Deepak alias Raj v. State of NCT of Delhi

2003 SC 1311. 6.1. It was further argued that evidence of the prosecution witnesses finds corroboration in the medical/forensic evidence. PW-7 Dr. Vinay Kumar has specifically stated that cause of death in the matter is „cranio cerebral damages consequent upon blunt force impact to the head‟. PW-21 Shashi Bala Pahuja has also stated that blood found on the pants and shirt of the appellant/accused matched with the blood of the deceased ; and alleles from the black hair (hair around the finger of the left hand of the deceased) are accounted in the alleles from the blood of the appellant/accused. 6.2. Ld. Prosecutor also argued that the appellant has taken a false plea of alibi, for which an adverse inference is required to be drawn against him and in support, reliance was placed on the judgment in Sahabuddin and Ors. Vs. State of Assam, (2012) 13 SCC 213. 6.3. Ld. Prosecutor submitted that the prosecution has been able to establish the chain of circumstances unerringly pointing towards the guilt of the appellant/accused, beyond reasonable doubt. Learned Trial Court therefore, has rightly convicted the appellant/accused after considering the entire evidence/material on record ; and the appellant/accused has failed to point out any illegality or infirmity in the said judgment/order on sentence. Appeal is therefore, liable to be dismissed. 7.0. In rebuttal, learned counsel for the appellant/accused argued that the hair of the appellant/accused were planted in the hands of the deceased and thereafter, his hands were closed. 8.0. We have duly considered the submissions made by both the sides and have perused the record. 9.0 The prosecution case is primarily based on last seen evidence of the deceased‟s father/PW-2 Om Prakash and the dhaba-wala/PW-1 Anuj Prajapati, who had lastly seen the deceased alive in the company of the appellant/accused/JCLs. 10.0. PW-2 Om Prakash, father of the deceased deposed that on 22.08.2013 at about 6.30 pm, while he was at home at first floor, his son came out after taking bath. Someone called his son Ravi/deceased by name and he saw from balcony that it was CCL P, whom he knew as he resided in their locality. He also stated that the appellant/accused Deepak (whom he identified in the court), CCL S, CCL R were also present with CCL P at that time. His son Ravi went down and then went away with them. When his son (deceased) did not return home till late at night, he along with his elder son Rinku/PW-4 tried to search for him and made inquiries at the houses of the aforesaid accused persons and came to know that even they had not returned. He also made inquiry with their relatives, but to no avail. On the next day i.e. 23.08.2013, he visited house of CCL P to enquire from his father L about return of CCL P and came to know that he had not returned even by that time. Thereafter, he along with his son Rinku visited PS Mayur Vihar and reported the matter to police, where they came to know from the police officials that dead body of one boy was found from behind Star City Mall, Chilla Bagh, which was lying in the LBS Mortuary. He along with his son Rinku/PW-4 visited the mortuary and found that it was their son Ravi @ Chotte/the deceased. He noticed injuries marks on the deceased‟s head and other body parts and his face was in pool of blood. PW-2 also stated that he was sure that the appellant/accused and CCLs P,S and R had killed his son. He further stated that his statement Ex. PW-2/A was recorded by the police. Appellant/accused and CCLs were apprehended from their houses and were brought to the Police station. 10.1. As PW-2 did not fully support the prosecution version, he was cross- examined and confronted with his statement under Section 161 Cr.P.C by the Ld. Prosecutor. PW-2 however denied apprehension of the appellant/accused and other accused persons from 18th Block, Trilok Park pursuant to information given by a secret informer. He also denied that blood stained clothes were worn by the appellant/accused (i.e., pink colour shirt and black colour jeans) and CCL S and P and that CCL R was wearing his son Ravi/deceased‟s watch and their seizure ; he could not even identify the said watch as that of his deceased son. He also denied that the appellant/accused on interrogation had confessed to his guilt. PW-2 however admitted his signatures on the Seizure Memos Ex. PW-18/D of blood stained clothes of the appellant/accused and that of CCL P and S and also on Seizure Memo of the deceased‟s watch Ex. P-7 seized from CCL R and also the Arrest Memo of the appellant/accused Ex. PW-18/B and that of CCL P, S and R. 10.2. In his cross-examination by the appellant/accused, PW-2 stood by his deposition and categorically denied that he was not at home on 22.08.2013 and had not seen his son Ravi/deceased going out with the appellant/accused and JCLs and has falsely implicated them. It is significant to note that on one hand, it was suggested to PW-2 that the appellant/accused and JCLs had not visited his house and had not taken the deceased along ; and on the other hand, it was suggested to PW-2 that he (PW-2) was under the influence of liquor (which was denied by PW-2), when the appellant/accused along with JCLs had come there and called deceased Ravi. Thus accepting the prosecution version of the deceased Ravi having left with the appellant/accused and JCLs on the fateful evening. It has also come in the testimony of PW-2 that his son used to take liquor and then went on to voluntarily state that the deceased started consuming liquor due to bad company of the appellant/accused and JCLs. 11.0. PW-4 Rinku, brother of the deceased, has testified that on 22.08.2013, on return from his duty at about 10.30 pm, he was told by his parents that his brother Ravi @ Chhotu/deceased had left the house around 6.30 pm with his four friends i.e. appellant/accused and JCLs P, S and R, on being called by them and had not returned yet. When despite waiting till 12.00 mid night, his brother did not return, he (PW-4) and his father/PW-2 went to the houses of the appellant/accused and JCLs from where they came to know that the appellant/accused and other three JCLs were also not present at their respective houses. PW-4 has further deposed on the same lines as his father PW-2 Om Prakash and stated that when his brother/deceased neither returned nor could be found, on the next day i.e. 23.08.2013, at about 9.00/9.15 pm, he along with his father/PW-2 went to the Police station for lodging missing report of his brother Ravi/deceased ; and from the reception of the police station, they came to know that dead body of a boy named Ravi had been recovered from behind the Star City Mall and had been taken to LBS Hospital. The police officials took them to LBS hospital, where on seeing the dead body, they found/identified the same to be that of Ravi/deceased and at that time, face of Ravi was smeared with blood and he was having injuries on his head and chin. He (PW-4) suspected that the appellant/accused and the JCLs had killed his brother. 11.1. PW-4 stood by his version in cross-examination. He stated that during search of his brother, firstly, he and his father went to the house of JCL P thus corroborating PW-2‟s version. He further stated that house of the appellant/accused was situated at some distance from their house and parents of the appellant/accused were met. Though PW-4 stated that he did not remember whether the family members of the appellant/accused were sleeping at that time, he categorically denied that he had not visited the house of appellant/accused and for that reason, he was not aware whether the family members of the appellant/accused were sleeping or awake. He also denied that his father did not tell him about deceased Ravi being called by JCL P or having accompanied JCL P and the appellant/accused. PW-4 also denied that he was made to read his statement by the IO outside the court, stating that he had read his statement at home, copy of which was at his house. He however could not tell as to how he came in possession of that statement. 12.0. Further, PW-1 Anuj Prajapati has testified that he had been running a dhaba in the name of „Vijay‟ at Dharambir ka Makan, Sarpanch Wali Gali, Chilla Gaon, Delhi for the last about 10-12 years. On 22.08.2013, in the evening, the appellant/accused (duly identified in court) along with four of his associates had come to his dhaba to take Samosas etc. and all of them had also consumed liquor there ; and had left after about an hour. He further deposed that on the next day, police had brought the appellant/accused and his other three associates to his dhaba, on which, he came to know that the fifth associate of the appellant/accused had died. He further deposed that the appellant/accused had pointed out the place of occurrence on 24.08.2013 vide pointing out memo Ex. PW-1/A, which was signed by him at point A. He also deposed that JCLs R, P and S had pointed out his (PW-1‟s) dhaba and pointing out memos were prepared. 12.1. As PW-1 did not fully support the prosecution version, he was cross- examined and confronted with his statement under Section 161 Cr.P.C by the Ld. Prosecutor. PW-1 in his cross-examination by the Ld. Prosecutor admitted that in his statement recorded by the police on 24.10.2013 (apparently a clerical error ; actual date being 24.08.2013), he had stated that IO had come to his dhaba along with the appellant/accused and his three associates/JCLs P, S and R, who pointed out his dhaba. He also admitted that he had stated that three associates of the appellant/accused had come to his dhaba on 22.08.2013 at about 7.30 pm and two of his associates had come later having brought liquor with them ; and that all five of them had consumed liquor at the dhaba and thereafter left his dhaba around 9.15 pm. 12.2. It is noteworthy that the appellant/accused himself suggested to PW-1 in his cross-examination that the police had brought the appellant/accused and his JCL associates to PW-1‟s dhaba, which was answered in affirmative by PW-1. He (PW-1) stated that he can identify the other associates and deceased, if his photograph is shown to him. Though, he further stated that he was unable to recollect the clothes which were worn by the appellant/accused and his associates on 22.08.2013, when they visited his dhaba. He also stated that his dhaba usually remained open from 8.00 am to 10.00 pm. He also stated that his statement was recorded thrice by the police ; firstly, on 24.08.2013, but could not recollect the dates when his subsequent statements were recorded. PW-1 categorically denied that he has made a false deposition under pressure of the police as he has been running the dhaba without license. 12.3. Veracity of testimony of PW-1 is fortified by the appellant/accused‟s own suggestion to PW-22 SI Arvind Verma. The appellant/accused himself suggested to PW-22, (who had joined the investigation with IO/PW-23 SHO/Ins. V.N. Jha), in cross-examination that the deceased and the appellant/accused and three JCLs had consumed liquor together, which was replied by him as „It is correct that during investigation, it was revealed that the deceased had consumed liquor along with accused Deepak and three JCLs. 13.0. PW-16 Ct. Satender, who had found the dead body, testified that on 23.08.2013, he along with PW-18 ASI Subhash Chand was on beat duty near Star City Mall, near Chilla Bagh, Mayur Vihar, Delhi. On that day at about 6.15 pm, while patrolling in the area, they found one dead body having injury marks on the face and body, lying near the wall behind the said Mall. PW-18 HC Subhash informed about it to the Duty Officer, PS Mayur Vihar and after some time, SHO, PS Mayur Vihar, (PW-23 Inspector Vivekanand Jha), SI Mausam Ghani/PW-6 and crime team reached the spot. Scene of crime was inspected and photographed by the crime team and exhibits were lifted from the spot and sealed. PW-16 further deposed that thereafter, as per the instructions of SHO PS Mayur Vihar/PW-23, he had taken the dead body to the LBS Hospital, leaving PW-18 HC Subhash to guard the spot. At LBS Hospital, the deceased was declared 'brought dead' and in the meanwhile, relatives (father and brother) of the deceased reached there and identified the deceased as Ravi vide identification statements Ex. PW-2/B and Ex. PW-16/B. He further deposed that on the next day i.e. 24/8/2013, postmortem of the dead body was got conducted and thereafter, the dead body of the deceased was handed over to his family members ; doctor had handed over the exhibits of the deceased to the IO and same were seized vide seizure memo Ex. PW-16/A. 13.1. PW-16 has stood by his deposition in cross-examination. He even described the clothes the deceased was found wearing i.e. mustard brown colour pants and checkdar shirt. He also stated in cross-examination that the crime team had reached after arrival of SHO, PS Mayur Vihar (PW-23) and the IO/PW-23 had lifted blood stains, broken glass bottle, stone and other exhibits from the spot. Nothing could be extracted in his cross-examination so as to shake his testimony. 14.0 PW-18 ASI Subhash Chand, who was on patrolling duty along with PW-16 on 23.08.2013 also deposed on the same lines stating that while patrolling, at about 6.15 pm, when they reached at Star City Mall, Chilla Bagh, a dead body of a male person was found near the mall. He also stated that on closely looking at the dead body, injuries were seen on the right eye, chin, head and face of the deceased ; he was also having scratch marks/„ragad ke nishan the‟ on his stomach and that name „Ravi” was tattooed on the right hand of the deceased and there was one black mark on the right side of the chest of the deceased. He also testified about arrival of crime team and taking of photographs by the photographer and that PW-23 IO Inspector V.N. Jha had lifted exhibits i.e., blood with the help of gauze, blood stained soil and earth control sample, blood stained pair of grey colour rubber slippers (Ex.P-1), broken pieces of beer bottle (Ex. P-2), three cemented bricks having stains (Ex. P-3), found on the crime scene, which were converted into parcel and sealed with the seal of „PS MAYUR VIHAR MV-I EAST DISTT.‟ He also deposed about seizure by IO vide seizure memo Ex. PW-18/D of one pink colour shirt and one white jeans having stains (Ex. P-4 colly), identifying them to be the clothes of the appellant/accused. He also testified that the dead body of the deceased was removed to LBS Hospital. 14.1. PW-18 also deposed that none of the accused persons were found at their respective houses and subsequently, secret information was received that the appellant and other accused persons were seen at 27 Block, Trilok Puri, but there they were not found there ; and then secret information was received about presence of appellant and other accused persons at Block 17, Trilok Puri, but they were also not found there ; and finally, the information was received that the accused persons were sitting in the park of 18th Block, Trilokpuri and thereafter on the pointing out of the complainant/PW-2, they were apprehended. Disclosure statements of the appellant/accused Ex. PW- 18/A was recorded. Clothes worn by the appellant/accused and JCLs P and S were having blood stains. IO/PW-23 after making available through their family members, another set of clothes for them to change, seized their clothes in three separate pullands (parcels), which were seized by the IO vide seizure memo Ex. PW-18/D and sealed with the seal of „PS MAYUR VIHAR MV-I EAST DISTT‟ ; and wrist watch of the deceased identified by the complainant/father, which was worn by JCL R, was also seized and sealed. Place of incident was identified by the appellant/accused vide Memo Ex. PW-18/E. The JCL P also pointed out the shop no. G-10A, Star City Mall, from where he along with the deceased had purchased liquor, vide pointing out Memo mark PW-10/A. JCLs R and P pointed out shop no. G- 18-19-23, Star City Mall, from where they again purchased the liquor after the liquor earlier brought had been consumed, vide pointing out memos Mark PW-11/A and PW-11/B, respectively. Manager of the shop Umesh Saxena was met and his statement was recorded by the IO/PW-23. He also deposed that the Dhaba where the appellant/accused, JCLs and the deceased consumed liquor was pointed out by the appellant/accused vide memo Ex. PW-1/A and by the JCLs vide pointing out memos Mark A to Mark C. 14.2. PW-18 also testified that on 16.09.2013, he had taken the case property to FSL Rohini, vide RCs No. 145/21/13 and 147/21/13 and deposited the same with FSL Rohini and had deposited the copy of Road Certificate with the MHCM. Testimony of PW-18 in this respect remained uncontested as in cross-examination, he was only asked about the total number of samples sent to the FSL vide aforesaid RC numbers, which he could not tell and stated that there were number of samples. He categorically denied that he had not joined investigation on the said date. Rather, in his cross-examination, PW-18 described the clothes worn by the appellant/ accused as white colour trouser and pink colour shirt. (Ex. P4) 14.3. PW-18 also testified that on 05.09.2013, he along with IO visited shop no. G-18-19-23, Star City Mall, where the manager Umesh Saxena/PW-11 produced one DVR, two pen-drives and five photographs pertaining to the period of purchase of liquor by two JCLs. Said DVR and pen-drives were seized vide seizure memo Ex. PW-18/G and were sealed. He further stated that on 08.09.2013, he along with IO/PW-23 visited shop no. G-10A, City Mall and shop owner Piyush Diwan/PW-5 produced one DVR, two pen drives and ten photographs pertaining to the period of purchase of liquor by JCL P and the deceased, which were seized vide Seizure Memo Ex. PW-5/A. PW-18 identified DVR make „SECOM‟ having serial no. 2308M1005150283 and also two pen-drives make „Sandisk Cruzer Switch” of 4 GB, one DVR having serial no. 2304M1005080007, two pen drives make „Sandisk Cruzer Blade of 4 GB each. PW-18 also deposed that on 05.10.2013, he had prepared kalandra vide DD no. 21-A against the sales- men of liquor shops, who had sold liquor to juveniles. The sales-man Naveen of Shop no. G-18-19-23, Star City Mall, pleaded guilty and was convicted vide order dated 10.10.2013 Ex. PW-18/H. The sales man Yogender of Shop no. G-10A, Star City Mall also pleaded guilty and was convicted vide order dated 10.10.2013 Ex. PW-18/I. 14.4. PW-18 stood by his testimony in his cross-examination. The accused persons themselves suggested to PW-18 in cross-examination that SHO/IO/PW-23 and other police officials had visited the spot where the dead body was found and photographs of the scene of crime were taken by the photographer. PW-18 in cross-examination even gave further details stating that the place where the dead body was found, was a secluded place where seasonal bushes existed and that the deceased was wearing greenish grey colour shirt and pants, colour of which he could not recollect. He also stated that they had finally left the spot at 12.00 mid night on 23.08.2013. He denied that in the park cement bricks and bottle pieces are commonly lying, though he admitted that people throw waste including construction waste in the park. In his cross-examination, PW-18 also reiterated the apprehension of the appellant/accused and the JCLs from 18th Block Park and even described the clothes, the appellant/accused was wearing at that time i.e. white colour trouser and pink colour shirt. He categorically denied that he had not joined the investigation and has deposed at the instance of IO to falsely implicate the appellant/accused. 15.0. Testimonies of PW-16 Ct. Satender and PW-18 ASI Subhash Chand are further corroborated by PW-23 Ins. Vivekanand Jha, SHO of PS Mayur Vihar, the investigation officer. PW-23 testified that on 23.08.2013 while patrolling in the area, he received a PCR call at about 6.35 pm on his wireless set about lying of a dead body behind Star City Mall, Mayur Vihar and accordingly, he along with his staff reached there. At the spot, beat staff PW-18 HC Subhash and PW-16 Ct. Satender were found present and PW-6 SI Mausam Gani also reached after receipt of call vide DD no. 34-A Ex. PW-23/A. Dead body was cursorily inspected. Thereafter, the spot was got inspected through the officials of the crime team vide report Ex. PW-3/A and the scene of occurrence was photographed vide photographs Ex. PW-12/A1 to A18 (negatives Ex. PW-12/B1 to B19). Exhibits were lifted from the spot, sealed and seized vide memo Ex. PW-6/A. He further deposed that after leaving PW-18 HC Subhash at the spot, he along with PW-16 Ct. Satender, PW-6 SI Mausam Gani and other staff reached LBS Hospital, where the deceased was examined and was declared brought dead by the doctor vide MLC Ex. PW-23/B. Thereafter, the dead body was identified by PW-2 Om Prakash (father of the deceased) to be that of his son. He (PW-23) recorded the statement Ex. PW-2/A of Om Prakash/PW-2, on the basis of which, he prepared rukka Ex. PW-23/C, got the FIR Ex. PW-8/A registered and got preserved the dead body at mortuary of LBS Hospital. PW-23 further deposed that thereafter, he returned to the spot and prepared unscaled site plan Ex. PW-23/D of the spot. Efforts were made to search for the suspects, but to no avail. 15.1. PW-23 further testified that on 24.08.2013, he along with PW-6 SI Mausam Gani went to the mortuary of the LBS Hospital and got the postmortem conducted over the dead body and seized the sealed exhibits, handed over to him by the doctor, vide seizure memo Ex. PW-16/A. PW-23 further deposed about apprehension and arrest of the appellant/accused and other JCLs from 18 Block, Trilok Puri on the identification of the complainant, their personal search, seizure of blood stained clothes of the appellant/accused, seizure of wrist watch of the deceased from the possession of JCL R, which complainant identified to be that of his son Ravi/deceased. PW-23 also deposed about preparation of the pointing out memos i.e. Ex. PW-18/E (of place of occurrence by the appellant/accused), pointing out memos mark PW-10/A and PW-11/B of the liquor shops at G- 10A and G-18, Star City Mall, Mayur Vihar at the instance of JCLs, Ex. PW- 1/A (place of consuming liquor) prepared at the instance of the appellant/accused. PW-23 also deposed about taking the hair and blood samples of the appellant/accused and other JCLs and their seizure vide memo Ex. PW-18/E. PW-23 further deposed about checking of CCTV footage of relevant date at wine shop no. G-18, Star City Mall and about seizure of DVR, pen-drives and photographs thereof vide seizure memo Ex. PW-18/G ; seizure of DVR, pen-drives and ten photographs from G-10A, Star City Mall vide seizure memo Ex. PW-5/A. 15.2. PW-23 stood by his testimony in his cross-examination and categorically denied that he had never visited the spot and has not conducted fair investigation and the appellant/accused has been falsely implicated. Nothing worthwhile could be extracted in his cross-examination to reflect on his credibility. Rather, the appellant/accused‟s suggestion to PW-23 that he did not visit the spot is contrary to suggestion put by him to PW-18 that PW- 23 had visited the spot empty handed, as already noted above. Further, the appellant/accused himself suggested to PW-23 in cross-examination that some glass pieces and pieces of cement brick were already lying around the deceased, when PW-23 and other police officials reached there, which was answered in affirmative by PW-23. PW-23 however denied that the same were thrown as garbage by the local residents. Thus the factum of recovery of dead body, glass pieces and pieces of cement bricks found around the dead body remained uncontroverted. As far as testimony of PW-23 that he had called the crime team which inter alia had taken photographs has come on record by virtue of the appellant/accused‟s own suggestion in cross- examination of PW-18, which was replied by him as „It is correct that SHO/IO, his driver and operator were empty handed when they come to me….. It is wrong to suggest that the photographer had gone immediately after taking the photographs.‟ 15.3. It is also noteworthy that when IO‟s testimony/evidence about seizure of the appellant/accused‟s clothes by him, was put to the appellant/accused during recording of his statement u/s 313 Cr.P.C, the appellant/accused stated that the clothes seized by the IO did not belong to him. But no such suggestion was put either to PW-18 ASI Subhash or to IO/PW-23 Insp. Vivekanand Jha in their cross-examination. Same exposes falsehood of the appellant/accused and an adverse inference can be drawn against the appellant/accused for taking such a false plea, which constitutes another incriminating circumstance against him. Testimony of PW-23 in this regard also find corroboration in the deposition of PW-18 Ct. Satender and PW-22 SI Arvind Verma (in whose presence the clothes were seized) and they have stood by the same in their cross-examination. PW-18 in cross-examination rather reiterated that the applicant/accused was wearing a pink colour shirt and white colour jeans at the time of his apprehension. No such suggestion that said clothes did not belong to him was put to even to PW-22. 15.4. PW-23‟s testimony with respect to seizure of DVRs, pen-drives and photographs from PW-5 Piyush Diwan and PW-11 Umesh Saxena, has remained uncontroverted as he was not cross-examined in that respect except putting a suggestion to him that the appellant/accused is not seen in the CCTV footage and the photographs/stills of CCTV footage, which was replied in affirmative. 16.0. Testimonies of PW-18 ASI Subhash Chand and PW-23 IO Inspector Vivekanand Jha regarding seizure of DVR/Pen drives, photographs from two liquor shops bearing no. G-10A and G-18-19-23, Star City Mall, are corroborated by PW-5 Piyush Diwan running liquor shop no. G-10A and PW-10 Pawan Sharma, Manager of the said shop ; and by PW-11 Umesh Saxena, Manager of Shop No. G-18-19-23. PW-10 Pawan Sharma testified that he is working as manager at Liquor Shop G-10A, Star City Mall, Mayur Vihar, Delhi. On 24.08.2013, police visited their shop along with four boys in custody as the said boys had told the police that they had purchased the liquor from their shop. However, he could not identify the appellant/accused in the court as one of those boys, who were brought to their shop. PW-10 also stated that his signatures were obtained on 2-3 documents and identified his signatures on Mark PW-10/A i.e. pointing out memo of their shop. As he could not disclose the complete facts, he was cross-examined by the Ld. Prosecutor. In his cross-examination by Ld. Prosecutor, PW-10 Pawan Sharma denied that he was deliberately not identifying the appellant/accused in court to save himself. He also denied that he had told the police in his statement that one of those boys i.e. JCL P had visited their shop along with the deceased and had purchased liquor from their shop on 22.08.2013. 16.1. PW-10‟s testimony has remained uncontroverted as only suggestion put to him in cross-examination by the ld. Counsel for the appellant/accused was, that he has deposed falsely at the instance of police. PW10 in his cross-examination clarified that they do not mention the customer‟s name in the receipt of purchase of liquor. PW-5 Piyush Diwan, who was running the said liquor shop no. G-10A, has testified that on 08.09.2013, he provided CCTV footage pertaining to 22.08.13, video recorder along with other accessories, two pen-drives and 10 photographs to the IO/PW-23, which were seized vide seizure memo Ex. PW-5/A. PW-5 in his cross- examination stated that from the CCTV footage, he came to know that on 22.08.13 at about 7.55 pm, two boys seen in the CCTV recording/photographs had visited his shop for purchasing liquor, though, he was not present at the shop at that time. 16.2. It has come in the testimony of PW-11 Umesh Saxena, manager of shop no. 18-19-23, Star City Mall that the four boys brought by police, had vide pointing out memos Mark PW-11/A (at the instance of JCL P) and Mark PW-11/B (at the instance of JCL R), pointed out that they had purchased liquor from their shop at about 9.30/9.45 pm in August 2013 (he could not recollect the exact date). PW-11 in his cross-examination by the Ld. prosecutor admitted having handed over DVR of their shop, pen drive containing CCTV footage of 22.8.13 to the Police, but denied handing over five photographs of the footage of CCLs P and R. 16.3. Though, the factum of handing over of DVR and CCTV footage of 22.8.13 in the pen-drive by PW-5 and PW-11 to the IO remained uncontested by the appellant/accused as no suggestion to the contrary was put to them. The CCTV footage per se, in absence of certificate under Section 65-B Indian Evidence Act, is not admissible. However, in view of the overwhelming incriminating evidence/circumstantial evidence against the appellant/accused having come on record, the photographs (Ex. P-13/1 to Ex. P-13/10) of footage of 22.08.13 handed over by PW-5 Piyush Diwan, which have remained unchallenged, are referred to. It is not disputed that in the said photographs at around 07.55 pm, deceased Ravi and JCL P are seen in the liquor shop. Same lends credence to the prosecution story that the deceased went with JCLs to bring liquor. 16.4. Ld. Counsel for the appellant/accused argued that the appellant is not seen in any of the CCTV footage/still photographs ; only JCL P and the deceased are seen in CCTV footage of Shop no. 10A and in another CCTV footage/photograph, JCL R and P in Shop no. 18-19-23 are visible. Therefore, the presence of the appellant/accused with the deceased has not been established. Suffice it to state that it is not the prosecution‟s case that the appellant had accompanied the deceased/JCLs to fetch liquor. Rather, prosecution‟s case is that JCL S had sent JCLs P and R to purchase liquor and that JCLs had made the deceased drink a full beer bottle and thereafter, all of them consumed another beer bottle. Further, PW-1 in his cross- examination by the Ld. Prosecutor admitted that he had stated to the police (in his statement u/s 161 Cr.P.C) that the appellant/accused along with three of his associates had come to his dhaba at 7.30 pm and two of their associates had come later along with liquor. It is also noteworthy that PW-1 was not cross-examined so as to suggest that the appellant/accused was not present at his dhaba on 22.08.2013. 17.0. In view of the testimonies of PW-2, PW-4, PW-1, PW-16 & PW-18, it is established that the deceased was seen by PW-2, his father Om Prakash, leaving with the appellant/accused and JCLs P,S and R at about 6.30 pm on 22.08.2013 and he did not return thereafter. Vide testimony of PW-1 Anuj Prajapati, the dhaba wala, it has come on record that thereafter, the deceased was seen by PW-1 with the appellant/accused and the JCLs at about 7.30 pm, when they visited his dhaba and left PW-1‟s dhaba at about 9.15 pm. Thus, the deceased was last seen alive by PW-1 in the company of the appellant/accused persons at about 9.15 pm on 22.8.13. Thereafter, the next day i.e. on 23.08.2013 at about 6.15 pm, dead body of the deceased was found by PW-16 & PW-18, who were patrolling near Star City Mall, near Chilla Bagh, Mayur Vihar, Delhi, lying near the wall behind the said Mall. 17.1. Testimony of PW-1 Anuj Prajapati that the appellant/accused along with four boys had visited his dhaba on 22.8.13 and had brought liquor and consumed the same at dhaba is also corroborated by forensic evidence/viscera Examination Report Ex. PW-9/A. PW-9 Santosh Tripathi, Senior Scientific Officer, (chemistry), FSL, Rohini, Delhi, testified that he had examined the viscera of the deceased and had furnished Examination Report Ex. PW-9/A. He also stated that Ethyl alcohol measuring 176.9 mg per 100 ml of the blood, was found by him in all the exhibits. The said Examination Report records the examination result inter alia as „ethyl alcohol was found in stomach, small intestine, liver, spleen, kidney and in the blood of the deceased.‟ And „Ex. FC- blood sample (volume 200 ml approx) was found containing Ethyl alcohol 176.9 mg per 100 ml of the blood.‟ Nothing of significance could be extracted in his cross-examination so as to dent his testimony except putting a general suggestion to him that he has prepared a wrong report at the behest of IO, although the deceased had not consumed any alcohol, which was categorically denied by PW-9. 18.0. Post-mortem report of the deceased Ex. PW-7/A was proved by PW-

7 Dr. Vinay Kumar Singh, relevant portion of which reads as under: “Post mortem No. _6/2013 Dated: 24/8/13 Time: 01.30 pm …………. Name: Ravi @ Chotu Probable Age: 22 years …………. Hospital Records: Date & Time of Receipt of Inquest Papers 24/08/13, 1.00 pm Date & Time of Death/Brought Dead 9.15 pm, 23/08/13 ……… Arrival of Body at Mortuary and time: 23/08/13, 10.10 pm BRIEF HISTORY AS PER I/O: Alleged history of being found behind Star City Mall, Chilla Bagh. Both right and left hands clinched as fists with hairs inside. ………….. EXTERNAL EXAMINATION (Injuries etc.)

1. Lacerated wound 5 x 2.[4] cms obliquely placed over right eye brow medial end margins irregular.

2. Bruise, 7x[3] cms over left cheek.

3. Lacerated wound 3.5x[1].[6] cms over upper lip.

4. Lacerated wound 5x[1] cms over lower lip left angle.

5. Lacerated wound 5x 1.[5] cms bone deep over middle of the chin with underneath mandible fractured.

6. Lacerated wound 1x[1] cms with fracture of middle digit of left ring finger.

7. Abrasion 4.[5] x 1 cms over back at left middle finger.

8. Lacerated wound 5x 3 cms over left side occipital region.

INERNAL EXMINATION: ………. Head:-  Scalp: Diffuse subscalpal haemotoma  Skull: multiple compound fracture at skull  Brain: Diffuse SDH & SAH all over Time since death: 34-42 hours Opinion: is kept pending till chemical analysis report at preserved viscera is made available.”

18.1. As per the postmortem report Ex. PW-7/A, opinion was kept pending till receipt of Chemical Analysis report of preserved viscera. It appears that after obtaining viscera examination report Ex. PW-9/A, same was not sent for obtaining opinion of PW-7. However, PW-7 after seeing the FSL report Ex. PW-9/A and going through the postmortem report and considering the injuries suffered by the deceased as described in the postmortem report, deposed that – “I opined that cause of death in this case was cranio cerebral damages consequent upon blunt forced impact to the head. All injuries were ante-mortem in nature and fresh in duration before death. Injuries nos. 1, 2, 5 and 8 are individually and collectively sufficient to cause death in ordinary course of nature.” He also testified that after the postmortem, he had also sealed viscera, blood sample, nail clippings, clothes and hairs in right hand & hairs in left hand and glass pieces with seal of department and handed over the same to the police with the sample of the seal. PW-7‟s testimony has remained unimpeached as the only suggestions which were given to PW- 7 in cross-examination were, that a person can suffer injuries as detailed in postmortem report by fall in intoxicated condition, which were categorically denied by PW-7. He also denied that there were no injury marks on the deceased‟s body as mentioned in the postmortem report.

18.2. Injuries reflected in the postmortem report/Ex. PW-7/A further corroborate the oral testimony of PW-2 Om Prakash, PW-4 Rinku and PW- 18 ASI Subhash Chand, who stated that the deceased had injuries on his face and head etc.

18.3. The postmortem report Ex. PW-7/A records presence of hair inside both, the right and left hand of the deceased clinched as fists, which has also come in the testimony of PW-7, which remained unimpeached. PW-7 was not cross-examined by the Ld. Counsel for the appellant/accused regarding planting of/possibility of planting of the appellant/accused‟s hair in the fists of the deceased. Neither was any such suggestion put to PW-16 Ct. Satender, who had taken the dead body to LBS hospital or to the IO/PW-23 Insp. Vivekanand Jha. Same belies the plea of the appellant/accused that his hair were planted on the deceased and in view thereof, an adverse inference can be drawn against the appellant.

18.4. The postmortem report/Ex. PW-7/A bears the date and time as 24.08.2013, 1.30 pm and time since death is reported to be “34 to 42 hours”. As per the same, the deceased possibly died somewhere between