Nala, Bhalaswa Road towards Kachchi Sadak, near corner in the deep area and IO prepared the sketch Ex.PW5/K of said chhuri (knife) and on measurement, the total length of chhuri was 35.5cm, length of handle was 10cm and length of blade was 25.5cm. He has further deposed that pullanda of chhuri was prepared and it was sealed with the seal of JKM and was seized vide seizure memo Ex.PW5/L and the seal after use was handed over to him. He has further deposed that efforts were made to find out accused Badbu and Krishna, but, they could not be found at the instance of accused Bhura Malik and they returned to the police station at about 9.00PM and case property was deposited in the malkhana and accused were put in the lockup and his statement was recorded by the IO. He has correctly identified the motorcycle bearing registration No. DL 8S AN 8169 maker of which was Hero Honda Glamor Ex.P-1 as the same which was got recovered by accused Kapil Kaushik. He has also identified one chhuri Ex.P2 as the same, which was recovered from accused Bhura Malik and one plastic dibbi containing blood stained cemented masala Ex.P3 and also one another plastic dibbi containing earth control ie cemented masala without blood as Ex.P-4. This witness was cross-examined by Ld. Counsels for the accused and during his cross-examination, he has deposed that IO had asked him to join the investigation about 10-15 minutes prior to leaving SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 29/78 State Vs. Kapil Kaushik the police station at 12:40 pm. He has further deposed that they reached in the hospital at about 12.55 PM in a private white car of IO and he did not remember the maker and registration number of the said car. He has further deposed that IO might have asked someone to join the investigation at Budh Vihar, but, he did not request anybody to join the investigation. He has denied that they did not visit the house of accused Kapil or that complainant did not join the investigation in his presence. He has denied that no motorcycle was recovered at the instance of accused Kapil or that accused did not point out the place of alleged occurrence. He has also denied that he did not join the investigation or that he did not visit the spot. He has further deposed that he might have signed about 9-10 documents as a witness during the investigation joined by him. He has further deposed that during the pointing out of the spot by accused Kapil, they remained there for about 30-45 minutes. He has denied that accused Bhura Malik was not arrested from Durga Chowk, Bhalswa Dairy or that he had deposed falsely in this regard. He has further deposed that at the time of his second visit at the spot, when, Bhura Malik was in their custody, they remained there for about one hour. He did not remember the exact time, when, they finally left the spot. He has denied that nothing was recovered at the instance of Bhura Malik or that he has deposed falsely or that knife was planted on accused Bhura Malik or that he had signed all the documents in the police station on the asking of IO or that only because of this reason, no independent witness was joined. He has denied that he had deposed falsely. He did not remember the exact time, when, the complainant was discharged by the IO. His statement was recorded by the IO after reaching in the police station at about 9:00 pm. Thus, from the testimony of this witness, it is clear that no public witness was asked to join the investigation of this case by the IO in the SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 30/78 State Vs. Kapil Kaushik presence of this witness and this witness has claimed that the chhuri (knife) alleged to have been used in the commission of crime was recovered in furtherance of disclosure statement made by this accused Bhura Malik, but as the disclosure statement of accused Bhura Malik is alleged to have been recorded in the custody of the police and in the presence of the complainant and signature of complainant is obtained thereon, as witness. But at the time of evidence, the complainant was declared hostile as he failed to support the case of prosecution. As the IO has failed to make sincere efforts to join any of the witness of public so, the possibility of planting of knife by the IO on accused Bhura Malik, cannot be ruled and in the absence of public witness to the recovery of knife, such recovery also becomes doubtful. Therefore, the testimony of this witness also becomes doubtful.
43. SI Jai Kumar has been examined as PW-12 and he has deposed that on 22.12.2011, he was posted at police station Samaipur Badli as Sub Inspector and on that day, on receiving DD No.54A, he along with Ct. Anil Kumar reached at the spot at Mukarba Chowk, where, on inquiry, he came to know that injured was already taken to the BSA hospital by the PCR and thereafter, he along with Ct. Anil arrived at BSA hospital, where, he found injured Rahul s/o Shri Dharambir was under treatment and he had obtained his MLC No.13552/11 and injured Rahul was unfit for making statement. He has further deposed that father of the injured namely Dharambir met them. He had recorded his statement / complaint Ex.PW5/A and prepared tehrir Ex.PW12/A and handed over the same to Ct. Anil Kumar and he left the hospital to go to police station for registration of FIR and after getting the FIR registered, Ct. Anil came back in the hospital and handed over the copy of FIR and original tehrir to him. He has further SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 31/78 State Vs. Kapil Kaushik deposed that he searched for accused Kapil, but in vain. He has further deposed that on 25.12.2012, he along with HC Begraj and Ct. Pradeep left the police station and reached in the BSA hospital and from there, complainant Dharambir also joined the investigation of the present case and thereafter, he along with complainant, HC Beg Raj and Ct. Pradeep left the BSA hospital and reached at the house of Kapil at E-2/22, Budh Vihar, Phase-I, Delhi and accused Kapil was arrested on the identification of Dharambir vide memo of arrest Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/D and his disclosure statement Ex.PW5/F was also recorded, wherein, he had disclosed the names of his associates as Deepak @ Gadbu, Ashwani and Bhura Malik. He has further deposed that he had seized the motorcycle bearing registration No. DL8S AN 8169, used in the commission of offence, from his house, vide seizure memo Ex.PW5/H. He has further deposed that they came back to the police station and he had parked the motorcycle there and handed over the copy of seizure memo to the MHC(M) and they all along with accused Kapil again left the police station and reached Bhalaswa Dairy near Kuda Khatta (Dalao) and there was a wall between Ganda nala and Kuda Khatta and a passage was there, which was made by breaking the wall and accused Kapil led them through that passage and pointed out the spot and prepared pointing out memo Ex.PW5/I in this regard. He has further deposed that he had observed blood spots on the wall through which, the injured had passed and he removed blood stained wall material and plain wall material from the wall and kept the same in two plastic containers and two separate pullandas were prepared and sealed with the seal of JKM and seized the blood stained cemented wall material vide seizure memo Ex.PW5/M and earth control of cemented wall material vide seizure memo Ex.PW5/N. He has further deposed SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 32/78 State Vs. Kapil Kaushik that accused Kapil led them to Durga Chowk, Bhalaswa Dairy and from where, on the pointing out of accused Kapil Kaushik, accused Bhura Malik, was arrested vide memo of arrest Ex.PW5/C and his personal search was conducted vide memo Ex.PW5/E and he had interrogated accused Bhura Malik and recorded his disclosure statement Ex.PW5/G. He has further deposed that thereafter accused Bhura Malik led the police party to rough way/kachcha Rasta and pointed out a place, where, he had buried a knife and after removing the soil, he took out a knife and produced the same before this witness. He has further deposed that he had prepared the sketch of knife Ex.PW5/K and thereafter seized the same vide seizure memo Ex.PW5/L, after preparing a pulanda and sealing the same with the seal of JKM and seal after use was handed over to HC Begraj. He has further deposed that thereafter, they had searched accused Ashwani, but in vain and thereafter, they all along with both the accused in custody, came back to police station Samaipur Badli and deposited the case property in the malkhana and accused were put in the lockup and IO recorded statements of witnesses of the prosecution. He has further deposed that next day, accused were produced before the court and were remanded in judicial custody. He has deposed that on 03.01.2012, he along with Ct. Jai Parkash left the police station for the investigation of the present case and reached at the residence of Ashwani @ Krishna, situated at D-Block, Gali No.3, H.No.206, Shradhanand Colony, Bhalaswa Dairy, Delhi and accused Ashwani was found present in his house and he was arrested vide memo of arrest Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C. He has further deposed that date on the personal search memo Ex.PW12/C was mentioned as 03.12.2011 instead of 03.01.2012. He has further deposed that he had recorded the disclosure statement Ex.PW12/D of accused Ashwani and accused SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 33/78 State Vs. Kapil Kaushik Ashwani also pointed out the spot vide pointing out memo Ex.PW12/E. He has further deposed that after medical examination of this accused, he was put in the lockup and this witness had recorded the statement of Ct. Jai Parkash and next day, accused Ashwani was produced before the court and remanded in JC. He has further deposed that he had moved an application for TIP of accused Bhura Malik and Ashwani, which was fixed for 07.01.2012, but, both the accused refused to participate in the TIP and he obtained the copy of TIP proceedings and made the same part of record. He has further deposed that on 02.02.2012, he got the exhibits of the present case deposited at FSL, through Ct. Baljeet and on that day, he had recorded the statement of Ct. Baljeet and the then MHC(M). He has further deposed that he had searched for accused Deepak @ Badbu, but in vain and thereafter, he obtained NBW against him and also processes u/s.82 & 83 of Cr.PC were also issued and thereafter, this accused Deepak @ Badbu was declared Proclaimed Offender. He has further deposed that after completion of investigation, he had filed the charge-sheet against accused Kapil Kaushik, Ashwani and Bhura Malik. He has further deposed that accused Bhura Malik was arrested by the police staff of PS Mehrauli and information regarding his arrest was conveyed to police station Samaipur Badli and on 17.09.2014, he had arrested accused Deepak @ Badbu in this case with the permission of the court, vide memo of arrest Ex.PW12/F. He has further deposed that during the police custody remand, injured Rahul had identified accused Deepak, but, he could not identify him in the judicial TIP. He has further deposed that thereafter, he had filed supplementary charge-sheet against accused Deepak @ Badbu and he has correctly identified accused Deepak @ Badbu in the court. He has further deposed that he had prepared site plan Ex.PW12/G and accused Bhura Malik had also SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 34/78 State Vs. Kapil Kaushik pointed out the spot vide pointing out memo Ex.PW5/J. He had identified the motorcycle is Ex.P-1, as the same, which was seized by him from the house of accused Kapil Kaushik and he has also identified the knife Ex.P-2, as the same knife, which was recovered at the instance of accused Bhura Malik. This witness was also cross- examined by Ld. Counsels for the accused and during his cross- examination, he has denied that he had falsely implicated the accused Deepak in the present case just on the basis of disclosure statement. He has admitted it to be correct that nothing was recovered from the possession of accused Deepak, which may connect him to the present case, except the disclosure statement of accused persons. He has denied that he had investigated the matter in haste without application of mind or that falsely planted the statement of injured Rahul regarding the identification of accused Deepak to save himself from the embarrassment from senior officers. He has denied that he had deposed falsely. He has deposed that he had received information at about 8.55pm on 22.12.2011 and immediately left the police station and reached at the spot at about 9.15pm and from there, to the hospital within 15 minutes and in the hospital, injured and his father had met him and after about 30 minutes, he had recorded the statement of complainant. He has admitted it to be correct that thereafter, they searched for the accused persons and came back to police station. He has further deposed that he had also visited the hospital on 23.12.2011 and 25.12.2011. He has further deposed that he had handed over tehrir to Ct. Anil at about 1.30am, who came back to BSA hospital with copy of FIR after about 45 minutes. He has denied that Dharambir did not join the investigation of this case with him at any point of time or that he had obtained his signatures on the documents, while sitting in the PS. He has denied that accused persons have been falsely implicated in this SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 35/78 State Vs. Kapil Kaushik case or that they were not arrested in the manner as deposed by him or that they did not make any disclosure statements or that nothing was recovered at their instance or from the possession of accused Bhura Malik or that none of the accused had pointed out the spot or that signatures of accused persons were obtained forcibly on blank papers in the police station or that later on said papers were converted into different memos or that knife was planted on accused Bhura Malik. He has further denied that accused persons were shown to the victim prior to their TIP proceedings or that he had deposed falsely. Thus, from the testimony of this witness and copy of DD No.54-A and PCR form Ex.PW4/A, it is clear that the PCR call was made by the caller Maninderjeet Singh, as his name, phone number and address were mentioned in the PCR form Ex.PW4/A and his phone number was also mentioned in DD No.54-A. Ex.PW1/A. But, despite of availability of the names and address of Maninderjeet Singh, this investigating officer did not bother to record the statement of Maninderjeet Singh. As in the PCR form Ex.PW4/A, it is mentioned that injured had suffered injuries in a scuffle with one man and who was that one man with whom the scuffle of the injured was held, it remained a mystery and since the PCR form Ex.PW4/A reveals that this injured Rahul had suffered injury in a scuffle with one man, so, the story of the prosecution becomes doubtful. As the charge-sheet in the present case has been filed against four accused. Had the IO contacted with Maninder Jeet Singh, who had dialled 100 number to call the police, he could tell about the same 'one person' who had caused injury to the injured and in view of negligent conduct and lackadaisical approach of this IO, this fact could not come on record as to who was that one man, who had caused injury on the person of the injured. This witness has deposed that the chhuri (knife) was recovered in furtherance of the disclosure statement Ex.PW5/G made by the SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 36/78 State Vs. Kapil Kaushik accused Bhura Malik. But, as the disclosure statement alleged to have been made by the accused Bhura Malik, was allegedly recorded in the custody of police and the since the recovery of the alleged knife is affected in furtherance of the disclosure statement, the accused Bhura Malik, so, such disclosure statement of this accused to the extent of recovery of the knife is admissible. But, in the considered opinion of this court, accused Bhura Malik cannot be convicted on the basis of such disclosure statement alleged to have been made by this accused, as, no efforts have been made by the IO to join any independent public witness and PW-5 who is the father of the injured, who is also witness to the alleged recovery, has also failed to support the case of the prosecution and in view of non-examination of Maninder Jeet Singh, an adverse inference is drawn against the prosecution for withholding of the best evidence and in view of the lapse on the part of the investigating officer, the case of the prosecution also becomes doubtful. Since, the occurrence is alleged to have taken place on 22.12.2011 at about 8:30PM and the MLC of the injured Rahul reveals that at the time of his medical examination in the BSA hospital on 22.12.2011 at 9.30PM, he was conscious and oriented. No doubt that on the MLC of injured Rahul, it is mentioned that on dated 22.12.2011, 23.12.2011 and 24.12.2011, injured was unfit for making statement. Since, the injured was discharged from the hospital on 28.12.2011 and the statement of the injured was recorded by the IO on 04.01.2012. The delay in recording of the statement of the injured is not explained. So, such delay in recording of the statement of PW-13 also creates serious doubt regarding the case of the prosecution. So, the possibility of introduction of an after-thought and colourful version cannot be ruled out. In the given circumstances the testimony of this witness does not inspire any confidence therein.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 37/78State Vs. Kapil Kaushik
44. Whereas, Rahul Dahiya has been examined as PW-13 and he was also cross-examined by Ld. Counsels for all the accused persons.
45. Shri Jagmohan Singh, Metropolitan Magistrate, has been examined as PW-14. He has deposed that on 04.01.2012, while he was posted as Metropolitan Magistrate at Rohini Courts, Delhi, one application was moved by the IO for conducting TIP of accused Bhura Malik and Ashwani and the same was marked to him being Link MM to the concerned court of PS Samaipur Badli, with the endorsement of Ld. MM. He had fixed the TIP of accused produced before him for 07.01.2002, by making endorsement. The application bearing the endorsement is proved as Ex.PW14/A. He has further deposed that he had conducted the TIP proceedings of accused Bhura Malik and Ashwani on 07.01.2002 in District Jail, Rohini, Delhi, during which, they had refused to join the TIP and despite warning of the consequences, they persisted on refusal. The proceedings including the statement of accused persons and the statutory certificate running into two pages are proved as Ex.PW14/B and Ex.PW14/C respectively and the request application Ex.PW14/D of the IO and the copies of proceedings were allowed to be supplied to the IO. The opportunity to cross examine this witness was given to the counsels for the accused. But, Ld. Counsels for the accused did not cross-examine this witness, so, the opportunity of the accused to cross examine this witness was done NIL.
46. Whereas, Sh. Harjeet Singh Jaspal, Metropolitan Magistrate, has been examined as PW-15 and he has deposed that on 22.09.14, he was posted as Metropolitan Magistrate at Rohini Courts SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 38/78 State Vs. Kapil Kaushik and on that day, he had conducted the TIP of accused Deepak @ Gudbu S/o Sh. Chander Pal at District Jail, Rohini and the witness has failed to identify the accused. The TIP proceedings Ex.PW13/D-3 bears his signature at point A and he had directed his staff to send the proceedings in a sealed cover to the concerned court and one copy of the same was provided to the IO on moving his application Ex. PW13/D-4, allowed by him at point A. The opportunity to cross examine this witness was given to the counsels for all the accused. But, Ld. Counsels for all the accused did not cross-examine this witness, so, the opportunity of the accused to cross examine this witness was done NIL.
47. Whereas, ASI Lav Kumar, has been examined as PW-16, who has deposed that on 17.09.2014, he was posted at police station Mehrauli as Head Constable and on that day, he had received a secret information that one person who has been declared PO in a case of police station Samaipur Badli was standing near Gujjar Chowk, Bhalaswa Dairy and after receiving this information, he had constituted a raiding party, comprising him, ASI Jitender and HC Rupesh. Thereafter, they all along with secret informer reached at Gujjar Chowk, Bhalaswa Dairy and from there, accused Deepak, was apprehended on the pointing out of informer and on inquiry, it was revealed that he was declared PO in case FIR No.459/11, u/s.307/364A/34 IPC pertaining to police station Samaipur Badli, so, he was arrested under section 41(C) of CrPC, vide memo of arrest Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B and accused Deepak @ Badbu was produced before the concerned court of police station Samaipur Badli vide CALANDRA Ex.PW16/C and IO recorded his statement. The opportunity to cross examine this witness was given to the counsels for all the accused. But, Ld. Counsels for all the accused did not cross-
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 39/78State Vs. Kapil Kaushik examine this witness, so, the opportunity of the accused to cross examine this witness was done NIL. Thus, from the unbrebutted and unimpeached testimony of this witness, it is clear that accused Deepak @ Badbu was arrested by this witness as he was earlier declared proclaimed offender.
48. Whereas, Ct. Jay Prakash has been examined as PW-17, who has deposed that on 03.01.2012, he was posted at police station Samaipur Badli as constable and on that day, he had joined the investigation of the present case along with SI Jai Kumar and at about 12.15PM, he along with IO SI Jai Kumar left the police station vide DD No.17A in search of accused persons of the present case and they searched the accused persons in Gali No.6 & Gali No.3 of Shardhanand Colony, Bhalaswa Dairy and also in the area of "Khatta" of Bhalaswa Dairy and Ganda Nala and at about 2.00PM, when they were at Durga Chowk, they came to know that accused Ashwani @ Akash had just arrived in his house, so, he along with IO reached at H.No.206, Gali No.3, Shardhanand Colony, Bhalaswa Dairy, Delhi. He has further deposed that IO had called accused Ashwani @ Akash by his name from outside his house and thereafter, accused Ashwani, came out of his house and he was interrogated and he had confessed his involvement in the present case along with his associate. He has further deposed that IO recorded his disclosure statement Ex.PW12/D and thereafter, he was arrested vide memo of arrest Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C. He has further deposed that they had also made search for other accused persons, but in vain and thereafter, accused Ashwani led the police party near the broken wall of Ganda Nala i.e. the spot and pointed out the spot vide pointing out memo Ex.PW12/E and as per the disclosure statement of SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 40/78 State Vs. Kapil Kaushik this accused Ashwani, they made search of the clothes, which were worn by this accused at the time of incident, in the flowing water of Ganda Nala, but in vain. He has further deposed that thereafter, they came back to police station at about 7.00PM and IO sent accused Ashwani along with one constable for his medical examination and IO had recorded his statement. And the the Ld. APP had sought permission from the court to ask a leading question to this witness and the predecessor was pleased to grant the permission to ask leading question and Ld. APP for state had asked that after the arrest of accused Ashwani, he was kept in muffled face and this witness has admitted it to be correct. He was also cross-examined by Ld. Counsel for accused and during his cross-examination, he has deposed that he had received the first information for joining the investigation of the present case at 8.30PM but he did not remember the date thereof and at that time, IO was present at the NALA situated in Bhalaswa Dairy and he was present in the police station. He has further deposed that he met to the IO at the said Nala situated in Bhalaswa Dairy, after about 15 minutes of receiving such information and he had arrived there on his own motorcycle and at that time, IO was writing something. He did not remember as to what had he done after arriving at the spot and on which dates, he had joined the investigation in the present case. He also did not remember as to on which date, he had met to the IO regarding the investigation of the present case last time. He had denied that he had never joined the investigation of the present case or that for the same reason, he was not able to tell the dates or that he had deposed falsely. Since, the alleged disclosure statement of accused Ashwani @ Akash Ex-PW12/E was recorded in the custody of the police so, the same is not admissible.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 41/78State Vs. Kapil Kaushik
49. Whereas, Dr. Shailender Kaushik, Senior Medical Officer has been examined as PW-18, who has deposed that he had been working in the hospital since year 2002 and he had worked with Dr. Jasvinder Singh, the then CMO, in December 2011 and he had seen him writing and signing number of medical documents. He has further deposed that on 22.12.2011, one patient namely Rahul was brought in the hospital with alleged history of assault who was examined under the supervision of Dr. Jasvinder Singh vide MLC Ex.PW9/A, bearing signature of Dr. Jasvinder Singh at point D and as per the MLC, nature of injury was grievous. He was also cross-examined by Ld. Counsels for all the accused and during his cross-examination, he has admitted it to be correct that he was not present during examination of patient Rahul and he has no personal knowledge regarding the MLC Ex.PW9/A, of the present case. Since, the perusal of the MLC of the injured Rahul reveals that Rahul was conscious and oriented and Rahul did not inform to the doctor as to who had assaulted him. Since, Kapil Kaushik was known to the Rahul so, Rahul could name Kapil Kaushik before the doctor. But, Rahul did not name any person who had assaulted to Rahul.
50. In the case in hand, the FIR has been registered on the statement of the Dharamvir Ex.PW5/A, recorded on dated 23.12.2011, wherein, he has stated that he was running a shop of chemist and his son Rahul also used to sit on the said shop on 22.12.2011 at about 8:25 PM and accused Kapil Kauhik who resides in Budh Vihar and who supplies the medicines to him for last 10 years, had come at his shop at 8.25 PM and took his son Rahul with him on the pretext of taking Gas cylinder and at about 8.45PM, this complainant had received telephonic call of his son Rahul, who had told to this complainant that someone SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 42/78 State Vs. Kapil Kaushik had stabbed him and Rahul asked him to come immediately. He has also stated that soon thereafter, he had received another telephonic call of a police personnel, who told that they were taking Rahul to BSA hospital and this complainant arrived in the BSA hospital where, his son Rahul was getting treatment and he found his son in the operation theater of said hospital and saw the injury on his neck, which appeared to have been caused with sharp edged weapon and no talk was held between this complainant and his son Rahul, as Rahul was unconscious and complainant also stated that he was not aware as to who had caused such injuries on the person of Rahul and it appeared to him that someone had caused said injuries with the intention to kill him.
51. Whereas, on dated 25.12.2011, the supplementary statement Ex.PW5/O of this witness was recorded, wherein, he has alleged that he accompanied to the police to the house of accused Kapil and got him arrested from his house and also deposed that accused Kapil had given disclosure statement Ex.PW5/F wherein, the accused Kapil is alleged to have confessed that he made a plan along with Bhura Malik, Badbu and Krishna and in accordance with his plan, he had shown Rahul while he took Badbu and Krishna on his motor-cycle and Krishna on the pretext of purchasing medicine, had made talk with Rahul and on dated 22.12.2011, he took Rahul on his motor-cycle at Bhalaswa Dairy, Delhi and Bhura and his other companions had snatched away Rs.1000/- from him, as per their plan and Kapil had gone away and Bhura Malik and Badbu had caught to the Rahul. It is also alleged that after parking the motor-cycle, Kapil had returned at the spot and at that time, Bhura had put the knife on the person of Rahul and Badbu and Krishna had caught to the Rahul and it was asked to Rahul that he should ask to his father to send Rs.30 lacs, to which, SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 43/78 State Vs. Kapil Kaushik Rahul had denied and then, Rahul was asked to say his father to send Rs.20 lacs and it is also alleged that Kapil had told that Rahul knew and recognized him, so, he should be killed and after saying so, Kapil had gone away from the spot and this witness Dharambir had also stated in his said statement, Kapil Kaushik had also stated that he could get the Bhura Malik arrested and motor-cycle bearing registration No. DL8SAN 8169 maker Hero Honda was seized and the spot was visited and the portion of the wall, where the stains of the blood were found, was also seized and concrete and earth control stained with the blood were also seized and separate parcels were also prepared and sealed with the seal of JKM and accused Kapil was searched vide memo Ex.PW-5/D and he was also arrested vide memo of arrest Ex.PW5/B and this witness has also stated that he had signed the documents regarding seizure of the same and at the instance of accused Kapil, Bhura Malik was also arrested and as per the disclosure statement of Kapil, the knife used in the commission of crime was hidden in the earth on the corner of the big drain (ganda nala) and he had also disclosed that he could get the other co-accused arrested and he could point out about the place of occurrence and this accused Kapil had also disclosed that he had thrown the clothes in the Ganda Naala. Accordingly, accused Bhura Malik was also arrested, his personal search was also conducted vide memo Ex.PW-5/E and disclosure statement Ex.PW-5/G of Bhura Malik was also recorded and who had disclosed that he had hidden the knife used in the commission of crime, on the corner of Kachchi road at Bhalaswa dairy and pointed out the place and got the knife recovered therefrom. Sketch of the knife was also prepared. He has also stated that parcel of the knife was also prepared and it was sealed with the seal of JKM and it was also seized vide seizure memo and this witness has also stated that he had signed thereon as witness and on the SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 44/78 State Vs. Kapil Kaushik identification Bhura Malik, Krishna and Badbu were also tried to be searched.
52. Whereas, Dharambir has been examined as PW-5 and he has deposed that he was running the shop of chemist at F-1/478, Shani Bazar Road, Sultanpuri, Delhi and his son Rahul also used to sit on his shop. He has correctly identified accused Kapil Kaushik in the court and deposed that accused Kapil Kaushik used to supply medicines at his shop for last 9-10 years. He has further deposed that on 22.12.2011, his son was present with him on the shop and at about 8.25PM, accused Kapil came at their shop and he took his son Rahul with him on the pretext of bringing gas cylinder. He has further deposed that thereafter, at about 8.45PM, he had received the phone call on his mobile phone from his son Rahul, who told him that 3-4 boys had caught him and stabbed him at bypass and that accused Kapil had ran away from there. He has further deposed that after sometime, he had received the phone call from the police on his mobile that somebody had stabbed his son Rahul and they were taking him to BSA hospital. He has further deposed that thereafter, he had reached at BSA hospital and found his son was admitted therein, who had sustained stab injury and he made inquiries from the doctor and at that time, his son was unconscious, so he could not talk to him. So, he could not know, as to who had caused injuries to him. He has further deposed that police also met him in the hospital and made inquiries from him and recorded his statement Ex.PW5/A. He has further deposed that he had also told to police that someone had stabbed and caused injuries to his son in order to kill him. He has further deposed that on next day, he again reached at police station and police had made inquiries from him and recorded his supplementary statement and he also told to police that accused SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 45/78 State Vs. Kapil Kaushik Kapil had taken away his son Rahul with him, on the pretext of taking gas cylinder and only he could tell, who had caused injuries to his son and he might also be involved in the occurrence. He has further deposed that at that time, police had taken his mobile number and police had also given their mobile number to him. He has further deposed that later on, police had told him that they had arrested accused Kapil and thereafter, he reached police station S.P. Badli and at that time, police had obtained his signatures on some filled papers. He had identified his signatures on memo of arrest of accused Kapil Ex.PW5/B, memo of arrest of accused Bhura Malik Ex.PW5/C, personal search of accused Kapil Ex.PW5/D, personal search of accused Bhura Malik Ex.PW5/E, disclosure statement of accused Kapil Ex.PW5/F, disclosure statement of accused Bhura Malik Ex.PW5/G, seizure memo of motorcycle No. DL8S AN 8169 Ex.PW5/H, pointing out memo of place of occurrence by accused Kapil Ex.PW5/I, pointing out memo of place of occurrence by accused Bhura Malik Ex.PW5/J, Sketch of chhuri Ex.PW5/K, seizure memo of chhuri Ex.PW5/L, seizure memo of blood stained cement masala Ex.PW5/M and seizure memo of earth control Ex.PW5/N. He has also identified the motorcycle bearing No. DL 8SAN 8169 Ex.P-1, as, the same, which was used by accused Kapil Kaushik at the time, he had taken his son with him. He has also correctly identified chhuri Ex.P-2 to be the same, which was shown to him by the police in the police station. He has also identified the plastic dibbi containing blood stained cemented masala Ex.P3, as the same, in which the blood cemented masala was kept from the wall near ganda nala. He has also identified the plastic dibbi containing earth control Ex.P4, as the same, in which the earth control was kept from the wall near ganda nala.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 46/78State Vs. Kapil Kaushik
53. Then, the Ld. APP for the state had sought permission to cross-examine this witness, as, he has resiled from his previous statement Ex.PW5/O and after hearing, the Ld. Predecessor of this court was pleased to allow the APP for the state to cross examine this witness. During the cross-examination by Ld. Addl. PP for the State, this witness has admitted it to be correct that on 25.12.2011 at about 1.15PM, IO SI Jai Kumar had again met him in BSA hospital and made inquiries from him and at that time, he had also recorded his supplementary statement. He has also admitted it to be correct that at that time, he had told the IO that he had searched about accused Kapil Kaushik, who resides at E-2/22, Budh Vihar, Phase-I, and in the night of 22/12/2011, he did not come to his house, so, he was fully confident that Kapil Kaushik, son of Nanak Chand Kaushik, resident of Budh Vihar, was involved in managing of attack on his son Rahul. He has also admitted it to be correct that he had told to the police in his statement that if Kapil Kaushik would be arrested, then the incident regarding the attack to kill his son could be solved and he knew accused Kapil, so, he could help the police in getting him arrested. He has admitted it to be correct that on 25.12.2011 in the noon time, from BSA hospital, he along with IO SI Jai Kumar, one Hawaldar and one constable had reached Budh Vihar, Phase-I, where IO had come to know that Kapil had reached at his house. He has denied that thereafter, they all reached at H.No.E-2/22, Budh Vihar, where accused Kapil was called by the IO and Kapil had opened the door or that when Kapil came out from the door of his house, he had identified him as Kapil. He has also denied that at his instance, accused Kapil was apprehended by the IO and thereafter, he was interrogated by the IO, wherein, he had told to the IO that he was supplying medicines for the last 7-8 years and he also used to supply medicine at the Rahul Medical Store and he had SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 47/78 State Vs. Kapil Kaushik also told about their financial condition and for this reason, Kapil had negotiated with Bhura Malik and disclosed his plan to him, to which, he was ready. He has denied that Kapil had further disclosed that one day, from Badli Bus Stand, Kapil had shown Rahul to Bhura and his two associates Badbu and Krishna by using his motorcycle and TSR in Sultanpuri and at that time, Krishna had talk with Rahul on the pretext of medicine and as per the programme, on 22/12/2011, on his motorcycle No. DL-8SAN-8169, he took Rahul to Bhalaswa Dairy in between Ganda nala and Khatte towards broken wall of dirty drain, where Bhura had met with his associates and as per plan, they had snatched Rs.1000/- from Kapil and at that time, Bhura Malik and Badbu had caught Rahul and thereafter, Kapil proceeded from there. He has also denied that Kapil had also disclosed that after parking the motorcycle, when he came back, he had seen that Bhura had pointed Chhura on Rahul and Badbu and Krishna had caught hold of Rahul and at that time, Kapil was asked to arrange Rs.30 lacs, who denied the same. He has denied that at that time, Kapil had also disclosed that Rahul knew him well, so, he should be killed and by saying so, he left and accordingly, they did so, but luckily, Rahul escaped. He has also denied that at that time, Kapil had also told to the police that he could also point out the place of occurrence and also got recovered the motorcycle and he could also got Bhura arrested. He has further denied that thereafter Kapil was arrested by the IO and his personal search was conducted or that at that time,he had signed the memo of arrest and personal search memo. He has denied that at that time, police had also recovered the motorcycle No. DL-8SAN-8169 make Hero Honda and taken the same into possession. He has also denied that after bringing the motorcycle at the police station, he along with police and accused Kapil had accompanied to Bhalaswa Dairy, Northern wall of ganda nala, which SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 48/78 State Vs. Kapil Kaushik was lying broken from a place and while pointing out the place, at that time, blood was found in the western side of broken wall, photographs of which were taken with the mobile camera and thereafter, with the help of iron patti, blood stained cemented masala along with earth control was removed and at that time, these were kept in two plastic dibbis and sealed with the seal of JKM and were taken into possession at the spot by the IO. He has denied that he had signed the memo of arrest, personal search memo, seizure memo of Motorcycle and disclosure statement of accused Kapil and the seizure memo of blood stained cement and earth control only after the same were prepared by the police at the place of arrest of accused and the place of occurrence. He has also denied that after that, at the instance of accused Kapil, accused Bhura Malik, son of Nanhe Malik was apprehended from Durga chowk, Bhalaswa Dairy or that he was also interrogated by the IO and he also reiterated the same facts, as told by accused Kapil. He has also denied that at that time, accused Bhura Malik had told that he had hidden the offending chhuri in the mud near the corner of nala, Bhalaswa Road and that on the next day, he had thrown his wearing pant and jacket in the ganda nala. He has denied that at that time, accused Bhura Malik was arrested by the IO and he had signed his memo of arrest, personal search memo and disclosure statement only after the same were prepared by the police at the place of his arrest. He has also denied that accused Bhura Malik had also pointed out the place of occurrence and IO had prepared the site plan and that accused Bhura Malik had pointed out corner of Kachchi sadak, Nukkad in depth, near Bhalaswa Dairy road and had produced one chhuri. He has denied that IO had prepared the sketch of the chhuri, which was also measured and thereafter, IO had prepared the pullanda of chhuri and sealed with the seal of JKM and seized the same in his presence. He has denied SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 49/78 State Vs. Kapil Kaushik that he had signed the seizure memo and sketch of chhuri only after the same were prepared by the police in his presence at the place of recovery. He has also denied that he had stated all these facts in his another supplementary statement dated 25/12/2011. This witness was also confronted with his statement Ex.PW5/O, wherein all these facts are so recorded. He has further denied that after the recovery of chhura, police had tried to find out accused Krishna and Badbu at the instance of Bhura Malik, but they could not be found and thereafter, at about 8.30PM, they had reached at PS Samaipur Badli, where his supplementary statement Ex.PW5/O was recorded by the IO. He has denied that accused Bhura Malik was got arrested by accused Kapil in his presence and thereafter, accused Bhura Malik had got recovered the offending chhura. He has denied that he had been won over by accused Kapil Kaushik and Bhura Malik, so he had deposed falsely and did not explain the true facts, at their instance. He was also cross- examined by Ld. Counsel for accused and during his cross- examination, he has deposed that he was informed about the incident by the police at about 9.30PM through telephone, on his mobile phone and before that, he had received the call from his son just five minutes before receiving the call from police, regarding the incident and he told that Kapil had fled away. He has admitted it to be correct that in the call received from his son, he had not told the name of accused persons. He has further deposed that after receiving the phone call from the police, he had reached in the hospital as it was told that they were taking his son to hospital. He has further deposed that he did not talk with his son in the hospital as he was speaking with very difficulty. He has further deposed that at that time, his son was semi-conscious but his son had identified him. He has further deposed that his son was discharged after about 5-6 days. He has denied that he had reported SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 50/78 State Vs. Kapil Kaushik the false facts to the police or that his son had told him certain false facts, which he had told to the police. He has further deposed that he had signed the documents 4-5 times and he had not told the names of accused persons except Kapil to the police. He has denied that he had deposed falsely. Thus, from the testimony of this witness, it is clear that the FIR in the case in hand was registered on the statement Ex.PW5/A of this witness recorded on dated 23.12.2011, wherein,he has also stated that he was not aware as to who had caused such injuries on the person of Rahul and it appeared to him that someone had caused said injuries with the intention to kill him.
54. Whereas, at the time of recording of his supplementary statement Ex.PW5/O on dated 25.12.2011 by the IO, he has made so many improvements and since, this witness in his statement Ex.PW5/A has deposed that he was not aware as to who had caused injuries on the person of Rahul and only on the basis of the suspicion, he is alleged to have got Kapil Kaushik arrested, but at the time of his examination in the court he had given contradictory statement to his previous statement Ex.PW-5/A and Ex.PW-5/O.
55. Since, this witness during his examination in chief was declared hostile and he was cross-examined by Ld. Addl. PP for the State and during his cross-examination by the Ld. Addl. PP for the State, he has failed to support the case of the prosecution, as this witness has denied that accused Kapil Kaushik was apprehended at his instance. He has also denied to have signed the memo of arrest Ex.PW5/B, personal search memo Ex.PW5/D and disclosure statement Ex.PW5/F of the accused Kapil Kaushik. He has also denied that the Bhura Malik had told that he had hidden the chhuri (knife) in the mud SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 51/78 State Vs. Kapil Kaushik near the corner of Nala at Bhalaswa Road. Thus, the alleged recovery of the knife and disclosure statement of Bhura Malik also becomes doubtful. He has also denied his signatures on the sketch of chhuri (knife) and his statement is found to be inconsistent, improved and embellished and since this witness in his statement Ex.PW5/A has deposed that his son had told him that someone had stabbed him and thus, from such statement Ex.PW5/A, it is clear that the injured Rahul did not tell the name of any of the person, to his father Dharambir (PW-
5), who had stabbed him. Whereas, at the time of recording of his statement in the court, he has deposed that on dated 22.12.2011 at 08:45PM he recieved a phone call of Rahul who told him that 3-4 boys had caught him and stabbed him and Kapil had fled away and since the PCR form Ex.PW4/A, reveals that it is mentioned therein that, "EK AADMI SE JHAGDA, INJURED KO TWO KNIFE LAGI HAI" is mentioned therein and caller of the 100 number was Mr. Maninderjeet Singh, as per the PCR form Ex.PW4/A, but IO did not bother to record the statement of Maninderjeet Singh. Testimony of this witness is also inconsistence to the testimony of PW13 and it is also improved, embellished and self contradictory testimony of this witness, so, it is held to be suspicious, so the accused cannot be convicted on the basis of such such suspicious testimony.
56. Whereas, Rahul Dahiya has been examined as PW-13 and he has deposed that he had resided at F-1/478, Sultanpuri, Delhi along with his family and his father was running a shop in the name of Rahul Medicos Store at the said address and he used to help his father in running the said Medical store. He has further deposed that he knew accused Kapil Kaushik, as, he used to supply medicines at their said shop for last 9-10 years from the date of incident. He has further SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 52/78 State Vs. Kapil Kaushik deposed that on 22.12.2011, at about 8.30PM, accused Kapil Kaushik came at their said shop and asked his father to send Rahul with him to bring a gas cylinder and as accused was well known to them, his father asked him to accompany accused Kapil and then, they both left the shop on the motorcycle of Kapil and Kapil took him to Kachchi sadak at Khatta, Bhalaswa Dairy Ganda Nala, where, three persons were already standing and accused Kapil stopped the motorcycle near them. He has further deposed that all the said three persons took out their knives ie one knife each and put the same on his abdomen and frisked him and took his mobile phone and the money and thereafter, they all told him to inform his father to bring Rs.30 lacs. He has further deposed that he asked them to hand over his mobile to him to talk to his father and they handed over his mobile to him, but he was very much perplexed. So, he could not speak. He has further deposed that accused Kapil Kaushik started beating him and remaining three accused started giving knife blows targeting his abdomen, but, he managed to stop the blows with his both the hands and he had suffered injuries on his both the hands. He has further deposed that accused Bhura Malik, gave a knife blow on his neck and then, he was made to lie on the ground in prawn position and then, accused Bhura Malik started slitting his neck with the knife and at that time, remaining three accused had caught him. He has further deposed that all this had happened behind the broken wall between the ganda nala and kachi sadak and believing him to be dead, they all left from there, but he was conscious and due to the fear of accused persons, he did not dare to come on KACHCHI SADAK via broke wall. He has further deposed that he had crossed the ganda nala through a huge pipe which was running across the ganda nala and reached on the by-pass road which was on the other side of nala. He has further deposed that there at the bus SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 53/78 State Vs. Kapil Kaushik stand, he asked one person to give his phone to him and he had wrapped his neck with his wearing T-shirt. He has further deposed that he had informed the police as well as his father through the cell phone of that person and PCR reached there and got him admitted in the hospital. He has further deposed that his father and one friend of his father reached in the hospital and remained admitted in the hospital till 28.12.2011. He has further deposed that on 09.01.2012, he had identified accused Kapil Kaushik, Ashwani @ Krishna and Bhura Malik at Rohini Courts and on that day also, his statement was recorded by the police. He has further deposed that he could not identify accused Deepak @ Badbu in judicial TIP on 22.09.2014, due to nervousness, but, he had identified him on 25.09.2014 at Rohini Court Complex, being the person, who had given knife blows to him on 22.12.2011 and had caught hold him along with accused Kapil Kaushik and Ashwani, when accused Bhura Malik had inflicted knife on his neck with intend to kill him. He has also identified the motorcycle bearing registration No. DL 8SAN 8169 Ex.P-1 as the same motorcycle, on which, accused Kapil had taken him on 22.12.2011 and chhura Ex.P2 as the same big knife which was used by accused Bhura Malik in the commission of present offence. He has voluntarily deposed that he was again having apprehension of dire consequences at the hands of accused persons and their relatives. He was also cross-examined by Ld. Counsels for the accused and during his cross-examination, he has denied that he had not disclosed the name of any person to his father when he had telephoned him. He has further denied that in this case, he had deposed at the instance of police or that no such incident had taken place with him or that his deposition is an after-thought. He has further deposed that he had stated to the IO that the accused persons have knives in their hands at the time of offence. He was confronted with his SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 54/78 State Vs. Kapil Kaushik statement Ex.PW13/D-1, where it was not so recorded. He has further deposed that his statement was recorded by the police at Ambedkar Hospital, where, he was admitted, but he did not remember the date of his said statement. He has denied that he had not made any statement to the police. He has further denied that he had not stated to the police about the accused persons having demanded any amount in lieu of his release. He has further denied that none of the accused persons was present at the alleged spot on the alleged date of incident. He has further deposed that he had stated in his statement recorded by the police that accused persons put the knives on his abdomen. He was confronted with his statement Ex.PW13/D-1, where it was not so recorded. He has admitted it to be correct that accused persons did not make any ransom call to his father. He has further deposed that he had not stated the fact that accused Kapil Kaushik gave beatings to him in his statement Ex.PW13/D-1. He has denied that he had concocted a story before the court on 10.07.2015 or that he had identified the accused Bhura Malik and Ashwani as he had seen both of them on his number of visits in the court in connection with this case. He has denied that on 09.01.2012, he did not visit the Rohini courts or that he did not identify any of the accused on that day or that he got his said statement recorded in connivance with the IO of this case. He has denied that he had not joined the investigation of this case with the police or that he had deposed falsely or that accused persons were falsely implicated at his instance or that he had given false statement to the police or that he had falsely implicated accused Kapil Kaushik in this case due to previous enmity. He has admitted it to be correct that in his statement Ex.PW13/D1, he had not stated about the facial as well as physical description and the clothes worn by three accused persons at the time of incident other than Kapil Kaushik. He has admitted it to be correct SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 55/78 State Vs. Kapil Kaushik that the blood which was oozing out from his neck, stained his entire clothes. He has deposed that he never handed over the blood stained clothes worn by him at the time of incident to the police officer/IO of this case. He has admitted it to be correct that he had never seen the accused persons other than the Kapil Kaushik prior to the incident. He did not know whether his father was following up the case with the IO or not. He has deposed that he personally used to visit the police station on numerous occasion to know the proceedings and development in his case. He has admitted it to be correct that IO assured that once the accused persons were apprehended, he will call him in the police station. He has admitted it to be correct that as and when accused persons were got apprehended by the IO, IO used to call him to show him the accused persons and ascertained whether the accused persons were the same persons who were involved in this case. He has admitted it to be correct that he was called in Rohini Jail to identify the accused Deepak @ Badbu in TIP proceedings, but, he was not able to identify accused Deepak @ Badbu as one of the assailant in the present case, in the TIP. He has proved the application Ex.PW13/D1 for TIP moved by the IO, order dated 18.09.2004 Ex.PW13/D2 of Ld MM, the proceedings of TIP of accused Deepak conducted at District Jail Rohini, Delhi bearing signatures of IO, the witness and the participants of TIP as well as the statutory certificate as Ex.PW13/D3 and the application Ex.PW13/D4 of IO for supply of copy of proceedings and order thereon. He has further deposed that he did not make complaint or informed the Magistrate who was conducting the TIP proceedings of accused Deepak @ Badbu that due to nervousness, he was not able to identify the accused Deepak @ Badbu. He has further deposed that he did not go to the IO to inform him on 22.09.2014 to 25.09.2014 that due to nervousness, he was unable to identify accused Deepak @ Badbu, SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 56/78 State Vs. Kapil Kaushik as one of the assailants. He has admitted it to be correct that on 25.09.2014, IO informed him that out of four accused persons, one was Deepak @ Badbu, who was one of the assailants in the present case. He has denied that accused Deepak was not present at the time of incident or that he was taking a false plea of being nervous at the time of TIP proceedings and not identified the accused Deepak. He has denied that he did not mention the physical and facial description of accused Deepak in any of his statement as Deepak was not present there. He has denied that he had deposed falsely or that he was identifying accused Deepak at the instance of IO. Since, the perusal of the record reveals that this occurrence had taken place on 22.12.2011 at 8.30pm and this witness Rahul is alleged to have telephonically informed to his father that someone had stabbed him. Since, this witness was aware of the name of accused Kapil Kaushik, so, he could tell the name of Kapil Kaushik, had the Kapil Kaushik been involved in the commission of the offence. But, this witness did not tell the name of any person to his father and in view of the same, the father of this witness had told to the police in his statement Ex.PW5/A that he was not aware, as to who had caused injuries on the person of this witness. The perusal of MLC of this injured Ex.PW9/A reveals that this witness was taken in the Dr. Baba Saheb Ambedkar Hospital on 22.12.2011 at 9.30PM with the alleged history of assault and this witness was conscious and oriented at that time. He did not tell the name of any accused to the doctor and since this witness was conscious, so, the IO could record his statement. No doubt that the MLC of this witness reveals that on dated 22.12.2011, 23.12.2011 and 24.12.2011, this witness was found to be unfit for making statement and the first statement Ex.PW13/D-1 of this witness was recorded by the IO, on 04.01.2012, but the delay in recording of such statement of injured has SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 57/78 State Vs. Kapil Kaushik not been explained. The perusal of the statement of this witness Ex.PW13/D-1 recorded by the IO on 04.01.2012, reveals that this witness has stated therein that on dated 22.12.2011, at 8.20PM, accused Kapil Kaushik had come on his shop and told to the father of this witness that he was to go for taking gas cylinder and asked him to send this witness with him and accordingly, this witness was sent with accused kapil Kaushik on his motorcycle and when at about 8.25PM, they arrived at Khatta Bhalaswa Dairy, Ganda Nala, kachchi Road, three boys had come and stopped the motorcycle of Kapil on which he was sitting as pillion rider and the said boys had snatched away Rs.1000/- from Kapil Kaushik and two boys had caught this witness and took him behind the broken wall and third boy had also come and Kapil had fled away from there on his motorcycle and two boys had caught him and third boy had taken out a long knife and after putting him in the fear, he had asked him to demand Rs.30 lacs from his father, otherwise, this witness would be eliminated by them and this witness had told him that his father would not give even Rs.10/- and the said boy had asked to this witness to demand Rs.20 lacs from his father and an altercation took place for about 4-5 minutes and this witness had seen accused Kapil Kaushik was sitting behind the broken wall and it is also alleged by this witness in his said statement that accused kapil Kaushik had called the said boy, who was having knife in his hand, as Bhura and asked him, "BHURE YE MUJHE PEHCHANTA HAI, ISKA KAAM TAMAAM KAR DO" and soon thereafter, Bhura had given knife blow on his neck and this witness fell down and they believed him to be dead, the accused fled away from the spot and this witness has also stated that he stood and went towards GTK Road, Punjab Roadways Bus Stand and one man had phoned to the police and he did not remember as to from which phone, he had informed to his father about such SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 58/78 State Vs. Kapil Kaushik incident of stabbing to him. He has also stated that staff of PCR had admitted him in the hospital and he remained admitted till 28.12.2011. He has also stated that he knew Kapil Kaushik, whereas, he could identify to the said three boys, who had caught him and who had caused stab injuries on his person and accused Kapil had called him Bhura. The perusal of statement of Rahul Dahiya Ex.PW13/A reveals that he has alleged therein that Kapil Kaushik had exhorted to the accused who was having knife in his hand that, "BHURE YE MUJHE PEHCHANTA HAI, ISKA KAAM TAMAAM KAR DO" and he has alleged that only one accused was having knife. But, at the time of his examination in the court, Rahul has started alleging that three accused took out their knives and this witness has alleged that accused Kapil Kaushik started beating him. This witness in his statement Ex.PW13/A has alleged that after the occurrence, he arrived at GTK Road, Punjab Roadways Bus Stand and one man phoned to the police and PCR form Ex.PW4/A also reveals the name of Maninderjeet Singh who had phoned to the police at 100 number and in PCR form (report received from the Van), it is mentioned that injured Rahul had a scuffle with one man and suffered two knife blows and it would be told to the PCR Van Staff either by the injured Rahul or the caller Maninderjeet Singh, so, lapse are found on the part of the IO. If the "Report received from the Van" as mentioned in PCR Form Ex.PW4/A is looked into, then, this Rahul had suffered injuries from knife in a scuffle with one man and who was that "one man", it remained a mystery as IO did not bother to contact with Maninderjeet Singh who had dialled 100 number to call the police. Had the IO recorded the statement of Maninderjeet Singh, the truth could come before the court. This Rahul has stated in his statement Ex.PW13/A that after the occurrence, one man phoned to the police. But at the time of his examination in the court, he has stated that SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 59/78 State Vs. Kapil Kaushik he had taken the phone from one person and phoned to the police and his father. Thus, the statement of this witness is contradictory to his previous statement and inconsistent to the contents of PCR form Ex.PW4/A. This witness has admitted in his examination in chief that he could not identify Deepak @ Badbu in the judicial TIP also and since this witness during his cross-examination has admitted that when the accused person were got apprehended by the IO. He used to call in police station, so the identification of accused Deepak @ Badbu and Judicial TIP of accused Bhura Malik and Ashwani also become doubtful. As, the accused were shown to this witness by the IO in the police station, so, the judicial TIP of accused Bhura Malik and Ashwani are inconsequential. Since, this witness has admitted that during his cross- examination that on 25.09.2014, IO had informed him that Deepak @ Badbu is one of the assailants in the present case. So, the identification of the accused Deepak by this prosecution witness (Rahul) in the court at the instance of IO, cannot be ruled out. Since, the charges against all the accused were framed u/s.364-A/34 of IPC, so, it was incumbent on the part of the prosecution to prove that a ransom was demanded after kidnapping/abduction of the victim. But, as this Rahul (PW-13) during his cross-examination has admitted it to be correct that the accused persons did not make any call to the father of Rahul for ransom. So, I am inclined to hold that the prosecution has failed to discharge it's onus to prove the offence punishable u/s. 364-A / 34 of IPC against all the accused. Since the occurrence is alleged to have taken place on dated 22.12.2011 at 8.30PM and the statement of Rahul (injured) was recorded by the IO on dated 04.01.2012 and delay in recording the statement of this material witness has not been explained. So, in the absence of any cogent explanation for such delay, the probabilities of introduction of an after-thought and colourful version by this witness SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 60/78 State Vs. Kapil Kaushik cannot be ruled out. Since, the testimony of this witness is self contradictory, inconsistent, improved and embellished, so, the same does not inspire any confidence.
Since, in the case in hand occurrence is alleged to have taken place on dated 22.12.2011 at about 8:30 PM and FIR was registered on the statement of Dharambir Ex-PW5/A dated 23.12.2011 at 2.00AM, who is the father of the injured Rahul. Dharambir (complainant) has stated therein that he was not aware as to who had caused such injuries on the person of the Rahul and another statement Ex-PW5/O of Dharambir was recorded by the IO on 25.12.2011 wherein, he has alleged that he accused Kapil arrested from his house and also alleged that Kapil and Bhura Malik had made disclosure statements and in furtherance of disclosure statemnet of Kapil Kaushik and alleged that on dated 22.12.2011, Kapil took Rahul on his motor- cycle at Bhalaswa Dairy, Delhi and Bhura and his other companions had snatched away Rs.1000/- from him, as per their plan and Kapil had gone away and Bhura Malik and Badbu had caught to the Rahul. It is also alleged that Bhura had put the knife on the person of Rahul and Badbu and Krishna had caught to the Rahul and it was asked to Rahul that he should asked to his father to send Rs.30 lacs, to which, Rahul had denied and then, Rahul was asked to say his father to send Rs.20 lacs and it is also alleged that Kapil had told that Rahul knew and recognize him, so, he should be killed and after saying so, Kapil had gone away from the spot and this witness Dharambir had also stated in his said statement, Kapil Kaushik had also stated that he could get the Bhura Malik arrested and motor-cycle bearing registration No. DL8SAN 8169 maker Hero Honda was seized and also alleged that Kapil was searched vide memo PW5/D and he was also arrested vide memo of SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 61/78 State Vs. Kapil Kaushik arrest PW5/B and this witness has also stated that he had signed the documents regarding seizure of the same and at the instance of accused Kapil, Bhura Malik was also arrested and as per the disclosure statement of Kapil, the knife used in the commission of crime was hidden in the earth on the corner of the big drain (ganda nala) and he had also disclosed that he could get the other co-accused arrested and he could point out about the place of occurrence and this accused Kapil had also disclosed that he had thrown the clothes in the Ganda Naala. Accordingly, accused Bhura Malik was also arrested, his personal search was also conducted vide memo Ex.PW5/E and disclosure statement Ex.PW5/G of Bhura Malik was also recorded and who had disclosed that he had hidden the knife used in the commission of crime, on the corner of Kachchi road at Bhalaswa dairy and pointed out the place and got the knife recovered therefrom. Sketch of the knife ExPW5/K was also prepared. He has also stated that parcel of the knife was also prepared and it was sealed with the seal of JKM and it was also seized vide seizure memo Ex.PW5/L and this witness has also stated that he had signed thereon as witness and on the identification Bhura Malik, Krishna and Badbu were also tried to be searched.
57. Dharamvir (Complainant) had alleged that he suspected that accused Kapil Kaushik could be having hand in the occurrence with his son. But, he failed to show any cogent basis for such suspicion. Since, this complainant has alleged that on the date of occurrence his son Rahul had gone with Kapil Kaushik, but, Rahul had telephonically contacted with his father, soon after the occurrence with the Rahul. Had Rahul been caused injuries by Kapil Kaushik or other accused, he could tell to his father, or to the staff of the PCR, or to the Doctor, who had medico legally examined to Rahul, soon after the occurrence, but, SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 62/78 State Vs. Kapil Kaushik Rahul did not name any of the accused during his telephonic talk with his father nor he had told to the staff of the PCR and also to the doctor, as to who had assaulted him. The statement of Dharambir Ex.PW5/A was recorded by the police on dated 23.11.2011 at 2:00 AM and at the time of recording this said statement, complainant Dharambir was not aware, as to who had caused injury on the person of his son Rahul PW13. Supplementary statement of Dharambir Ex.PW5/O of PW5 was recorded on dated 25.12.2011. whereas, the statement of Rahul PW13/A was recorded by the IO on dated 04.01.2012. Since, Rahul was conscious and oriented at the time of his medical examination in the BSA Hospital on dated 22.12.2011 at 9:30 PM so, Rahul could tell to the doctor about the name of assailant, who had medically legally examine to the injured Rahul. No doubt that MLC of Rahul Ex.PW-9/A reveals that on 22.12.2011, 23.12.2011 and on 24.12.2011, Rahul was unfit for making statement. But, Rahul did not come forward to make any statement after 25.12.2011 nor IO bothered to record the statement of Rahul promptly after the occurrence. Prosecution has failed to explain in delay in recording the statement of Rahul. Rahul was not unfit for making statement on 25.12.2011 on ward but, no statement of Rahul was recorded and statement of Rahul was recorded on 04.01.2012 and the delay in recording the statement of Rahul which has not been explained. So, the story of the prosecution becomes doubtful.
58. As their Lordship of High Court Of Delhi in case Sonu Arora Vs. State. Crl. A. 241/1997 was pleased to observe "In his cross-examination, Lalu Prasad stated that he had put Zaheer in PCR van and blood stains had come on his shirt. He also stated that the blood stains were shown by him to the police but his clothes were not seized by the police. There is no explanation for not SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 63/78 State Vs. Kapil Kaushik seizing the bloodstained clothes of Lalu Prasad despite his having shown them to the police. The failure of the Investigation Officer to seize the clothes of Lalu Prasad is an indication that, in fact, he had not witnessed the actual stabbing and had not put Zaheer in PCR van, as claimed by him. Had he done so, the Investigating Officer would definitely have seized his bloodstained shirt."
"It would also be pertinent to note here that though Lalu Prasad claims to be a friend of deceased Zaheer and also claims to have accompanied him to AIIMS in PCR van, his name does not find mention in the MLC of the deceased against the name of relative/friend and it is name of HC Virender Singh which has been shown against the relative/friend column of the MLC. If Lalu Prasad had accompanied deceased Zaheer to the hospital, as claimed by him, his name and not the name of the police Official would have been recorded against the column of 'relative or friend' of the injured brought to the hospital. These facts and circumstances lead to a strong inference that either Lalu Prasad had not witnessed this incident at all or he had left when the quarrel intensified and that is why, he did not meet the police officer either on the spot or in the hospital and his shirt was not seized by the police."
"Also, had Lalu Prasad witnessed the stabbing of Zaheer and Nizam, there would have been no contradiction, in the statement given by him to the police on the one hand, and his deposition during trial on the other hand, with respect to the core part of his testimony i.e who had stabbed Zaheer and who had stabbed Nizam."
"According to the Investigating Officer, though Lalu Prasad had met him on the spot at about 1:30 am and he had also obtained signatures of the witness on the memos prepared on the spot, his statement under Section 161 Cr. P. C. was recorded by him only at 5:30 PM. There is SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 64/78 State Vs. Kapil Kaushik absolutely no explanation from the prosecution for his abnormal delay in recording the statement of Lalu Prasad."
"Ex. PW 17/A is the site plan stated to have been prepared by the IO in the night of 18/19 October, 1993 at the instance of Lalu Prasad. The site plan indicates point 'G' as the place where Lalu Prasad had fight with accused persons and was beaten in front of Paan shop of Raj Karan by Mahmood and Anis @ Munna @ Nanhey. It has also been noted in the plan that Lalu Prasad and Raj Karan saw the incident from the rear point 'G'. These nothings on the site plan show that the Investigating Officer had already examined Lalu Prasad in respect of the incident in question. Without questioning him, the Investigating Officer could not have known the point where Lalu Prasad had fight with the accused persons and was beaten in front of the Paan Shop of Raj Karan. Similarly, without talking to him the Investigating Officer could not have known the place from where he had seen the incident taking place. No explanation, however, has been given by the prosecution for recording the statement of Lalu Prasad at 5:30 pm, i.e., after a gap of about 16 hours from the time he met the Investigating Officer. The unexplained delay in recording the statement of Lalu Prasad need to be viewed in the light of the fact that he did not meet the police officer, SI Raj Singh, either on the spot when he reached there on receipt of information from Police Control Room or in the hospital, despite his claim that he had accompanied PCR Officials to the hospital in their van and had returned to spot with them in the same van and no official on duty in PCR van has been produced to prove that Lalu Prasad had met them on the spot, had accompanied them to AIIMS and then returned to spot with them in their van. The delay also needs to be viewed in the light of the fact that there is material contradiction in the statement given by Lalu Prasad to the police and his statement in the court as SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 65/78 State Vs. Kapil Kaushik regards who stabbed whom Raj Karan."
"As held by the Supreme Court in State of UP V. Mundrika and Ors. MANU/SC/0786/2000: (2001) 9 SCC 346, the unexplained delay in recording of statement of material eye-witness throws a serious doubt as to whether he was really an eye-witness or not. If the delay in recording the statement of eye-witness remains unexplained, the inference is that either he was not an eye witness or the version of the incident given by him was a fabricated version. In Maruti Rama Naik v. State of Maharashtra MANU/SC/0684/2003:(2003) 10 SCC 670, the witness examined as PW-3 was examined by police after one day of the incident. The explanation given by the Investigating Officer with regard to the delay in recording his statement was that the witness was injured and had to be taken to Bombay and brought back to Panvel for treatment. Considering the nature of his injury and the opportunity available to the Investigating Officer to record his statement, Supreme Court rejected the explanation and disbelieved the witness."
"In the present case, no attempt at all has been made by the Investigating Officer to explain the abnormal delay of 16 hours in recording the statement of Lalu Prasad despite his being available to the police and his signatures having been taken on the memos alleged to have been prepared on the spot. The delay on the part of the Investigating Officer in recording the statement of Lalu Prasad when considered in the light of the fact that there is material contradiction in his statement to the police and his deposition in the court as to who had a stabbed whom, there was no visible injury on the person of Lalu Prasad despite the incident having started on account of an altercation between him an accused Mahmood, the version of the incident given by him as regards the role attributed to the appellant Sonu is contradictory to the version recorded in the brief facts prepared by the Investigating SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 66/78 State Vs. Kapil Kaushik Officer on 20th October, 1993. He did not meet the investigating Officer either in the hospital or at the spot, his clothes were not been seized despite his assertion that he had shown bloodstained clothes to the Investigating Officer and Raj Karan, Paanwala, has not supported his claim regarding his (Raj Karan's) being present at his sop creates, serious doubt on the truthfulness of the deposition of this witness. There is a strong probability of Lalu Prasad having left the spot before the stabbing took place. That also explains his not having met the Investigating Officer either in the hospital or at the spot, no bloodstained clothes of this witness having been seized, contradiction being found in his statement, as to who had stabbed whom and absence of any role attributed to the appellant Sonu in the brief facts recorded by the Investigating Officer on 20th October, 1993".
59. As their Lordship of the Supreme Court in case State of UP V. Mundrika and Ors. MANU/SC/0786/2000: (2001) 9 SCC 346 had observed that, "the unexplained delay in recording of statement of material eye- witness throws a serious doubt as to whether he was really an eye- witness or not . If the delay in recording the statement of eye-witness remains unexplained, the inference is that either he was not an eye witness or the version of the incident given by him was a fabricated version. In Maruti Rama Naik v. State of Maharashtra MANU/SC/0684/2003:(2003) 10 SCC 670, a witness examined as PW
-3 was examined by police after one day of the incident. The explanation given by the Investigating Officer with regard to the delay in recording his statement was that the witness was injured and had to be taken to Bombay and brought back to Palwal for treatment. Considering the nature of his injury and the opportunity available to the Investigating SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 67/78 State Vs. Kapil Kaushik Officer to record his statement, Supreme Court rejected the explanation and disbelieved the witness."
"In the present case, no attempt at all has been made by the Investigating Officer to explain the abnormal delay of 16 hours in recording the statement of Lalu Prasad despite his being available to the police and his signatures having been taken on the memos alleged to have been prepared on the spot. The delay on the part of the Investigating Officer in recording the statement of Lalu Prasad when considered in the light of the fact that there is material contradiction in his statement to the police and his deposition in the court as to who had a stabbed whom, there was no visible injury on the person of Lalu Prasad despite the incident having started on account of an altercation between him an accused Mahmood, the version of the incident given by him as regards the role attributed to the appellant Sonu is contradictory to the version recorded in the brief facts prepared by the Investigating Officer on 20th October, 1993. He did not meet the investigating Officer either in the hospital or at the spot, his clothes were not been seized despite his assertion that he had shown bloodstained clothes to the Investigating Officer and Raj Karan, Paanwala, has not supported his claim regarding his (Raj Karan's) being present at his sop creates, serious doubt on the truthfulness of the deposition of this witness. There is a strong probability of Lalu Prasad having left the spot before the stabbing took place. That also explains his not having met the Investigating Officer either in the hospital or at the spot, no bloodstained clothes of this witness having been seized, contradiction being found in his statement, as to who had stabbed whom and absence of any role attributed to the appellant Sonu in the brief facts recorded by the Investigating Officer on 20th October, 1993."SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 68/78
State Vs. Kapil Kaushik
60. Their Lordship of Supreme Court of India in case Harbeer Singh & Ors. Vs. Sheeshpal & Ors. MANU/SC /1348/2016 was pleased to observe "We have given careful consideration to the submissions made by the parties and we are inclined to agree with the observations of the High Court that PW 3 and PW 9 were not witnesses to the alleged conspiracy between the accused persons since not only the details of the conversation given by these two prosecution witnesses were different but also their presence at the alleged spot at the relevant time seems unnatural in view of the physical condition of PW9 and the distance of Sheeshpal's Dhani from Sikar road. Besides, it appears that there have been improvements in the statements of PW3. The Explanation to section 162 Code of Criminal Procedure provides that an omission to state a fat or circumstance in the statement recorded by a police officer Under Section 161 Code of Criminal Procedure, may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, while it is true that every improvement is not fatal to the prosecution case, in cases where an improvement creates a serious doubt abut the truthfulness or credibility of a witness, the defence may take advantage of the same.
[See Ashok Vishnu Davare v. State of Maharashtra MANU/SC/0126/2004:(2004)9 SCC 431; Radha Kumar v. State of Bihar (now Jharkhand) (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) and Ors. v. State of Maharashtra MANU/SC/0947/2010: (2010) 13 SCC 657 and Baldev Singh v. State of Punjab MANU/SC/0170/2014 :
(2014) 12 SCC 473]. In our view, the High Court had rightly considered these omissions as material omissions amounting to contradictions SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 69/78 State Vs. Kapil Kaushik covered by the Explanation to Section 162 Code of Criminal Procedure.
Moreover, it has also come in evidence that there was a delay of 15-16 days from the date of the incident in recording the statements of PW 3 and PW 9 and the same was sought to be unconvincingly explained by reference to the fact that the family had to sit for shock meetings for 12 to 13 days. Needless to say, we are not impressed by this explanation and feel that the High Court was right in entertaining doubt in this regard."
"As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police Under Section 161 of code of Criminal Procedure. In the present case, the date of occurrence was 21.12.1993 but the statements of PW 1 and PW 5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW 6 was recorded on 26.12.1993 while the evidence of PW 11 was recorded after 10 days of incident , i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The court may relay on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court."
[See Ganesh v. State of Maharashtra MANU/SC/0506/1992 : (1992) 3 SCC 106; Mohd. Khalid v. State of W. B. MANU/SC/0722/2002: (2002) 7 SCC 334;Prithvi (Minor) v. Mam Raj and Ors. MANU/SC/0143/2004:
(2004) 13 SCC 279 and Sidhartha Vashishth @ Manu Sharma v. State (NCT of Delhi) MANU/SC/0268/2010 : (2010) 6 SCC1]"
61. However, Ganesh Bhavan Patel v. State of Maharashtra MANU/SC/0083/1978: (1978) 4 SCC 371, "is an authority for the SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 70/78 State Vs. Kapil Kaushik proposition that delay in recording of statements of the prosecution witnesses Under Section 161 Code of Criminal Procedure, although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case [See also Balakrushna Swain v. State of Orissa MANU/SC/0075/1971: (1971) 3SCC 192; Maruti Rama Naik v. State of Maharashtra MANU/SC/0684/2003: (2003) 10 SCC 670 and Jagjit Singh v. State of Punjab MANU/SC/0044/2005: (2005) 3 SCC 681]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case."
62. Since, the MLC Ex.PW9/A of Rahul reveals that patient was conscious and oriented at the time of his arrival in the BSA hospital and this MLC also reveals that history of assault is mentioned therein. But, no name of any assaultant is written in the MLC. The prosecution has failed to explain as to why the statement of PW13 was not recorded promptly on 22.12.2011 despite of the fact that Rahul was conscious and oriented. No doubt that MLC of Rahul reveals that Rahul is held to be unfit for making statement on 22.12.2011, 23.12.2011 and 24.12.2011 and Rahul was discharged on 28.12.2011. But IO had recorded statement of Rahul on 04.01.2012. The prosecution has failed to explain any cogent reason for non-recording of the statement of PW- 13 promptly. The perusal of the supplementary statement of PW5 Dharambir is allegedly recorded on 25.12.2011. But, as at the time of recording of his statement in the court, he had resiled from his said statement. Perusal of the PCR form Ex.PW4/A reveals that call was made by Maninderjeet Singh. Whereas, at the time of his examination in the court, Rahul (PW-13) has deposed that he called to the police. In SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 71/78 State Vs. Kapil Kaushik PCR form, name of the assaultant are not mentioned. IO did not bother to contact the caller of 100 number.
63. Since, the charges under Section 307/34 and 364-A/34 of IPC were framed against the accused Kapil Kaushik, Bhura Malik and Ashwani and charges under Section 307/34 and 364-A/34 of IPC and 174-A of IPC were framed against accused Deepak @ Badbu, so, it was incumbent on the part of the prosecution to prove it's case beyond reasonable doubt's that these accused in furtherance of their common intention have committed the offences punishable under Sections wherein the charges are framed against them. But, as the testimonies of the alleged witnesses of prosecution No.5 Dharambir and PW-13 Rahul are improved, embellished, contradictory and inconsistent to each other and inconsistent to the other witnesses of the prosecution, as discussed hereinabove paras. So, the same are suspicious, so the same are not relied upon. The accused are not named in the FIR. Since, the testimonies of PW-5 and PW-13 are inconsistent on the material points, which also render the case of the prosecution to be doubtful.
64. As their lordship of Supreme Court in case State of Rajasthan V. Raja Ram, V (2003) SLT 45-III (2003) CCR 198 (SC)=(2003) 8 SCC 180 was pleased to hold that:
"There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 72/78 State Vs. Kapil Kaushik innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not (see Bhagwan Singh v. State of M.P., (2002) 4 SCC 85). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Badade v. State of Maharashtra, (1973) 2 SCC 793; Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 and Jaswant Singh v. State of Haryana, (2000) 4 SCC 484."
65. Since in the case of State of West Bengal v. Orilal Jaiswal and another (1994) 1 Supreme Court Cases 73, "it was held that Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law. In the case of Mohan Singh and anr. v. State of M.P. (1999) 1 Supreme Court Reports 276, it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 73/78 State Vs. Kapil Kaushik the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
66. In the case of Mohan Singh and anr. v. State of M.P. (1999) 1 Supreme Court Reports 276, it was held that "the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scott free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
67. Cumulative effect of the above discussion, is that since the testimonies of the PW-5 Dharambir and PW-13 Rahul are found to be improved, embellished, inconsistent, contradictory and suspicious, so they do not inspire any confidence and benefits of doubt are given to the accused.
68. In view of the above discussion, I am of the considered opinion that it will be unsafe to convict to the accused Kapil Kaushik, Deepak @ SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 74/78 State Vs. Kapil Kaushik Badbu, Ashwani @ Akash @ Krishna and Bhura Malik under Section 307/34 & 364-A/34 of IPC, as there are so many infirmities, holes and lacunae in the version of the prosecution as discussed hereinabove. Since doubts are also there in the version of witnesses of the prosecution and benefits of doubts are given to the accused. Therefore, I am inclined to hold that the prosecution has failed to prove on record beyond reasonable doubt that the accused Kapil Kaushik, Deepak @ Badbu, Ashwani @ Akash @ Krishna and Bhura Malik have committed the offence U/s 307/34 & 364-A/34. Accordingly, accused Kapil Kaushik, Deepak @ Badbu, Ashwani @ Akash @ Krishna and Bhura Malik are acquitted of the charges framed against them in the above said sections.
69. Whereas, ASI Chetan Kumar has been examined as PW- 19, who has deposed that on 11.08.2014, he was posted at police station Samaipur Badli and executed the process u/s. 82 of Cr.P.C. Ex.CW1/A against Deepak @ Badbu, S/o Chander R/o. H. No. 722, Gali No. 6 , G-Block, Shradhanand Colony, Bhalaswa Dairy. He has further deposed that accused Deepak could not be found at the given address and he made inquiry from the neighbours, namely Anita and Prem Lata and recorded their statements Ex.CW1/C and Ex.CW1/D and one copy of the process was affixed at the house of accused, drum beating was also got conducted in the area and one copy of process was affixed on the notice board of the court and he had prepared his report Ex.CW1/B regarding execution of process. He has further deposed that on 12.09.2014, he had executed the process u/s. 83 of Cr.P.C. Ex. CW 1/E issued by the Ld. MM against accused Deepak @ Badbu, S/o Chander R/o H. No. 722, Gali No.6 , G-Block, Shradhanand Colony, Bhalaswa Dairy and no movable or immovable property could be found in the SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 75/78 State Vs. Kapil Kaushik name of accused Deepak and he had recorded statements Ex. CW 1/H and Ex. CW 1/G of neighbours namely Arti and Ranjeet and prepared his report Ex. CW 1/F in relation to execution of process u/s. 83 of Cr.P.C. He was also cross-examined by Ld. Counsel for accused Deepak @ Badbu and during his cross-examination, he has deposed that he had not photographed the proclamation affixed on the house of the Deepak i.e. H. No. 722, Gali No.6 , G-Block, Shradhanand Colony, Bhalaswa Dairy, Delhi and he had not photographed the process of drum beating. He has further deposed that he failed tell the name of the person who had beaten the drum and deposed that the drum was beaten in the entire street of the accused Deepak. He has admitted it to be correct that Bhabhi of the accused Deepak @ Badbu had told him that accused Deepak @ Badbu used to come once or twice in a month, for last 2 ½ -3 years. He has admitted it to be correct that as per Ex.CW1/D Premlata has stated that accused Deepak @ Badbu was living at the said address 2½ -3 years prior to the proclamation. He has further deposed that he did not file any list of property of accused Deepak @ Badbu alongwith the application for proceedings against the accused Deepak @ Badbu u/s. 83 of Cr.P.C. He has further deposed that he had conducted local inquiry from the family members and also from the neighbours of accused Deepak @ Badbu wherein, it was revealed that accused Deepak @ Badbu did not have any property in his name. He has further deposed that he did not enquire from the office of Sub-Registrar or SDM regarding the existence property in the name of accused Deepak @ Badbu. He has further deposed that he had enquired that the H. NO. 722 was owned by brother of accused Deepak @ Badbu. He did not know the name of the brother of accused Deepak @ Badbu, who owned that house. He has further deposed that he did not file any document with the report to fortify that H. No. 722 was SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 76/78 State Vs. Kapil Kaushik owned by brother of accused Deepak @ Badbu. He has further deposed that he had not recorded any statement of Anita or the brother of accused Deepak @ Badbu, which may show that brother of the accused was the owner of that house. He had denied that the proclamation was not executed in a legal manner or that all the paper work was done by him in the police station in a routine manner or that the accused Deepak @ Badbu was residing in the same house or that he had made a false report regarding the process u/s. 82/83 of Cr P.C. or that he had deposed falsely or that his report is false.
70. Ld. Counsel for the accused Deepak @ Badbu has submitted that since the proclamation u/s.82 of CrPC was not photographed, and published in the newspaper, so, the proclamation cannot be held to be published within the meaning of Section 82 of Cr.PC. But, as the perusal of the proclamation of 82 of CrPC Ex.CW1/A reveals that this accused Deepak @ Badbu was directed to appear in the court of Ld. Metropolitan Magistrate on dated 15.09.2014 and as per the statement of PW-19, such proclamation was affixed on the house of accused and drum was also beaten and proclamation was also affixed on the notice board of the court. Even if the proclamation was not published in any newspaper, there is no infirmity in the publication thereof. Since, from the testimony of PW-19 and the documents proved that this accused Deepak @ Badbu failed to appear in the court of Metropolitan Magistrate despite of publication of proclamation u/s.82 of CrPC, so, vide order dated 15.09.2014, this accused Deepak @ Badbu was declared Proclaimed Offender and this accused Deepak @ Badbu had given the same address in his statement recorded u/s.313 of CrPC, on which proclamation u/s. 82 of CrPC was affixed, so I have no ground to disbelieve the testimony of PW19 and since, the charge u/s.174 A of SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 77/78 State Vs. Kapil Kaushik IPC was framed against this accused Deepak @ Badbu, so I am inclined to hold that prosecution has successfully proved on record that this accused Deepak @ Badbu was absconding and concealing himself, so he was declared proclaimed offender vide order dated 15.09.2014. So, the charge u/s.174 A of IPC has been duly proved against accused Deepak @ Badbu. So, accused Deepak @ Badbu is convicted under Section 174-A of IPC.
71. Since, accused Kapil Kaushik, Ashwani @ Akash @ Krishna and Bhura Malik are acquitted of the charges framed against them, so, they are directed to furnish bail bonds in a sum of Rs.10,000/- with one surety of like amount each for a period of six months to ensure their attendance and appearance before the Ld. Appellate Court, as per provision of Section 437A of Cr.PC. The case properties are ordered to be disposed off after expiry of statutory period of filing of the appeal, as per law. (and after verifying from the Hon'ble Appellate forum regarding the pendency of appeal, if any.) Digitally signed PAWAN by PAWAN KUMAR MATTO KUMAR Date:
Announced in the Open Court on MATTO 2018.10.31
15:36:39 +0530
31st October, 2018 (Pawan Kumar Matto)
Special Judge (NDPS),
Additional Sessions Judge, N/W
Rohini Courts, Delhi.
SC No. 51841/16, FIR No.459/11,PS Samaipur Badli Page 78/78