HARENDER KUMAR Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) By these two appeals, the appellants challenge the impugned judgment dtd. 18/10/2018 whereby they have been convicted for offence punishable under Ss. 397/34 of Indian Penal Code, 1860 ('IPC') and Ss. 302/34 IPC and order on sentence dtd. 28/7/2018 whereby the appellants were directed to undergo rigorous imprisonment for seven years and life imprisonment respectively for the two offences and to pay a fine of ?10,000/- each on both counts; in default whereof to undergo rigorous imprisonment for six months on each count.

(2.) Investigation was set into motion on an information received at PS Ambedkar Nagar at 12.40 AM on 17/1/2017 regarding a quarrel near Block -18, Barat Ghar. The said DD No.3A was assigned to SI Satish Kumar and subsequently at 1.40 AM an information was received from AIIMS Trauma Centre that the injured brought to the hospital was declared dead. The information to the PCR was given by one Mukesh from his mobile no.9599859210 who appeared in witness box as PW-3. In his statement under Sec. 161 Cr.P.C. it was claimed that he was an eyewitness and had seen the deceased in quarrel with three persons out of whom one turned out to be a juvenile for whom inquiry report was submitted before the Juvenile Justice Board and two were the present appellants. However, before the Court Mukesh (PW-3) deposed that on 17/1/2017 when he was returning from his duty, at about 12.05 AM/12.10 AM he reached Block No.18 in front of Barat Ghar, where he found a person lying in an injured condition on the road. He alighted from the scooter with his friend and reached near the injured person and on inquiry the said injured person told his name which he did not remember and when asked about the phone number of his house, he told the said number. Mukesh tried to call on the phone number given by the injured however, nobody responded. He made a PCR call and, in the meantime, one Constable Sandeep reached the spot and asked them to take the injured to the hospital. Thereafter, he along with his friend Sumit took the injured to Batra Hospital on the asking of Constable Sandeep who was following them. When they reached near Khanpur Mandi, a PCR Van arrived and the PCR officials then took the injured in the PCR Van to the Trauma Centre. Mukesh and his friend came back to the spot from where they had lifted the injured in TSR and found some police officials. The police officials asked them to go home and he along with his friend went back home. On the next day, he met the police officials and came to know that the injured had passed away. He reiterated that he saw the injured lying at the spot alone. He was extensively cross-examined by the learned APP. He denied the suggestion that he had seen three boys beating one boy in the age group of 20-22 years. The other friend of Mukesh i.e. Sumit who purportedly helped Sumit to take the injured in the TSR has not been examined by the prosecution as a witness. Thus, there is no eye-witness evidence to support the prosecution case.

(3.) The other piece of evidence being relied upon by the prosecution is that of the CCTV footage retrieved from the shop of one Nitin Bansal (PW-12). Nitin Bansal (PW-12) in his deposition before the Court stated that he was residing on the first floor of J-157, Dakshin Puri, Ambedkar Nagar and also running a shop in the name and style of 'Balaji Home Appliances' on the ground floor of the said address and used to sell mobile and electronic items. CCTVs were installed inside and outside his shop in the gali. On 17/1/2017 some police officials had come from P.S. Ambedkar Nagar in the morning hours and told him that a murder has taken place nearby the spot and they wanted to see the CCTV footage which was installed. The police officials took the DVR with them, though no document was prepared at that time however, the next day he visited the police station, when the DVR and CD were seized and the seizure memo Ex.PW-12A bore his signatures. He also identified the DVR. On playing the CD of the CCTV footage he stated that the footage in the CCTV covered the area outside his shop. He also exhibited the certificate under Sec. 65B of the Indian Evidence Act vide Ex.PW-12B.