Delhi District Court
State vs . : 1). Chhota Salman Etc. on 22 January, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No: 149/17
FIR No. : 829/16
U/s : 302/307/324/120B/34 IPC
P.S. : Prashant Vihar
State Vs. : 1). Chhota Salman etc.
S/o Late Mohd. Jamshed Ali
R/o H.No.A-4, A-Block, Veer
Singh Colony, Budh Vihar
Phase-II, Delhi.
2) Raman
S/o Sh. Shyam Veer
R/o H.No.G-87, Vijay Vihar,
Phase-I, Delhi.
3) Sunil Kumar @ Lala
S/o Sh. Dana Ram
R/o H.No.95, Pkt.27, Sector-24,
Rohini, Delhi
4) Salman Khan
S/o Sh. Ishrail Khan
R/o H.No.G-1/2, Sector-16,
Rohini, Delhi.
5) Kapil
S/o Sh. Rama
R/o Vill. Jhamatali, PS: Bumeta,
Distt. Chattar Pur, M.P.,
2nd Address: Jhuggi Opposite
Property No.A-3/109, Sector-11,
Rohini, Delhi.
(PROCLAIMED OFFENDER)
Offence complained of : 302/307/324/120B/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted.
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Date of committal : 17.03.2017
Date of Judgment : 22.01.2018
JUDGMENT
1. On 22.11.2016 at 12:04 am information was received at PS: Prashant Vihar regarding quarrel at G-2/34, near Titiksha School, Sector-11 Rohini and that there is an injured. This information was passed on to SI Vijay who along with Ct. Sunny left for the scene of crime. DD No.3A was recorded in this regard. On the spot SI Vijay found that blood was lying on the Chabutra and on the beddings. No eye witness met them on the spot. They came to know that injured have been removed to hospital by PCR van. SI Vijay reached BSA hospital. Ashish was found admitted in the hospital. No eye witness was found present in the hospital also. Exhibits were lifted from the spot. During the day information was received that patient Ashish has been declared dead. On 23.11.2016 statement of injured Pankaj was recorded who told that on 21.11.2016 at about 7:00 pm after taking dinner he came to the shop of Javed. He went to sleep on the beddings in front of adjacent shop. After some time Ashish came in the car. Javed told Ashish that he will drive the car during night as Ashish was tired. Thereafter, Javed went with the car and Ashish also slept near Pankaj on State Vs. Chhota Salman etc.. SC No.149/17 :: 2 ::
different bedding. In the night Pankaj woke up on hearing the cries and noticed three boys assaulting Ashish. Pankaj raised alarm on which those three boys assaulted Pankaj also with the weapons carried by them. He also heard a sound coming from a distance saying "Jaldi aao". Out of those three boys one was wearing a cap on his head and was of short height. One boy was having long hairs wearing Punjabi type Kurta Pyjama and was also wearing a jacket. The third one was of strong built with dark complexion. They all fled away. He noticed that Ashish was bleeding and had fallen from Chabutra. Clothes of Pankaj were also stained with blood. After sometime police van came and removed him to BSA hospital. In the hospital he got frightened and therefore, he came back but as his bleeding was not stopping hence, he again went to the hospital. His clothes were also seized by the police. During investigation the accused persons were arrested. One CCL 'A' was arrested against whom charge sheet before Juvenile Justice Board was filed. The charge sheet against other accused persons arrested was filed. Ld. MM after complying with the provisions of section 207 Cr.PC committed the case to the Sessions court as offence u/s 302 and 307 IPC are exclusively triable by the Sessions Court. All the four accused were charged for the offence punishable u/s 120B, 302 r/w 120B and 307 r/w 120B to which they pleaded State Vs. Chhota Salman etc.. SC No.149/17 :: 3 ::
not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
2. ASI Karambir was examined as PW-1. On 22.11.2016 he was posted as photographer in the mobile crime team. On that day he along with Incharge mobile crime team SI Aakash Deep and other staff reached near shop No.G-2/34, Sector- 11 Rohini. SI Vijay Kumar along with the staff met them there. SHO also arrived on the spot. He took 48 photographs of the scene of crime from different angles. The photographs are Ex.PW1/A1 to A8 and the negatives of the same are Ex.PW1/B1 to B8.
3. During cross-examination he admitted that on the photographs the date and time is not printed. He denied the suggestion that the photographs are not of the place of incident.
4. SI Aakash deep was examined as PW-2. He deposed that on the intervening night of 21-22 of November 2016 at about 1:20 am he received information from control room. Thereafter, he along with his team i.e. ASI Karambir photographer, Ct. Chhotey Khan finger print proficient reached G-2/34-34 Sector-11 Rohini at about 1:40 am in Govt. Vehicle. SI Vijay along with the staff met them there. Photographer took the photographs. He inspected the scene of crime and prepared his report Ex.PW2/A. The blood was State Vs. Chhota Salman etc.. SC No.149/17 :: 4 ::
lying on the spot and also on the mattresses.
5. During cross-examination he stated that he was present in his office when the information was received. The distance between the place of occurrence and his office is about 4 km. He denied the suggestion that it took them 30 to 45 minutes to get ready. He denied the suggestion that he prepared the report while sitting in the office.
6. Sh. Lakshmi Gaur was examined as PW-3. He deposed that on 21.11.2016 in the night hours at about 11:00 or 11:15 pm he was present in his house. After hearing noise he came out of his house. His neighbour Sh. Ramesh Varandani also came out of his house. He along with Jatin S/o Sh. Ramesh Varandani and Ramesh Varandani went to the corner of the street and noticed a boy lying in injured condition in front of shop, Sector-11 Rohini. He made call at 100 number from his mobile phone number 9650044092. Many public persons gathered there. PCR van arrived and removed the injured.
7. During cross-examination He stated that police made inquiries from him on the next day, but he does not know if his statement was recorded. Police made inquiries from the other persons also in his presence but he does not know the names of those persons.
8. Jagdish was examined as PW-4. On 22.11.2016 he in State Vs. Chhota Salman etc.. SC No.149/17 :: 5 ::
the mortuary identified the dead body of his nephew Ashish vide memo Ex.PW4/A and received the body vide memo Ex.PW4/B.
9. Sh. S.P. Aggarwal was examined as PW-5. He deposed that in the year 2005 he was chief advisor of welfare association of SFS Flats Golden Jubliee Apartment. He advised president of the society namely Suresh Malik to allow Israel @ Ashok as a person to collect waste items from the residents of the society. The prescribed fee was deposited by Israel @ Ashok with the office. In the year 2015 new body of RWA was constituted. He advised the president of the society that Israel @ Ashok and Rahul are interested in collecting waste items from the residents of the society after paying the prescribed fee. The executive selected Rahul as the person to collect the waste items from the residents of the society.
10. During cross-examination he stated that he did not tell the police that he advised President of the society that Israel @ Ashok and Rahul are interested in collecting waste articles from the residents of the society after paying the prescribed fee. It was an oral agreement between Rahul and the society. He denied the suggestion that no such oral agreement was reached. One time entry fee of Rs.1,00,000/- was taken by society from Rahul. He denied the suggestion that no such State Vs. Chhota Salman etc.. SC No.149/17 :: 6 ::
cheque of Rs.1,00,000/- was given by Rahul to the society.
11. Dr. Amrinder Singh was examined as PW-6. He deposed that on 22.04.2016 vide MLC No.15207 injured Pankaj S/o Sh. Ram Bilas was medically examined. He referred the said patient to SR Surgery for further management. The SR surgery referred the patient to SR Ortho for further management and opinion. From Ortho side the said patient was examined by him. He gave his opinion on the back side of the MLC which is Ex.PW6/A from point X to X1. No bone injury was found. His signatures on the MLC is at point Z. The testimony of witness has gone unchallenged and uncontroverted.
12. Pankaj Gupta was examined as PW-7. He deposed that he is working as scrap dealer for the last 12 years. He used to ply teen pahiye wali rickshaw. On 21.11.2016 in the night hours he took dinner and went to bed in the shop of Kabari Javed situated at G-2/34 Sector-11, Rohini, Delhi. Three persons came to the shop where he was sleeping and they gave beatings to Ashish. He woke up and objected to those three persons and they attacked him also. Those persons were armed. One of them was carrying knife, another was carrying screw driver and the third boy was also armed with some weapon but he is not able to recollect the type of that weapon. Those boys gave blows on his back and State Vs. Chhota Salman etc.. SC No.149/17 :: 7 ::
hip. One boy attacked on his right arm with screw driver and also on the chest and stomach. Some public persons gathered there and all the three persons ran away. Someone made call to police at 100 number. PCR van reached there and took Ashish in the PCR Van. Ashish had sustained knife injuries in his stomach and was bleeding. Another PCR Van came and took him to BSA hospital. There were many other persons in the hospital. Doctor had asked him to stay outside the emergency ward of the hospital. Ashish was medically examined by the doctor. He was also medically examined and treated. He was given stitches on the back i.e. hip where the stab wound was caused. Javed also reached the hospital. After sometime Javed told him that doctors had declared Ashish dead. Police made inquiries from him but due to pain he could not give any statement. His statement was recorded by the police on 23.11.2016. The witness has pointed towards the three persons who attacked him. He identified all the accused except accused Salman Khan. He also gave his blood stained clothes to the police in the police station and police seized the same vide memo Ex.PW7/A.
13. On 03.12.2016 he went to Jail where he identified Chhota Salman in TIP proceedings ExPW7/B. On 07.12.2016 he went to jail where he identified Raman in the TIP proceedings Ex.PW7/C. Accused Raman used a knife State Vs. Chhota Salman etc.. SC No.149/17 :: 8 ::
and caused injuries to him and Ashish.
14. Ashish was a resident of Haryana and used to drive Ecco vehicle which was attached with NDPL. Both Javed and Ashish used to drive that vehicle. Javed and Ashish used to take rest in the night hours at the shop. There was a toy shop adjacent to the shop of Javed Kabari. Due to winter season they used to cover their entire body under the blanket. Javed left for driving the Ecco vehicle and on his bedding Ashish slept after covering his body under the blanket. While he and Ashish were sleeping on different beddings the above accused persons attacked on Ashish and on hearing the noise he woke up. He also identified his clothes as Ex.PW34/Article-1 collectively.
15. During cross-examination he stated that he does not remember at what time Ashish reached the shop of Kabari.
He reached at the shop at 6:00 /6:15 pm. No person is working on the shop of Javed. He was not having any room to stay hence, he used to sleep outside the shop of Javed. Ashish used to drive the vehicle of NDPL. Only Ashish was the driver on that vehicle and sometime Javed also used to drive in the absence of Ashish. He used to sell junk collected by him to Javed only and none else. He consumed alcohol on 21.11.2016. Ashish never used to take liquor. Ashish also used to sleep outside the shop of Javed and Javed also used State Vs. Chhota Salman etc.. SC No.149/17 :: 9 ::
to sleep there. Javed was not having any residential house and that is why he used to sleep at the shop. On the day of incident he was sleeping in front of the toy shop situated adjacent to the shop of Javed. He had seen only three boys who had come to commit the offence. In front of the shop of Javed the junk was lying. No instruments are left in the open outside the shop. He had no talks with Ashish after reaching the hospital. He talked with Javed in the morning after regaining consciousness. He left the hospital as he was very much frightened and again slept in front of shop. From there he was again taken to the hospital by the police. He returned to the shop of Javed on foot from the hospital. People gathered at the shop at the time of incident, but he did not count the number. His statement was recorded only once in the hospital. The photographs of the accused persons were not shown to him before TIP. He had no money transaction with Ashish. He denied the suggestion that there was money transaction between him and Ashish or that he and Ashish consumed the liquor or that thereafter they had quarreled in which they inflicted injury on each other with the weapons which were lying in front of the shop.
16. During cross-examination for accused Salman he deposed that his statement was recorded on 23.11.2016 and thereafter, police did not record his statement. He told the State Vs. Chhota Salman etc.. SC No.149/17 :: 10 ::
police that he can identify only three of the persons. He denied the suggestion that he is giving statement at the instance of Javed. He had no meeting with any person on 30.07.2017 in connection with this case. A video recording is played on the mobile phone make Oppo. He admitted the video and stated that at that time he was consuming liquor.
The mobile phone is taken on record as Ex.PW7/Article X. He admitted that the voice in the video recording is also his. He does not know who were the persons present at that time. He stated that whatever he is speaking in the video is spoken by his free will. He denied the suggestion that he had deposed falsely at the instance of Javed and IO.
17. During cross-examination for accused Sunil he denied the suggestion that Sunil @ Lala S/o Sh. Dana Ram was standing in the test identification parade on 03.12.2016. he denied the suggestion that Sunil @ Lala was not among the assailants. He denied the suggestion that he had seen Sunil @ Lala in the jail and i.e. why he identified him in the court. He admitted that he had not told the name of the accused and he identified them on the basis of their faces. He had no document to show that he used to sell junk to Javed. He denied the suggestion that he has wrongly identified Sunil @ Lala in the court. Police had not shown him any CCTV footage. No question was put on behalf of Chhota Salman State Vs. Chhota Salman etc.. SC No.149/17 :: 11 ::
and therefore, the opportunity to cross examine was closed.
18. Lateron an application u/s 311 Cr.PC was moved which was allowed and the witness was re-called on 14.09.2017.
19. During cross-examination for accused Chhota Salman he stated that he was not paying any rent for sleeping outside the shop. He was staying there for the last 5-6 years. Ashish was staying there for the last two or two and half years before the incident. He had never given or taken any money to Javed or Ashish. He admitted that he was taking drinks and Ashish was not taking drinks. Ashish and Javed asked him many times not to take the drinks at the shop but he continued to take drinks. He had never taken drinks at the shop. He was having mobile phone about 2-3 years before the incident but the same was stolen and thereafter, he had never purchased the mobile phone. On 21.11.2016 he purchased one bottle of liquor from the liquor vend of sector-
11. He consumed the entire liquor outside the liquor vend. After consuming liquor he came to the shop of Javed. Javed was present there when he reached and Ashish was not there at that time. He reached the shop of Javed at about 6:00 or 6:30 pm. He does not know at what time Ashish came there as he lay down on his bed after reaching the shop. He also cannot tell the time when he woke up due to State Vs. Chhota Salman etc.. SC No.149/17 :: 12 ::
the incident as he was not having any wrist watch. He does not know at what time Javed left the spot. He never slept inside the shop. Javed never allowed him to sleep inside the shop as goods were lying inside the shop. Javed and Ashish were not angry with him due to the habit of drinking and they were also not happy. Ashish and Javed used to scold him and ask him not to drink. It is correct that the road in front of the place of occurrence lead towards Rithala on one side and Rohini on the other side. If a person is standing with back towards the shop then on the right side there is Rithala and on the left side there is Rohini. Across the road there are LIG flats. He does not know if Ashish used to keep any mobile phone. He woke up after sustaining injury and Ashish had already sustained injury. He raised alarm after sustaining injury. On his raising alarm the assailants ran away. He did not chase the assailants. He had seen the assailants running till the gate of Titiksha school. The assailants ran towards Rithala. He did not notice if any assailants ran towards Rohini. He does not know after how much time he came to know that Ashish had also sustained injury. He and Ashish were taken to hospital in the same PCR van. He was unconscious in PCR Van and therefore, did not tell any thing to the PCR officials. He became unconscious when he sat in the PCR Van. He does not know at what time he sat in the State Vs. Chhota Salman etc.. SC No.149/17 :: 13 ::
PCR van. Neighbours also collected there when PCR Van reached. He regained consciousness in the hospital at about 6:00 am. Doctor did not inquire from him as to how he sustained injury. Police met him in the hospital at about 6:00 am on 22.11.2016 and recorded his statement. Police did not keep him in the police station after he was discharged. He does not know any person by the name of Abid. He does not know if the video shown to him was prepared by Abid. He had not said in that video that he had not seen Chhota Salman at the time of incident or that photographs of Chhota Salman was shown to him by the police.
20. Video was recorded at the residence of accused Raman. He was taken there forcibly and video was prepared under force. He was also threatened there. There were four five more persons when this video was recorded. Whatever recorded in this video was said by him but under the threat.
The voice in the video is his. He had not made any complaint to the police that he was forcibly taken and his video was forcibly recorded. He had also not moved any application before any court asking for security. He denied the suggestion that he had told the true facts in the video with his own wish and consent or that he was subsequently threatened by the IO to face the consequences, if he did not support the case of investigating agency. He denied the State Vs. Chhota Salman etc.. SC No.149/17 :: 14 ::
suggestion that he had not seen Chhota Salman at the place of incident or near the spot at the time of incident.
21. He denied the suggestion that on the day of occurrence he was taking liquor with three friends at the shop of Javed and Ashish. Ashish objected to same but he forcibly made him drink some liquor upon which a scuffle had taken place between him and Ashish and they both sustained injuries or that during that scuffle he caused injuries to Ashish. When Ashish fell down his friends also ran away from the spot towards Rithala. He denied the suggestion that after the public persons gathered on the spot he ran away from the spot towards Rohini and that is why he was not found present on the spot when PCR took Ashish to the hospital from the spot. He denied the suggestion that he initially reached the hospital for treatment of his injuries at 12:30 midnight and on seeing the police he ran away or that he again went to the hospital at 3:46 am as there was pain in his injuries. He denied the suggestion that Chhota Salman had nothing to do with the present case or that he was never seen by him at the place of incident.
22. He was re-examined by the APP wherein he stated that he woke up only after he sustained injury and at that time he also heard the cries of Ashish. He denied the suggestion that he woke up on hearing the cries of Ashish.
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He stated that he could see the faces only of two assailants and could see the back of the third.
23. During cross-examination for accused Raman he stated that he cannot tell the colour of the clothes of accused persons due to night time. One of the assailant was wearing Monkey cap. One of the assailant was wearing Jacket. But he cannot tell about the other two assailants.
24. Dr. Narain Dabas was examined as PW-8. He conducted post mortem on the body of Ashish S/o Sh.
Rohtash. In the post mortem he found four injuries in the external examination which he detailed in the post mortem report. He opined that death is due to hemorrhagic shock consequent to multiple penetrating injuries on the body. Injury No. 1 to 4 could be caused by sharp edged weapon. Injury No.1, 2 and 3 individually and in combination with each other are sufficient to cause death in the ordinary course of nature. All injuries are ante mortem and are about one day in duration. The blood and viscera was preserved to rule out intoxication. He sealed the viscera along with the blood sample, blood sample in gauze piece and handed over to the IO along with sample seal. The time since death was within 6 hours. The testimony of the witness has gone unchallenged and uncontroverted.
25. ASI Jagdish was examined as PW-9. He deposed that State Vs. Chhota Salman etc.. SC No.149/17 :: 16 ::
on 22.11.2016 he was posted at PS: Prashant Vihar as duty officer from 12:00 midnight to 8:00 am. At 00:04:00 am he received information on intercom regarding quarrel near Titiksha school G-2/34 Sector-11 Rohini. He recorded DD No.3A and handed over the same to SI Vijay Kumar who left for the spot along with Ct. Sunny. He also informed the SHO about the information. The copy of the DD No.3A is proved as Ex.PW9/A. On the same day at about 2:50 am Ct. Sunny came with rukka sent by SI Vijay Kumar for registration of FIR. He got registered the FIR, computer generated copy of which is Ex.PW9/B. He made endorsement on the rukka which is Ex.PW9/C. The certificate is Ex.PW9/D. He handed over the copy of FIR and original rukka to Ct. Sunny for handing over the same to SI Vijay.
26. During cross-examination he deneid the suggestion that entries are ante timed and ante dated.
27. Ct. Bhagirath was examined as PW-10. He deposed that in the intervening night of 21 and 22 November 2016 he was posted at PCR VAN L-77 being Incharge from 8 pm to 8 am. At about 1145 pm an information was received from control room to reach House No.G-2/34 sector-11, Rohini. He along with driver of PCR reached the address. There they found one injured person Pankaj having injuries. They removed Pankaj form the spot to BSA hospital in the vehicle. State Vs. Chhota Salman etc.. SC No.149/17 :: 17 ::
One another injured was already removed to BSA hospital by PCR Van L-71 and he informed the control room accordingly.
28. During cross-examination he stated that there were no public persons on the spot when they reached. He does not know the time when the other injured was removed. He denied the suggestion that he did not visit the spot or did not remove the injured to the hospital.
29. ASI Jagbir was examined as PW-11. He was on the PCR Van L-71. He deposed that at about 11:30 pm on information from the control room regarding quarrel near Titiksha School H.No.G-2/34, Sector-11 he along with driver reached there. They found one injured person namely Ashish s/o Sh. Rohtash. On the way to the hospital the injured informed that 3-4 unknown male persons gave beatings to him and stabbed him and thereafter they ran away. He also told that there is one more injured. They informed the control room that there may be another injured on the spot and requested that another PCR van be sent. They got admitted injured in the BSA hospital.
30. During cross-examination he stated that his statement was recorded by the IO wherein he told that Ashish told him that there is one more injured on the spot. But this was confronted with Ex.PW11/D where it is not mentioned, however, it is mentioned that he informed the control room State Vs. Chhota Salman etc.. SC No.149/17 :: 18 ::
that there may be one more injured on the spot. 2 to 4 public persons came on the spot when he reached there. Only injured was present when he reached there and there was another person who was lying nearby under a quilt. Who informed that he had also sustained injury. He denied the suggestion that no other person was lying under the quilt. Both the persons were found outside the shop of Kabari. He was already knowing that there was a kabari shop as his duty was there for the last 5 to 6 months. They remained on the spot hardly for one to two minutes. He does not remember on which day his statement was recorded. He denied the suggestion that there was no other injured on the spot or that he did not shift him to the hospital.
31. Vinay Pal was examined as PW-12. On 27.12.2016 he received three sealed parcels duly sealed from MHC(M) vide RC NO.169/21/16 and deposited the same at FSL. From the FSL he obtained the acknowledgment and on return to the police station handed over the same to MHC(M). Nobody tampered with the case property till it remained in his possession.
32. During cross-examination he denied the suggestion that case property was tampered with.
33. Javed was examined as PW-13. He deposed that he along with his brother Rashid Malik @ Rahul was engaged in State Vs. Chhota Salman etc.. SC No.149/17 :: 19 ::
the business of scrap and was having a shop of Kabri at G- 2/34, Sector-11, Rohini, Delhi. They owned two vehicles i.e. Ecco car No. DL 1YC 5694 and Santro car No:DL 4C 2027 attached with NDPL. Santro vehicle is driven by Shahruk, brother-in-law of his brother Rashid Malik. The Ecco vehicle was driven by Ashish and him turn by turn. Ecco vehicle was engaged with the NDPL for 24 hrs. When Ashish used to drive the Ecco vehicle he used to sleep outside the shop No. G-2/34 Sector-11, Rohini and when he used to drive the Ecco vehicle Ashish used to sleep outside the shop. On 21.11.2016 at about 8 pm he left with Ecco vehicle to the office of NDPL. At about 11:45 pm he received telephone call of Abrar who informed that Ashish and Pankaj have been stabbed with the knife and those persons had ran away. He immediately rushed to his shop and came to know that police had already removed both the injured to the BSA hospital. He also reached BSA hospital where Ashish and Pankaj were under treatment. He came to know that Ashish had expired.
He doubted that Ashish and Pankaj were stabbed by Salman and his brothers. There was a dispute of money in between accused Salman his brother and his family members. He deposed that there was an apartment of SFS flats from where waste articles were being collected by accused Salman with the permission of RWA now the said contract State Vs. Chhota Salman etc.. SC No.149/17 :: 20 ::
was with this witness. He correctly identified Salman son of his maternal uncle.
34. During cross-examination he stated that he is not confirm if he handed over rent agreement to the police. There was no agreement between him and Ashish, that Ashish will drive his Ecco vehicle. He does not know the residential address of Pankaj but he is residing with his brother at Rithala. He never asked Pankaj to provide proof of his residential address. He was not having an ID card including Aadhar card of Pankaj. He was confronted with his earlier statement where it was not mentioned that Abrar informed him about the stabbing to Ashish and Pankaj at about 11:45 pm. Infact only the name of Abrar is not there and the other facts are there. The record of his entry and exit in NDPL is maintained by the staff of NDPL. His entry was recorded but exit could not be recorded as he left the office in hurry after receiving phone call. He handed over his vehicle to linemen Krishan while leaving the office. He does not remember the complete number of Abrar. Abrar was not present on the spot. He remained on the spot for about 2-3 minutes. No public person was present there. He does not make any complainant against Salman or his family members. He denied the suggestion that no altercation had ever taken place with Salman, his family members and this State Vs. Chhota Salman etc.. SC No.149/17 :: 21 ::
witness or that is why he did not make any complaint to the police. The contract to collect the waste items from SFS flats was in writing. He did not handed over the copy of that agreement to the police. There is criminal case of theft pending against him. His statement was recorded in the police station on 30.11.2016. He denied the suggestion that he is having good relations with the police or that is why he falsely implicated the accused in this case in connivance with the police. He reached the hospital at 12:00 midnight. Police was present in the hospital when he reached. He saw SI Vijay in the hospital along with the other police officials. There is a distance of about 500 meters between the place of incident and his residence. He denied the suggestion that neither he nor Ashish used to sleep outside the shop. He does not know from where presently Salman and his family are doing the business. The shop of Salman has been closed as there was complaint by General public. He denied the suggestion that he in connivance with the police got the shop of Salman and his family closed. In reply to the court question he told that the shop of Salman was closed during day time on the day of incident itself.
35. SI Rajneesh was examined as PW-14. He deposed that on 28.11.2016 he was posted at PS: Prashant Vihar as SI. On that day he along with Inspector Hans Raj, Ct. Kiran State Vs. Chhota Salman etc.. SC No.149/17 :: 22 ::
Pal left the police station. They reached Vijay Vihar in search of the accused but he was not found at his house. IO received secret information that wanted accused could be apprehended from Vijay Vihar Ganda Nala, near petrol pump. IO requested public persons to join the raiding party but none agreed. They along with secret informer reached near the petrol pump of Vijay Vihar. On the pointing out of the secret informer one boy was apprehended who disclosed his name as Chhota Salman. IO interrogated and arrested the accused vide arrest memo Ex.PW14/A. His personal search was conducted vide memo Ex.PW14/B. Accused was found in possession of one mobile phone make Samsung without sim. The said mobile phone was seized vide memo Ex.PW14/C. The accused was taken to the police station where he was interrogated. Accused made the disclosure statement Ex.xPW14/D.
36. On 29.11.2016 he again joined the investigation with the IO and constable Kiran Pal. At about 5:00 pm they reached at sector-24, Rohini at the house of accused Lala but he was not found there. They took the position near the house of accused Lala. One tempo entered in that street. Two persons were there in that tempo. The tempo was got stopped. IO made inquiries from those persons. The driver of the tempo disclosed his name as Lala @ Sunil. He was State Vs. Chhota Salman etc.. SC No.149/17 :: 23 ::
arrested vide arrest memo Ex.PW14/E and his personal search was conducted vide memo Ex.PW14/F. From the possession of accused Lala @ Sunil one phone make I-tell was recovered having SIM of vodafone. It was seized vide memo Ex.PW14/G. Accused made the disclosure statement Ex.PW14/H. The witness has identified both the accused persons and also the mobile phone recovered from Chhota Salman as Ex.PW14/Article-1 and the mobile phone recovered from Lala @ Sunil as Ex.PW14/Article-2.
37. During cross-examination for accused Salman he stated that accused made the disclosure statement during interrogation by the IO. He denied the suggestion that IO did not interrogate the accused or that he did not make any disclosure statement.
38. During cross-examination for accused Sunil @ Lala and for accused Raman he denied the suggestion that signature of accused Sunil @ Lala were taken on blank papers which were lateron converted into various documents including the arrest memo and the disclosure statements.
39. During cross-examination for accused Chhota Salman he stated that he did not tell the IO in his statement that secret informer informed that accused Chhota Salman can be apprehended near ganda nala. IO was near him and he received the secret information. He does not know if the IO State Vs. Chhota Salman etc.. SC No.149/17 :: 24 ::
noted down the names and addresses of the public persons who were asked to join the investigation. Arrest memo of Chhota Salman was prepared at 5:15 pm, thereafter, the personal search memo was prepared. The memos are in the handwriting of IO. It took them 20 minutes in preparing these memos. They were in private vehicle number of which he does not remember. He denied the suggestion that signatures of accused were taken on blank papers which were lateron converted into different documents.
40. Lady Ct. Babita was examined as PW-15. On 21.11.2016 she was posted at CPCR Police Headquarter and was working on channel No.115. At 23:27:16 hrs she received information from mobile Phone No.9650044092 and Lakshit Gaur informed about quarrel near sector-11, Rohini, H.No.G-2/34 Titiksha School and that there is a injured. She flashed this message. She proved the copy of PCR form as Ex.PW15/A.
41. During cross-examination she stated that the caller did not inform as to how many persons were quarrelling and how many injured were there.
42. Shishr Malhotra, Nodal Officer Aircel Limited was examined as PW-16. He deposed that on 27.01.2017 he handed over the certified copy of the customer application form along with the voter ID card of the Daya Prashad State Vs. Chhota Salman etc.. SC No.149/17 :: 25 ::
regarding mobile phone No.75511564624. This phone number was issued in the name of Daya Prashad s/o Sh. Shiv Nath Gupta. The copy of the customer application form is proved as Ex.PW16/A. Copy of the ID card annexed with the form is Ex.PW16/B. The call detail record of the above said number for the period 15.11.2016 to 28.11.2016 running into 11 pages is proved as Ex.PW16/C. He also proved the cell ID chart as Ex.PW16/D. The certificate u/s 65B is proved as Ex.PW16/E. The covering letter vide which all these documents were sent to the police is proved as Ex.PW16/F.
43. He also brought the record of mobile phone No.7053025701. As per the record it was issued in the name of Rohit S/o Sh. Vijender Kumar. The copy of the customer application form is proved as Ex.PW16/G. The copy of the Aadhar card annexed with the customer application form is proved as Ex.PW16/H. The call detail record of the phone number for the period 15.11.2016 to 30.11.2016 running into 14 pages is proved as Ex.PW16/J. The cell ID chart is Ex.PW16/A and the certificate u/s 65B Evidence Act is Ex.PW16/L. These documents were handed over to the police with covering letter Ex.PW16/M.
44. During cross-examination for accused Salman he denied the suggestion that these records were manipulated on the direction of the IO.
State Vs. Chhota Salman etc.. SC No.149/17 :: 26 ::
45. Israr Babu was examined as PW-17. He proved the record of mobile Phone No.8377072632. As per record it was issued in the name of Sunil Kumar S/o Sh. Ram Lal. Copy of the customer application form is proved as Ex.PW17/A. The copy of Aadhar card annexed with the customer application form is proved as Ex.PW17/B. The call detail record of the phone number from 15.11.2016 to 30.11.2016 running into five pages is Ex.PW17/C. The certificate u/s 65B Evidence Act is Ex.PW17/D. The documents were handed over to the police with covering letter Ex.PW17/E. He also deposed that mobile phone number 9643220762 is now ported out to Idea cellular company with effect from 12.10.2015. The report in this regard is proved as Ex.PW17/F.
46. During cross-examination he denied the suggestion that data was tampered with or manipulated.
47. Chander Shekhar Nodal Officer, Bharti Airtel Limited was examined as PW-18. He proved the record of mobile phone number 9717825490. As per record it was issued in the name of Salman Khan S/o Sh. Ismail Khan. The copy of the customer application form is proved as Ex.PW18/A. The copy of the driving license annexed with the customer application form is Ex.PW18/B. The call detail record for the period 15.11.2016 to 30.11.2016 running into two pages is Ex.PW18/C. He also proved the record of mobile phone State Vs. Chhota Salman etc.. SC No.149/17 :: 27 ::
No.8130105442. As per the record this mobile phone number was issued in the name of Mahender s/o Sh. Shravan. The copy of the customer application form is proved as Ex.PW18/D. The copy of the driving license annexed and of Pan card annexed with the customer application form are Ex.PW18/E and Ex.PW18/F. The call detail record of this phone number from 15.11.2016 to 30.11.2016 running into 1 page is Ex.PW18/G.
48. He also proved the record of mobile phone No:9560493470. As per record this mobile phone was issued in the name of Shahrukh Malik S/o Sh. Israil Malik. Copy of customer application form is proved as Ex.PW18/H. The copy of the voter ID card annexed with the customer application form is proved as Ex.PW18/I. The call detail record of this phone number for the period 15.11.2016 to 30.11.2016 running into 12 pages is Ex.PW18/J. He also handed over the cell ID chart of the company as Ex.PW18/K running into 3 pages. The certificate u/s 65B Evidence Act for the CDR is proved as Ex.PW18/L.
49. During cross-examination he denied the suggestion that call detail record was manipulated as per the direction of the IO.
50. Yashbir Singh was examined as PW-19. He deposed that on 09.04.2012 he let out shop No.G-2/34, Sector-11, State Vs. Chhota Salman etc.. SC No.149/17 :: 28 ::
Rohini to Rashid Malik vide rent agreement, photocopy of which is Ex.PW19/A. The said shop was in the name of his wife Smt. Sanju Sirohi. Rashid Malik was running a kabari shop from the above said shop with his brother Javed. The photocopy of the rent agreement was seized vide memo Ex.PW19/A.
51. During cross-examination he stated that the tenancy was for a period of 11 months at the rent was Rs.8000/- per month. He denied the suggestion that the tenancy was not with Rahul @ Rashid. He deposed that they are still his tenants.
52. Hanuman Singh was examined as PW-20. He deposed that on 10.12.2014 Asha Rani wife of Sh. S.S. Arora let out shop No.A-3/109 Sector-11, Rohini Delhi i.e. shop No.4 to Israil Malik vide rent agreement photocopy of which is Ex.PW20/A running into four pages. The said shop is still in the possession of Israil Malik who used to run a kabari shop. The photocopy of the rent agreement was seized by the police vide memo Ex.PW20/B.
53. During cross-examination he stated that the said shop is lying closed since the month of December 2016.
54. Sagar was examined as PW-21. He did not support the prosecution case. He stated that he does not know anything about this case. He was having mobile phone No. State Vs. Chhota Salman etc.. SC No.149/17 :: 29 ::
9650373422 in his Nokia handset. He was cross-examined by Ld. APP. He stated that he does not know any person by the name of Chhota Salman. Accused was also pointed out to him but he stated that he does not know him. He denied the suggestion that he handed over mobile set of Samsung white colour to Chhota Salman or that Chhota Salman used to talk to him on his mobile phone number. Witness was confronted with the statement Ex.PW21/A. Mobile phone Ex.PW14/Article-1 was also shown to him but he denied that it is his mobile phone which he handed over to Chhota Salman. The testimony of this witness has gone unchallenged and uncontroverted.
55. Ms. Shashi Bala Pahuja was examined as PW-22. She examined the exhibits in this case and prepared the DNA finger printing report which is Ex.PW22/A. The testimony of this witness has gone unchallenged and uncontroverted.
56. Ct. Sunny was examined as PW-23. He deposed that on the intervening night of 21/22.11.2016 on receipt of DD No.3A he along with SI Vijay reached at G-2/34 Sector-11, Rohini near Titksha Public School. They came to know that injured has been removed to BSA Hospital. He remained at the spot and IO went to the hospital. On the spot there was blood on the ground and on the bedding lying in front of the State Vs. Chhota Salman etc.. SC No.149/17 :: 30 ::
shop on a chabutra. At about 1:30 am SI Vijay came back on the spot. After some time crime team also reached the spot and inspected the scene of crime. Photographer took the photographs. IO prepared the rukka and handed over to him at 2:30 am. He went to the police station and got the case registered. He came back on the spot and handed over the original rukka and copy of FIR to SI Vijay Kumar for further investigation. Blood was found on the bedding, the portion of the bedding was cut with the help of scissor. It was put in a plastic container and sealed. The blood stained concrete was also broken, put in a plastic container and sealed with the seal of VS. Both these containers were seized vide seizure memo Ex.PW23/A. Thereafter, they returned to the police station and both these containers were deposited in the malkana.
57. On 10.01.2017 on the directions of IO he received 9 sealed parcels from the MHC(M) vide RC No.5/21/17. One more sealed parcel vide RC No.6/21/17 and deposited the same in the FSL. He obtained the acknowledgment. He returned to the police station and handed over the acknowledgment to the MHC(M). No one tampered with the case property till the same remained in his possession. He identified the blood stained piece of the mattress /gadda as Ex.PW23/Article-1. The mattress is identified as State Vs. Chhota Salman etc.. SC No.149/17 :: 31 ::
Ex.PW23/Article-2. Blood stained pieces of concrete are identified as Ex.PW23/Article-3. Pieces of concrete as Ex.PW23/Article-4.
58. During cross-examination he stated that they reached at the spot at about 12:15 midnight. No person was present there. They came to know from PCR that two public persons were present at the spot when injured was removed to the hospital. He does not know the names of those public persons. SI Vijay left for the hospital and he remained at the spot. During his stay at the spot one or two public persons reached there but he does not know the names of those persons. He did not make any inquiry from those persons. He denied the suggestion that he was not on the spot and i.e. why he does not know the names of those public persons. Crime team reached at the spot at about 8:30 am. There were 4-5 officials in the crime team. After the crime team left he went to the hospital. SI Vijay prepared the rukka on the spot.
59. He does not know how many photographs were taken by the crime team. Titiksha school is about 50 meters away from the spot. No security guard was present at Titiksha school at that time. He does not know how many CCTV cameras were installed at or near the scene of crime. He denied the suggestion that he did not visit the scene of crime. State Vs. Chhota Salman etc.. SC No.149/17 :: 32 ::
The scissor and hammer were lying in the shop of kabari and the same were used in cutting the blood stained portion of bedding and the blood stained concrete and earth control sample. He does not know if the shop of Kabari was already open or got opened. He denied the suggestion that concrete and bedding were taken from hospital or the blood was poured on the same. He denied the suggestion that case property was planted upon the accused persons.
60. Dr. Pawan SR Surgery BSA hospital was examined as PW-24. On 22.11.2016 he was working in BSA hospital. Patient Pankaj was referred by CMO with alleged history of stab injury. He examined the patient. The patient was conscious, oriented, abdomen soft, non tander, no distended, chest compression test negative. Patient was admitted in surgery emergency for conservative treatment. He proved his noting at point X-1 on the MLC Ex.PW6/A.
61. During cross-examination he stated that it is the duty of forensic department to point out if the injuries were with one weapon or different weapons.
62. Dr. Satya Ranjan Panda was examined as PW-25. On 22.04.2016 patient Ashish s/o Sh. Rohtash was brought by PCR HC Jagbir with alleged history of stab injury as told by the patient himself and HC Jagbir. The patient was conscious but drowsy. Smell of alcohol in the breath was present. Pulse State Vs. Chhota Salman etc.. SC No.149/17 :: 33 ::
was feeble and BP was very low. Per abdomen soft and there was a sharp incised wound of size 3 x 0.5 cm with mass protruding out over right side of abdomen. On local examination sharp incised wound over lateral aspect of left knee size 3 x1 cm mass protruding out and sharp incised wound over lateral aspect of left thigh of size 2x1 cm. The patient was advised surgery and ortho for opinion and further management. Blood sample and clothes were sealed and handed over to the IO. The patient was unfit. The MLC is proved as Ex.PW25/A.
63. Patient Pankaj was also brought by PCR Ct. Bhagirath at 12:13 am on 22.04.2016. The patient left from casualty at that time. The patient came back at the casualty at 3:45 am with alleged history of stab injury approximately four hours back as told by the patient himself. The patient was conscious and oriented. Smell of alcohol was present in the breath. On local examination sharp incised wound of approximately 2x1x1 cm over right hip and multiple abrasions on chest and abdomen. Patient was referred to surgery and ortho for further management. MLC was prepared, same is Ex.PW6/A.
64. During cross-examination he stated that patient was unstable therefore, percentage of alcohol could not be measured. Patient could not tell the names of assailants as State Vs. Chhota Salman etc.. SC No.149/17 :: 34 ::
he was unstable. Any patient could be normal till his breathe analysis is 100 mg/100 ml of blood.
65. HC Anil was examined as PW-26. He was working as MHC(M) and proved the entries in register No.19 as Ex.PW26/A to Ex.PW26/G.
66. On 27.12.2016 he sent 3 plastic jars and sample seal to FSL through Ct. Vijay Pal vide RC No.169/21/16. The photocopy of the RC is proved as Ex.PW26/H. Ct. Vijay on return handed over the acknowledgment of FSL to him copy of which is Ex.PW26/I. He also made entry in this regard in register No.19 at point X-1.
67. On 10.01.2017 he handed over 9 pullandas and one sample seal to Ct. Sunny for depositing the same in FSL vide RC No.5/21/17 copy of which is proved as Ex.PW26/J. On return Ct. Sunny handed over the acknowledgment of FSL to him copy of which is proved as Ex.PW26/K. He also made entry at point X-2 in register No.19 in this regard.
68. On 10.01.2017 he handed over one plastic jar containing pendrive sealed with the seal of HR to Ct. Sunny vide road certificate No.6/21/17 copy of which is Ex.PW26/L. Ct. Sunny deposited the same and obtained the acknowledgment of FSL which is Ex.PW26/M. He made entry in register No.19 at point X3. He stated that till exhibits remained in his possession nobody tampered with the same.
State Vs. Chhota Salman etc.. SC No.149/17 :: 35 ::
The testimony of this witness has gone unachallenged and uncontroverted.
69. Sh. Rinkle Gupta was examined as PW-27. He stated that he does not know anything about this case. He know Raman Singh who used to reside in his neighbourhood. He was cross-examined by Ld. APP wherein he admitted that customer application form Ex.PW16/A bears the photograph of his father and voter ID card Ex.PW16/B is of his father. But he denied the suggestion that Ex.PW16/A and Ex.PW16/B bears the signature of his father. He stated that he obtained the two mobile SIM cards on the ID of his father but one of the SIM card was lost in the house and the other SIM card was used by him till he consumed the balance. He cannot tell which SIM went missing out of the two. He denied the suggestion that he had handed over the mobile SIM No.75511564622 to Raman about 6 months ago prior to
23.02.2017 or that Raman was using that mobile phone number. He is presently using mobile No.9555505048. He denied the suggestion that accused used to talk to him usually on mobile No.7551156462. He denied the suggestion that Ex.PW16/A and Ex.PW16/B was signed by him or that he is deposing falsely. He was confronted with his statement Ex.PW27/A. No question was put to the witness by the defence.
State Vs. Chhota Salman etc.. SC No.149/17 :: 36 ::
70. Sh. Govinda was examined as PW-28. He stated that he does not know anything. He does not know accused Chhota Salman. He never used any mobile phone. He was also cross-examined by Ld. Addl. PP. He stated that he never used mobile Phone No.9711794509. He also denied the suggestion that Chhota Salman was using the mobile phone number 7053025701 or that he used to talk with him on that mobile phone. He was also confronted with his earlier statement Ex.PW28/A. No question was put to the witness by the defence.
71. Faisal Raza was examined as PW-29. He is residing at H.No.G-2/30, Sector-11 Rohini, Delhi. He had installed one CCTV Camera outside his house. During the course of investigation on the request of IO he handed over the CCTV footage from the DVR installed at his house No.G-2/30, Sector-11, Rohini in pen drive from 11 to 12 pm on 21.11.2016. The pendrive was handed over to the IO on
24.11.2016. He also proved the certificate u/s 65B Evidence Act as Ex.PW29/A. The original DVR is still available with him. He identified the pendrive as Ex.PW29/A. The pendrive was also played on the computer system installed in the court and on seeing the same he stated that it is the same footage, copy of which he gave in this pendrive to police
72. During cross examination by the defence he denied State Vs. Chhota Salman etc.. SC No.149/17 :: 37 ::
the suggestion that he is deposing falsely or that the recording is not of the camera installed outside his house.
73. HC Venketesh was exmained as PW-13. He deposed that on 10.12.2016 he joined the investigation with Inspector Hans Raj and Ct. Manoj. Accused Raman was interrogated. Accused led them to Mangol Puri near park for recovery of weapon of offence. Efforts were made but no weapon of offence could be recovered. Accused was again interrogated and this time he revealed that he had given the weapon of offence to Kali and that he can get recovered his blood stained clothes from his house which he was wearing at the time of offence. The supplementary disclosure statement of accused is Ex.PW30/A. Accused led them to house at G-87, Vijay Vihar phase-I from one almirah accused Raman produced one blood stained grey colour T-shirt having blood stains on the back side. The said T-shirt was wrapped in a piece of cloth, sealed with the seal of HR and seized vide memo Ex.PW30B. He identified the T-shirt as Ex.PW30/ Article-1.
74. During cross-examination on behalf of accused Raman he stated that they left the police station in QRT vehicle. They were five persons including driver. He was confronted with his statement where it was not found mentioned that the accused Raman told them that he handed State Vs. Chhota Salman etc.. SC No.149/17 :: 38 ::
over knife to Kali. The house of Raman was triple storied. There were tiles on outer side of the house. He does not know how many rooms were there on the second floor as they had not entered all the rooms. The accused led them to the second floor. One female was there in the house of the accused but he does not know the relation of that lady with the accused. IO did not obtain the signatures of that lady on the seizure memo. He denied the suggestion that seizure memo was prepared while sitting in the police station or that the T-shirt was planted upon the accused. The witness was not cross-examined on behalf of the other accused persons.
75. Dr. Uday Kumar Singh was examined as PW-31. He was deputed by the MS of the hospital to depose in place of Dr. Divya, SR Radiology as she had left and her present whereabouts were not known. He proved the report of Dr. Divya that there was no bony abnormality in the X-ray report as given by Dr. Divya which is Ex.PW31/A. The testimony of this witness has gone unchallenged and uncontroverted.
76. SI Harish Chander Pathak was examined as PW-32. He generated the PCR form of dt.21.11.2016 which was prepared on receiving information at 23:27:16 hrs and dispatched 23:28:31 hrs from Extension No.115. The call was received from mobile No.9650044092. He proved the certificate u/s 65B Evidence Act as Ex.PW32/A. The State Vs. Chhota Salman etc.. SC No.149/17 :: 39 ::
testimony of this witness has gone unchallenged and uncontroverted.
77. Ct. Naveen was examined as PW-33. On 03.01.2017 he accompanied Inspector Hans Raj and reached house No.G-2/34-35, Sector-11, Rohini. He took the measurement and prepared rough notes at the instance of IO/Inspector Hans Raj. On 04.01.2017 he prepared the scaled site plan Ex.PW33/A having his signatures at point A. After preparing the scaled plan he destroyed the rough notes.
78. During cross-examination by the defence he stated that he does not remember the time of his reaching the place of incident. He denied the suggestion that he has not gone to the spot or had not taken any rough notes or measurements.
79. SI Vijay Kumar was examined as PW-34. He reched the spot of incident along with Ct. Sunny examined as PW-
23. No eye witness was found on the spot. No injured was at the spot. They came to know that injured had already been removed to hospital by PCR Van. He left Ct. Sunny on the spot to guard the scene of crime and reached BSA hospital. He found Ashish admitted in the hospital vide MLC No.15204. The doctor opined the patient unfit for statement. He also came to know that one Pankaj s/o Sh.Ram Vilas was also admitted but he had left the hospital. No eye witness was found in the hospital. Doctor/handed over him a pullanda State Vs. Chhota Salman etc.. SC No.149/17 :: 40 ::
containing clothes of Ashish and the blood sample along with sample seal which he seized vide memo Ex.PW34/A. He came back on the scene of crime. Crime team was called. Crime team inspected the scene of crime and the photographer of the crime team took the photographs. He made endorsement Ex.PW34/B on DD No.3A Ex.PW9/A. He handed over the rukka to Ct. Sunny who went to the police station for registration of FIR. He prepared the site plan Ex.PW34/C having his signatures at point A. Ct. Sunny came back on the spot and handed over the original rukka and copy of FIR to him. Blood was found on the chabutra and on the ground in front of the shop. He lifted the blood with the help of cotton, put in a plastic container, wrapped with the doctor tape sealed with the seal of VK and given mark-1. Blood was found on the bedding. The bedding was cut with the help of scissor. The piece of bedding having blood stains was put in a plastic container wrapped with doctor tape, sealed with the seal of VK and given mark-2. To the North side of the shop on the chabutra there was another bedding having blood stains. The piece of that bedding was also cut with the scissor, that blood stained piece was put in a plastic container, wrapped with doctor tape sealed with the seal of BK and given mark-3. The blood stained concrete was also taken, put in plastic container, wrapped with doctor tape and State Vs. Chhota Salman etc.. SC No.149/17 :: 41 ::
sealed with the seal of VK. This parcel was given mark-4.
The concrete sample was also broken from in front of the shop, put in a plastic container wrapped with doctor tape, sealed with the seal of VK and given mark-5. All these parcels were seized vide memo Ex.PW23/A. Thereafter, he along with Ct. Sunny went to BSA hospital and collected MLCs of both the injured. He met injured Pankaj but he was under the influence of liquor therefore, his statement could not be recorded. He returned to the police station and deposited the case property with the MHC(M).
80. On 22.11.2016 information was received that Ashish had expired. He reached BSA hospital. IO and Inspector Hans Raj also reached the hospital. By the order of the SHO the further investigation was handed over to Inspector Hans Raj. The body of Ashish was got preserved in the mortuary of BSA hospital. The body was identified by Rohtash and Jagdish. IO prepared the inquest papers. The post mortem was got conducted and the report is Ex.PW8/A. After the post mortem doctor handed over 3 plastic jars and two envelopes containing blood sample and sample seal of the hospital. IO seized the same vide seizure memo Ex.PW34/D.
81. On 24.11.2016 Pankaj gave his blood stained pant of Navy Blue colour, one blood stained under wear of mehndi colour, one blood stained baniyan and one blood stained T-
State Vs. Chhota Salman etc.. SC No.149/17 :: 42 ::
shirt to the IO. The same were put in a cardboard box, sealed with the seal of HR and seized vide memo Ex.PW7/A. The witness has identified the case property as Ex.PW23/Article-1 to Ex.PW23/Article-4. He also identified the clothes of Pankaj Gupta collectively Ex.PW32/Article-1.
82. During cross-examination for accused Sunil he stated that he reached the spot at about 12:20 am. No injured was present at the spot. No eye witness was there. He remained there for about 10 to 12 minutes. He tried to find out from the persons present there but none was able to tell anything about the incident. Crime team remained at the spot for about 30 minutes. He does not know how many photographs were taken by the member of the crime team. No public person was present at the time of visit of the crime team. He met injured Pankaj at about 4:30 am on the same day. He reached the conclusion that Pankaj was under the influence of liquor as he was not able to give any coherent reply. He denied the suggestion that injured Pankaj did not beat him or that he did not record the statement. He denied the suggestion that he prepared all the pullandas while sitting in the police station or that is why none of the seizure memo bears signatures of any public person. The distance between spot and Titiksha school is 40-45 meters but he did not measure the same. There was no CCTV camera at the State Vs. Chhota Salman etc.. SC No.149/17 :: 43 ::
Titiksha School building. The gate of Titiksha school is about 100 meters from the scene of crime. He denied the suggestion that he did not visit the scene of crime or that there is a CCTV camera installed at the gate of Titksha school. During cross-examination for the remaining accused persons he stated that no public person was present when he reached the spot. When he again reached the spot from hospital, Security guard of H-block came there with beat officer. He cannot tell the name of that security guard. The chheni and hammer were lying in a water cooler outside the shop. With the help of that chheni and hammer he broke the pieces of concrete. Neither IO asked him nor he himself told that chheni and hammer were lying in the water cooler. He denied the suggestion that no piece of concrete was broken from the spot. He denied the suggestion that the same were taken from some where else and planted upon the accused persons. The scissor was also lying in the old water colour with the help of which he cut the blood stained portion of the bedding. There was no blood on the scissor. He denied the suggestion that he did not cut the piece of the bedding or that no blood stained bedding was taken in possession from the spot. He remained on the spot for about 3 hours. After coming back from the hospital. Pankaj went to the hospital, his MLC was prepared but thereafter, he left without any State Vs. Chhota Salman etc.. SC No.149/17 :: 44 ::
treatment. He does not know who brought injured Pankaj to the hospital but when he again went to the hospital he was there in the hospital. He noticed one CCTV Camera installed at the shop in front of the scene of crime. That CCTV camera was found installed at the automobile mechanic shop owned by Amit, but the same was not focused or taking the footage of the scene of crime. He denied the suggestion that Javed and his brother Rashid Malik wanted that accused Salman shall vacate the shop or to implicate in false case registered against him. He does not know if police officers of Prashant Vihar had forcibly closed the shop of Salman from where he and his brother were dealing in scrap. It is not in his knowledge if that shop is still lying closed. He does not know if Chhota Salman was shown to the witness or his photograph was shown to the witness. He denied the suggestion that blood stained clothes of Pankaj were planted in the case.
83. Inspector Hans Raj was examined as PW-35. He was posted in PS: Prashant Vihar as Inspector investigation. On 22.11.2016 on the directions of SHO investigation was assigned to him. He reached the hospital on getting information about death of Ashish. He met SI Vijay, SHO, Ct.
Vijay and other staff. SI Vijay handed over to him case file. The dead body of Ashish was got preserved in the mortuary State Vs. Chhota Salman etc.. SC No.149/17 :: 45 ::
of BSA hospital. Body was identified by Rohtash and Jagdish vide statements Ex.PW35/A and Ex.PW4/A. He prepared inquest papers Ex.PW35/B. The post mortem was conducted. After post mortem dead body was handed over to the relatives. The doctor handed over him the exhibits and the sample seal which were seized vide memo Ex.PW34/D. Thereafter, he along with SI Vijay reached the scene of crime and searched for the CCTV installed at/near the scene of crime. He found one CCTV installed at G-2/30 sector-11. Rohini, Delhi at the house of Faisal Raja. He saw the CCTV footage and found 3 boys coming to the spot and also seen running from the spot.
84. On 23.11.2017 SI Rajneesh produced one Javed before him and he recorded his statement. He also recorded the statement of Pankaj Gupta.
85. On 24.11.2016 Pankaj Gupta came to the police station and produced his blood stained clothes which were seized vide memo Ex.PW7/A.
86. On 21.11.2016 the CCTV footage of camera installed outside the house of Faisal Raja was seized vide memo Ex.PW35/C.
87. On 25.11.2016 on the receipt of secret information Juvenile Adil was apprehended. Adil led them to house of Sunil @ Lala, Chhota Salman and Kapil but they were not State Vs. Chhota Salman etc.. SC No.149/17 :: 46 ::
found at their houses.
88. On 28.11.2016 he along with SI Rajneesh and Ct.
Kiran Pal went in search of the accused persons. On the secret information, they reached the Ganda nala near petrol pump Vijay Vihar. On the pointing out of secret information Chhota Salman was apprehended. He was arrested vide arrest memo Ex.PW14/A. His personal search was conducted vide memo ExPW14/B. One mobile phone make Samsung without sim was found in possession of Chhota Salman. The mobile phone was seized vide memo Ex.PW14/C. Accused Chhota Salman made the disclosure statement Ex.PW14/D. Accused Chhota Salman was got medically examined.
89. On 29.11.2016 accused was produced in the court with muffled face and an application for TIP was moved. Accused was sent to J/C. They also visited the house of Chhota Salman but he was not found there. They took position near the house of accused Lala. At about 5:00 pm one tempo entered the street. There were two persons in that tempo. The tempo was got stopped. The person who was driving the tempo disclosed his name as Lala @ Sunil. He was arrested vide memo ExPW14/E. His personal search was conducted vide memo Ex.PW14/F. In the search of Lala @ Sunil one mobile phone of I-tel was recovered which was State Vs. Chhota Salman etc.. SC No.149/17 :: 47 ::
seized vide memo Ex.PW14/G. There was SIM of Vodafone in that mobile phone. Accused also made the disclosure statement Ex.PW14/H.
90. On 30.11.2016 accused Sunil @ Lala was produced in the court and was sent to J/C. The TIP of accused Chhota Salman was fixed for 03.12.2016. Pankaj Gupta participated in that TIP. After the TIP proceedings he obtained the copy of the proceedings.
91. On 05.12.2016 he along with Ct. Kiran Pal reached court room No.110 where accused Raman surrendered. He with the permission of the court interrogated the accused Raman and arrested him vide arrest memo Ex.PW35/D his personal search was conducted vide memo Ex.PW35/E. He recorded the disclosure statement of accused Raman which is Ex.PW35/F. Accused was produced before the court in muffled face and an application for TIP was moved. The TIP was fixed for 07.12.2016 at Tihar Jail. After TIP he obtained the copy of TIP proceedings. Thereafter he obtained the police custody remand of accused persons. Accused Chhota Salman pointed out the place of occurrence vide memo Ex.PW35/G and also he made the supplementary disclosure statement Ex.PW35/H. Accused Raman led to various places in search of the weapon of offence but the same could not be recovered.
State Vs. Chhota Salman etc.. SC No.149/17 :: 48 ::
92. On 10.12.2016 accused Raman made the supplementary disclosure statement and got recovered his blood stained T-shirt of grey colour which was seized vide memo Ex.PW30/B. Accused Raman also pointed out the place of occurrence vide memo Ex.PW35/I. On 12.12.2016 he collected the mobile crime team report and placed the same on the file.
93. On 14.12.2016 accused Salman Khan came to the police station and surrendered. He was interrogated and arrested vide arrest memo Ex.PW35/J. His personal search was conducted vide memo Ex.PW35/K. Accused Salman Khan made the disclosure statement Ex.PW35/L.
94. On 15.12.2016 accused Salman Khan was taken out of lock up and interrogated. He was produced in the court. His police custody remand was taken. Accused pointed out the place of occurrence vide memo Ex.PW35/M. Accused also pointed out one Maruti alto car having registration No. HR10J 3159. The said car was used by the accused persons for coming to the place of occurrence. Ram Charan also joined the investigation and produced the keys of the car. The said car with key was seized vide memo Ex.PW35/N. He prepared the site plan of the place of recovery of car which is Ex.PW35/O. He recorded the statements of witnesses. He also got prepared the scaled site plan through Ct. Naveen. State Vs. Chhota Salman etc.. SC No.149/17 :: 49 ::
95. Accused Sunil @ Lala also pointed out the scene of crime vide memo Ex.PW35/P. He collected the viscera analysis report which is Ex.PW35/K. He also collected the FSL result Ex.PW35/R, 35/S and 35/T. He identified the accused persons and also the case property.
96. During cross-examination he stated that Accused Chhota Salman was using mobile phone No. 7053025701 and Sunil Kumar was using mobile phone No. 8377072632. Accused Raman was using mobile phone No.7551156462 and accused Salman Khan was using the mobile No. 9560493470. On 21.11.2016 Chhota Salman made a call on the mobile phone of Salman Kkhan and all accused were in touch with each other on the mobile phone. Immediately, before the incident also Chhota Salman talked with Raman and Salman as per call detail record. Immediately, after the incident Sunil Kumar called on the mobile phone of Salman Khan.
97. During cross-examination by defence he stated that he reached BSA hospital at about 11:30 am. Pankaj Gupta was found admitted in the hospital but was not fit for making statement. He had not shown the CCTV footage collected by him to Pankaj Gupta. He admitted that place of incident is not visible in the CCTV footage collected by him, but the accused persons are visible in the CCTV footage while going State Vs. Chhota Salman etc.. SC No.149/17 :: 50 ::
towards the place of incident and coming back. He made inquiries from the persons sleeping by the side of the road but did not record their statements. He recorded the statement of Pankaj Gupta on 23.11.2016 at about 5:00 pm in BSA hospital. He inquired from Pankaj Gupta as to where he had gone from the hospital and he told that he was not attended in the hospital for long time i.e. why he came out of the hospital and was just sitting outside the hospital. He did not check the CCTV footage of BSA hospital in order to check the factum of presence of Pankaj sitting out side BSA hospital. He denied the suggestion that statement of Pankaj Gupta was manipulated and fabricated by him.
98. He along with other staff left the police station at 2:20 pm on 28.11.2016. At about 5:00 pm they received secret information. No DD entry regarding secret information was recorded and he also did not inform the police station about the secret information. After arrest he requested public person Sarfraj to join investigation. Before arrest he did not request any public person to join. No notice was served on the public persons who refused to join. He admitted that mobile phone number 7053025701 is not issued in the name of Chhota Salman. He did not mention the chasis and engine number of the vehicle in the seizure memo Ex.PW35/N. He denied the suggestion that he had not conducted the fare State Vs. Chhota Salman etc.. SC No.149/17 :: 51 ::
and proper investigation. He denied the suggestion that Chhota Salman was not arrested from the place and the manner as deposed by him. He denied the suggestion that signature of Chhota Salman were forcibly obtained on various blank and printed papers or that Chhota Salman did not make any disclosure. He denied the suggestion that Chhota Salman was already shown to the witness Pankaj during police custody or due to that reason he was able to identify accused Chhota Salman in TIP. He denied the suggestion that mobile phone Number 7053025701 was not used by Chhota Salman.
99. During cross-examination for accused Raman he stated that on 22.11.2016 he visited the scene of crime at 7 pm. He did not notice any articles such as hammer, chisel, screw driver lying at the scene of crime. He found cooler and other waste material lying outside the shop. He found CCTV Cameras installed at two places. He obtain ed the CCTV footage from Faisal Raza. No CCTV footage of the date of incident was found in the other camera regarding incident. Faisal Raza did not hand over the hard disc. Alto car Ex.PW35/Article-1 is registered in the name of Oriental Insurance Company. Insurance company told him that this car has been purchased by Chain Singh from them. The documents in this regard have not been placed on record. He State Vs. Chhota Salman etc.. SC No.149/17 :: 52 ::
did not record the statement of Chain Singh. The car was also not got mechanically inspected. He admitted that mobile phone number 7551156462 was not issued in the name of Raman. He stated that this phone was used by Raman. He is not certain if the clothes seized by him is the same as seen in the CCTV footage. He stated that the colour of clothes is not clearly visible in the CCTV footage. He denied the suggestion that accused was shown to the witness Pankaj Gupta in the police custody or due to that reason he was able to identify the accused in the TIP. It is wrong to suggest that accused was not kept muffled face.
100. During cross-examination for accused Sunil @ Lala he stated that in the CCTV footage Sunil @ Lala was not visible. No judicial TIP of accused Sunil was got conducted. He also did not obtain the police custody remand of Sunil. He did not keep Sunil in muffled face. No weapon of offence was recovered from Sunil. He denied the suggestion that he has not properly conducted the investigation. He denied the suggestion that accused was shown to the witness namely Pankaj during police custody remand and i.e. why he was able to identify the accused in the court.
101. During cross-examination for accused Salman Khan. He denied the suggestion that accused Salman khan has been falsely implicated or that he did not make any State Vs. Chhota Salman etc.. SC No.149/17 :: 53 ::
disclosure statement.
102. Thereafter, the prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence and stated that they have been falsely implicated. Accused Sunil wished to lead evidence in defence. Thereafter, the case was fixed for defence evidence.
103. Ms. Kiran, Deputy Supdt. Jail No.5 was examined as DW-1. He brought the summoned record of accused Sunil S/o Sh. Dana Ram which is proved as Ex.DW1/A. She deposed that all the adolescent under trial were shifted from Jail No.7 to Jail No.5 on 12.01.2017 along with staff. On 03.12.2016 there was no other accused lodged in the jail by the name of Sunil S/o Sh. Dana Ram except there was only one accused lodged in the jail i.e. Sunil S/o Sh. Dana Ram. The testimony of this witness has gone unchallenged and uncontroverted by the prosecution. Thereafter, the defence evidence was closed and the case was fixed for final arguments.
104. I have heard. Ld. APP for the State. Ld. Defence counsel for the accused persons and perused the record.
105. Ld. APP submitted that the present case is based upon the eye witness account who is also the injured i.e. Pankaj Gupta PW-7. He has fully supported the prosecution State Vs. Chhota Salman etc.. SC No.149/17 :: 54 ::
case that all the accused persons came there and assaulted them. He deposed that three persons came to the shop where he was sleeping and gave beatings to Ashish. When he heard the cries he woke up and objected. Those three persons attacked him also. They were armed, one boy was carrying knife and second boy was carrying screw driver and third boy was also having some weapon which he is not able to recollect. Those boys gave knife blow on his back i.e. hip and the other boy gave blows with screw driver on his chest and stomach. The public persons gathered and those boys fled away from the spot. Ld. APP submitted that there were two injured as is also evident from the facts of the case as there was another injured Ashish who had died and Pankaj Gupta sustained injury whose MLC has been proved on record as Ex.PW6/A. The fact that there were two injured is also evident from the testimony of PW-11 who was Incharge of the PCR van Libra-71 i.e. ASI Jagbir. ASI Jagbir when appeared in the witness box as PW-11, he deposed that he removed Ashish to BSA hospital. He also found that at that time someone was lying under the quilt just near the injured, while he was removing injured to the hospital. Ashish also told him that 3-4 unknown male persons gave him beatings and stabbed him and that there is another injured also on the spot. The fact that there was another injured is also evident State Vs. Chhota Salman etc.. SC No.149/17 :: 55 ::
from the testimony of Ct. Bhagirath PW-10 who was Incharge PCR Van Libra-77. Who removed Pankaj to the hospital. The MLC Ex.PW6/A of Pankaj also shows that he was removed to the hospital by Ct. Bhagirath. Ld. APP submitted that the contention of defence is that there was a quarrel between Ashish and Pankaj in which friends of Pankaj and Pankaj caused injuries on the person of Ashish but this is not supported by the witnesses. Even Ashish in his dying declaration to ASI Jagbir did not tell that it was Pankaj and his friends who caused injuries to him but he stated that 3-4 unknown male persons gave him beatings and stabbed him.
Ld. APP submitted that this fact itself falsifies the stand taken by the defence that it was Pankaj and his friends who caused injuries to Ashish. Ld. APP submitted that Pankaj is an injured in this case and therefore, his testimony carries much weight and cannot be simply brushed aside. He has identified the three accused that is Chhota Salman, Raman and Sunil but is not able to identify Salman S/o Sh. Isriel Khan. Ld. APP submitted that infact Salman was in the car which was used in the commission of offence and it was his car which was also seized lateron and is part of the larger conspiracy which is evident from the testimony of Javed.
Javed has been examined as PW-13. He stated that earlier he was collecting the waste material from the apartments.
State Vs. Chhota Salman etc.. SC No.149/17 :: 56 :: Earlier Salman Khan was collecting the waste material from the apartments. Later on that contract was given to Javed and his brother. This fact is also corroborated by Sh. S.P. Aggarwal PW-5 who was the advisor to the welfare association of that apartment and due to that reason the relation between Javed and Salman Khan were strained. It was Javed who used to sleep outside the shop and in order to eliminate Javad the attack was made but on that date unfortunately it was Ashish who was sleeping there and not Javed as Javed had to go to NDPL to attend the call and Ashish slept there as he was feeling tired. Ld. APP submitted that this testimony of Javed and S.P. Aggarwal also proved the motive behind the commission of offence.
106. Ld. APP submitted that even Chhota Salman and Raman were identified in the TIP conducted by the witness and thereafter, he had also identified them in the court. Sunil has also been identified by the witness in the court. Ld. APP submitted that under the circumstances as the witness has identified them in the court, there is also motive and it was in view of that motive that all the accused persons including the Juvenile committed the offence and attacked them. The onus which was on the prosecution has been discharged. There is also nothing on record that Pankaj Gupta has any reason to depose falsely against them. The witness is reliable. So far State Vs. Chhota Salman etc.. SC No.149/17 :: 57 ::
as the video recording in the mobile phone is concerned. The witness stated that he was threatened and though he has used these words but these words are not his words he was forced to say these words. Ld. APP submitted that under the circumstances no importance can be given to that recording. Ld. APP submitted that keeping in view the testimony of PW- 7, the other facts and the testimony of the other witnesses including S.P. Aggarwal PW-5 and Javed PW-13 supported by the testimony of Laxshit Gaur that he made the telephone call at 100 number and the PCR removed and the testimony of Ct. Bhagirath PW-10 and ASI Jagbir PW-11 to whom Ashish also gave the dying declaration, the accused be held guilty and convicted.
107. Ld. Defence Counsels submitted that the present case is based upon the false facts. Infact from the testimony of PW-3 which is the starting point and who also made the call at 100 number it is clear that there was only one injured lying at the spot which itself contradicts the testimony of PW-7 that he was also present at the spot when the first PCR van took the deceased and the another PCR took him to the hospital. Because if he would have been already there at the spot when the first injured was removed he would have also been removed to the hospital along with the deceased. This fact creates doubt about the testimony of PW-7 Pankaj Gupta. State Vs. Chhota Salman etc.. SC No.149/17 :: 58 ::
108. Ld. Counsel further submitted that infact on the date of alleged incident PW-7 was taking liquor with his three friends at the shop of PW-13 Javed. The deceased objected to that. The PW-7 forcibly made him to drink liquor upon which a scuffle has taken place between PW-7 and his friends and the deceased. In that scuffle both sustained injuries. PW-7 along with his three friends caused injuries to Ashish. Thereafter, PW-7 and his friends ran away from the spot. Which is also visible in the CCTV footage in the camera installed outside the house of Faisel Raza PW-29 which was seized by the police in which three persons are seen going towards the scene of crime and then running away.
109. PW-7 himself has admitted that Ashish and Javed were not happy due to his habit of drinking and they also used to scold him. The fact that Ashish was also given liquor is evident from the testimony of the doctor who examined the patient i.e. the deceased i.e. Dr. Satyaranjan Panda PW-25 who stated that there was smell of alcohol in the breath of the deceased. Ld. Counsel submitted that this itself clarifies that how the incident has taken place.
110. Ld. Counsel submitted that in this case there is also doubt about the truthfulness of the story of PW-7. During the cross-examination of PW-7 one mobile phone Ex.PW7/Article-X was played having the video shot where State Vs. Chhota Salman etc.. SC No.149/17 :: 59 ::
PW-7 was visible and was willingly saying that aforesaid accused persons including the present applicant had nothing to do with the commission of offence and they were not the same persons who actually committed the murder of deceased and further more he explained that how the present applicant was shown in the police station before the TIP proceedings and that he was forced to identify the accused persons including the present applicant, accused during their TIP proceedings dt.03.12.2016 and 07.12.2016. the mobile phone was also sent to FSL Rohini and as per the report of Dr. V. Laxmi Narsimha, Asstt. Director there was no indication of any form of alteration in the said video shot.
111. Ld. Counsel submitted that the golden rule 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 innocence the view favourable to the accused shall be followed. Ld. Counsel in support of his arguments relied upon the Judgment cited as Sukliya v. State of M.P, 2010(15) SCC 745, wherein it was held that:
"The golden thread which runs through the web of administration of justice in criminal case 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 innocent, the view which is favourable to the accused should be adopted".
112. PW-7 has also admitted his voice in the said mobile State Vs. Chhota Salman etc.. SC No.149/17 :: 60 ::
phone and that he is deposing voluntarily. Ld. Counsel submitted that the witness has also stated that he could see the faces of only the two assailants and see the back of the third assailant only. One of the assailant was also wearing monkey cap at the time of alleged incident. From this also it is clear that he is deposing falsely. Even otherwise Pankaj fled away from the hospital and he again reached the hospital in the morning. Why he has left the hospital is not clear. He stated that he was frightened and again slept in front of the shop of Javed. Infact when he saw the police officials in the hospital he was frightened which he himself says and therefore left the hospital in order to conceal the crime. Otherwise there is no plausible explanation given by him for leaving the hospital without any reason. Ld. Counsel relied upon the Judgment cited as Alil Mollah Vs. State of W.B., 1996(5) SCC 368 wherein it was held that:
"7. On his own showing PW-3 was an employee of the deceased. He was present, according to his testimony, when the deceased was assaulted by the appellants. He admits that after committing the crime the appellants and their associates fled away. The witness, however, not only did not raise any alarm when his master was being assaulted, he did not go near his employer even after the assailants had fled away to see the condition in which the employer was after having suffered the assault. According to him he got frightened and fled away to him home. He also admitted in his cross-examination that neither at his home nor in the village did he disclose what he had seen in the evening of 4th February, 1982 to any one. Though in the morning of the following day, the witness went to the brick fields of the deceased-employer State Vs. Chhota Salman etc.. SC No.149/17 :: 61 ::
and many of his co-employees were also present there, he admitted that he did not disclose the occurrence to anyone of them and went on to concede that even to the Manager of the brick- fields he gave the information about the occurrence only 2-3 days after the occurrence. His statement was recorded by the police on the next day in the afternoon. This conduct of the witness that he did not tell anyone about the occurrence till the next day appears to be rather unnatural and creates an impression that he had not witnessed the occurrence. The witness, however, tried to take shelter on the plea that he was "frightened" and, therefore, till he appeared before the Police, he did not pick up courage to inform anyone either in the village or on the brick- fields regarding the occurrence. This plea does not impress us. From the statement of the Investigating Officer, PW-12, we find that after having visited the scene of occurrence, he went to the village where the witness resides, on the right of 4th February, 1982 and remained there till 5th February, 1982. It is not understandable why the witness who was in the village did not appear before the Investigating Officer, when he was camping in the village throughout the night or even the next morning. No explanation whatsoever has been offered by him. PW-3, in view of his unexplained silence, delayed statement to the Police and relationship with the deceased, therefore, does not appear to us to be a wholly reliable witness. There is no corroboration of his evidence from any other independent corroboration of his evidence from any other independent source either. In the absence of any corroboration of his testimony we find it rather unsafe to rely upon the evidence of PW-3 only to uphold the conviction and sentence of the appellants. Indeed both the Courts below have relied upon the statement of PW-3 and found him to be a reliable witness but unfortunately neither the trial Court nor the High Court have adverted to the admissions made by the witness in his cross-examination, which we have noticed above. Though this Court sitting in appeal by special leave does not normally re-appreciate the evidence, which has been appreciated by two Courts below unless there are compelling reason but with a view to satisfy our judicial conscience we have examined the statement of PW-3 critically and are of the opinion that the appreciation of his evidence by both the Courts below was not proper as admissions made by him in his cross-examination which materially detracted from his reliability were not at all State Vs. Chhota Salman etc.. SC No.149/17 :: 62 ::
noticed by the Courts below thereby resulting in miscarriage of justice. To perpetuate an error is no virtue but to rectify it is a compulsion of judicial conscience. We find ourselves unable to agree with the findings recorded by the Courts below with regard to the reliability of PW-3. There is no corroboration of his evidence to connect the appellants with the crime. In our considered view, on the basis of critical analysis of the evidence on the record, we are of the opinion that the case against the appellants has not been proved beyond a reasonable doubt. Consequently, this appeal succeeds and is allowed. The conviction and sentence of the appellants is hereby set aside. The appellants are on bail. Their bail bonds shall stand discharged".
113. He did not tell the name of the assailants or description of the assailants to the doctors. There is no explanation why he did not remain in the hospital. So far as CCTV footage is concerned there was one more CCTV camera installed at the automobile mechanic shop of Amit situated in front of the scene of crime but the same has not been seized. The fact that there was CCTV Camera is also deposed by PW-34. That CCTV footage was not seized with malafide intention as that would have brought the truth of the present case on record and proved the innocence of the accused persons. He also stated that no eye witness was found either at the spot or in the hospital which also falsifies the presence and stand taken by PW-7. Ld. Counsel in support of arguments relied upon the judgment cited as Abhey Singh Vs. State, 2016(230) DLT 206, wherein it was held that:
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32. "As noted above this eye witness claims to have fled in fear and returned when he learnt that the police had reached the spot and the presence of the police gave him courage.
33. The aspect of availability of the eye-witness shortly after/upon the arrival of the police is shrouded in suspicion. Testimony of SI Udaivir Singh clearly establishes that in pursuance of D.D. No. 16A he was the first to reach the spot along with Ct. Uday Chander and he found no eye witness including Ram Babu Shah. According to the said witness, Ram Babu Shah surfaced for the first time at around 11:40 PM along with SI Niranjan Singh. The said version strikes a discordant note with the stand adopted by other prosecution witnesses who claim that Ram Babu Shah was found present at the spot with SI Udaivir Singh and thereafter accompanied SI Niranjan Singh to Jai Prakash Narayan Hospital. The said contradiction casts death knell to the claim of the prosecution that is found to be self-riddle".
114. Ld. Counsel submitted that according to PW-35 when he made inquries from PW-7. He told that as he was not attended therefore, he came out of the hospital and remained there but this fact is contradicted by PW-7 himself who stated that he has left the hospital and again went to sleep in front of the shop of Javed. From this it is clear that there is unexplained delay in recording the statement of PW-7 and hence no reliance on the same can be placed. Ld. Counsel relied upon the Judgment cited as State of U.P. Vs. Mundrika and others, 2001(9) SCC 346 wherein it was held that :
"This unexplained gross delay in the recording of the statement of a material eye witness throws a serious doubt as to whether he was really an eye witness or not. The manner in which the deceased was assaulted and died was narrated by Shiv Dass State Vs. Chhota Salman etc.. SC No.149/17 :: 64 ::
in a way which was materially at divergence with the narration of the incident given by Smt. Kabutra. There were material contradictions between his court statement and the statement recorded by the investigating officer under Section 161 Criminal Procedure Code In the opinion of the High Court it was "extremely doubtful, if not impossible, to hold that he was an eye-witness". From the testimony of Bhullar Prasad, P.W.6, a third version of the incident was spelt out. He was one of the police personnel attached with the police station and it appeared that he was giving a cautious statement so as to save himself. On a critical appreciation of the testimony available on record, the High Court held
- "the conclusion is irresistible that the truth has been attempted to be obliterated in such a manner so as to screen the real offender or create doubt about the persons put in the dock as accused and, therefore, challan of the accused was an eye wash for the general public".
115. And Maruti Rama Naik Vs. State of Maharashtra, (2003) 10 SCC 670 wherein it was held that:
7. "From the evidence of PW-3, it is seen that at the time of the incident, he was travelling on a scooter along with one Narayan Ganu Naik when he saw these accused persons including the appellants attacking the deceased Krishna Mahada Naik. He then states that having seen the incident and apprehending danger to his life, he turned his scooter and went to village Koli where he took refuge in the house of Suresh Kana Naik.
In his further evidence he states that the accused persons including the 1st appellants came to the said house, dragged him out and assaulted him causing injuries to him. But what is important to be noticed is that he did not state before the Police when his statement was recorded a day later that these two appellants had attacked deceased Krishna Mahada Naik for which omission we find no explanation whatsoever. Though this witness. PW-3, is an injured witness, we find it difficult to place reliance on his evidence not only because of the omissions mentioned hereinabove but also because of the fact that his statement was recorded a day later when the investigating officer had ample opportunity to record the said statement on the day of the incident itself. The explanation given in regard to this unwarranted delay is that this witness was injured, and had to be taken to Bombay and brought back to Panvel for treatment. Taking into account the nature of State Vs. Chhota Salman etc.. SC No.149/17 :: 65 ::
injuries suffered by this witness and the opportunity investigating officer had to record his statement, we think this explanation given by the prosecution is not convincing. Bearing in mind the fact that even according to this witness, large number of people attacked the deceased and his omission to state the names of these appellants as the assailants in his previous statement, we think it not safe to place reliance on the evidence of PW-3 to find the appellants guilty of the offences charged without there being any material corroboration from other independent acceptable source. That is even applying the test laid down by this Court in the case of Masalti Etc. v. State of U. P. (AIR 1965 SC 202) which was followed by the High Court in its judgment".
116. Ld. Counsel submitted that so far as TIP is concerned. In view of the mobile phone Ex.PW7/Article-X and the video shot, it is clear that he was not able to identify the culprits, SHO threatened him and asked him to identify all the accused persons including Chhota Salman he was shown the mobile phone to identify the accused persons and accused persons were also shown to him and told that "Chhota Salman hai isko pehchanna hai". There is no motive proved on record, there is no previous enmity and as motive is important for committing and establishing any offence. Therefore, prosecution was required to prove and establish the motive which the prosecution has failed. The benefit of the same must be given to the accused persons.
117. Ld. Counsel relied upon the judgment cited as Surender Pal Jain Vs. Delhi Administrator, 1999 (Suppl3) SCC 681 as under:
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"In a case of murder, motive assumes significance; it's absence puts the court on it's guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof."
118. Ld. Counsel submitted that so far as Sunil @ Dana is concerned he was there in the TIP of Chhota Salman but the witness has not identified him in that TIP which creates doubt. Even otherwise there is no role assigned to Sunil in the case though he stated that Raman used knife in causing injury to him and to Ashish. There is nothing in the testimony as to what weapons Sunil was carrying. Sunil was also present in the Test Identification Parade but was not identified. Even otherwise according to PW-35 Sunil is not visible in the CCTV footage collected by the police and that is why his TIP application was not moved. Ld. Counsel submitted that according to the case of prosecution it was Kali, Chhota Salman and Raman who went there and caused injuries and not Sunil @ Lala and hence, the statement of Pankaj is also not in accordance with the prosecution case. Prosecution cannot be permitted to create a new story for proving and holding the accused guilty. Ld. Counsel submitted that under the circumstances the benefit be given to the accused. Ld. Counsel has relied upon the Judgment cited as Hare Krishna Singh & others Vs. State of Bihar AIR 1988 Supreme Court 863 wherein it was held that:
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"25. So far as Paras Singh of Birampur. the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing. Indeed, Mr. Rajendra Singh, the learned Counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence.
26. In the FIR, his name has not been mentioned. It has only been stated, "Jagdish Singh's nephew who is in military job of Birampur". Jagdish Singh may have more than one nephew. The I.O. (P.W. 9) in his evidence has stated that before the arrest of Paras Singh of Birampur. he did not know his name and he cannot say how many nephews Jagdish Singh has. The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service. The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service. Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singh's nephew as given in the FIR. The most significant fact is that P.W. 3 failed to identify the appellant in the T. I. Parade. P. W. 8 did not attend the T. I. Parade. His case is that he was not called to attend the T. I. Parade. On the other hand, it is the defence case that P.W. 8 was called but he did not attend the T. I. Parade. Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by P.W. 8. In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of P.Ws. 3 and 8 made before the police mentioning the name of Paras Singh of Birampur. It is true that P.Ws. 3 and 8 identified Paras Singh of Birampur in Court, but such identification is useless, particularly in the face of the fact that P.W. 3 had failed to identify him in the T. I. Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustained."
119. After hearing the arguments and going through the record I found that prosecution in this case came to know State Vs. Chhota Salman etc.. SC No.149/17 :: 68 ::
about the incident from the call made by Lakshit Gaur/PW-3. On this call ASI Jagbir PW-11 the Incharge of PCR van L-71 received the information at about 11.30 PM and reached the spot i.e. near Titiksha School, house no.G-2/34, Sector-11, Rohini. He found one injured Ashish son of Rohtash on the spot and removed him to hospital. The testimony of this witness is important for the reason that Ashish (the deceased) on the way to the hospital informed PW-11 that 3- 4 unknown male persons gave beatings to him and also stabbed him. This fact demolishes the defence taken by the accused persons that the quarrel took place between Aashish and Pankaj Gupta on the issue of forcing Aashish to take liquor in which Pankaj Gupta and his associates caused injury on the person of Aashish. If that would have been the situation then Ashish, atleast would have told the name of Pankaj Gupta to ASI Jagbir as the assailant and not that 3-4 unknown male persons gave beatings to him and stabbed him and thereafter ran away.
120. The fact that Ashish was conscious and speaking is also evident from the testimony of PW-25 Dr. Satya Ranjan Panda, who stated that the patient himself told the history i.e. the history of stabbing. According to the doctor, the injured was also conscious but drowsy. Keeping in view this fact, it is clear that deceased Ashish was not assaulted by Pankaj State Vs. Chhota Salman etc.. SC No.149/17 :: 69 ::
Gupta and his associates but some other persons.
121. PW-11 has also stated that Ashish told him that there is one more injured and during cross examination he stated that he saw another person, who was lying nearby under a quilt, who informed that he had also sustained injuries. PW- 11 informed the control room and requested that another PCR be sent as there may be another injured on the spot. Thereafter Ct. Bhagirath, PW-10, who was incharge of PCR van L-77 reached the spot. He found Pankaj in injured condition on the spot and removed him to BSA hospital in his van. This testimony of PW-10 and PW-11 find corroboration from the testimony of PW-7 Pankaj Gupta, the injured, who deposed the firstly Aashish was removed to the hospital. Thereafter another PCR van came and removed him to the hospital. Keeping in view this evidence, in my opinion this contention of the prosecution that Pankaj was not there is also demolished.
122. The fact that there were two persons, who sustained injuries is also evident from the analysis of the exhibits sent to FSL. The FSL report is Ex.PW-22/A. According to the report, DNA of the deceased as well as of Pankaj Gupta were found on the exhibits sent for analysis which clearly shows that there were two injured persons.
123. Pankaj Gupta when appeared in the witness box fully State Vs. Chhota Salman etc.. SC No.149/17 :: 70 ::
supported the prosecution case and also identified the three accused persons namely Chhota Salman, Raman and Sunil Kumar @ Lala, he failed to identify Salman. He also said that one of the assailant was armed with knife and in fact he stated that it was Raman, who inflicted injury on his person and on the person of Ashish with knife. The other accused was armed with a screw driver, who caused injuries on his chest and stomach with the screw driver. The third person was also having some weapon, but he can not identify or describe that weapon. It is also important to note that according to PW-7, he has seen the faces of two assailants but he could not see the face of third assailant. Though the incident had taken place at night but this testimony of PW-7 clearly shows that there was source of light and that is why he was able to see the faces of assailants and recognize them. The test identification prade of Chhota Salman and Raman was conducted. The proceedings are Ex.PX and PY. In the TIP proceedings also PW-7 has correctly identified Raman as well as Chhota Salman. When the witness appeared in the witness box, he identified Raman and Chhota Salman correctly. He also identified Sunil @ Lala.
124. The defence argued that witness has himself admitted during his cross examination that in the video recording in mobile phone Ex.PW-7/Article-X that he identified the State Vs. Chhota Salman etc.. SC No.149/17 :: 71 ::
accused in TIP at the instance of police. The witness also admitted that in the video recording he is visible, the voice is also recognized by the witness as his. The mobile phone was also sent to FSL for analysis and the report is received according to which there is no tempering found in the video recording. Ld. Counsel submitted that keeping in view this evidence it is clear that the witness identified the accused persons in the TIP as the accused persons were shown to him and he was also threatened by the IO to identify them.
125. I found that in this case the testimony of the witness was recorded after about 5-6 months of the incident and the TIP proceedings and therefore, even if there was some impression of the threat of the IO that must have vanished when he appeared in the court and deposed. There is also nothing on record or in cross examination of the witness that before examination in the court also he was threatened. The witness during cross examination also stated that whatever he stated in the video recording was said by him due to threat given to him by the persons who were present there. It is important to note that video recording was done by Abid brother of Chhota Salman and at the house of Raman.
126. Even otherwise as per the law settled by Supreme Court it is the identification in the court which is important and not the fact that whether TIP was conducted or not State Vs. Chhota Salman etc.. SC No.149/17 :: 72 ::
conducted. The reliance can be placed on the judgment cited as Ashok Debbarma @ Achak Debbarma v. State of Tripura, (2014) 4 SCC 747 wherein it was held that:
"16. We have gone through the oral evidence of PW10 and PW13 and, in our view, the trial Court and the High Court have rightly appreciated their evidence and the involvement of the Appellant in the above incident, including the fact that he had fired at various people, which led to the killing of relatives of PW10 and PW13. We are of the view that since the accused persons were known to the witnesses and they were identified by face, the fact that no Test Identification Parade was conducted at the time of investigation, is of no consequence. The primary object of the Test Identification Parade is to enable the witnesses to identify the persons involved in the commission of offence(s) if the offenders are not personally known to the witnesses. The whole object behind the Test Identification Parade is really to find whether or not the suspect is the real offender. In Kanta Prashad v. Delhi Administration, AIR 1958 SC 350, this Court stated that the failure to hold the Test Identification Parade does not make the evidence of identification at the trial inadmissible. However, the weight to be attached to such identification would be for the Court to decide and it is prudent to hold the Test Identification Parade with respect to witnesses, who did not know the accused before the occurrence. Reference may also be made to the judgment of this Court in Harbhajan Singh v. State of Jammu & Kashmir, 1975(4) SCC 480, Jadunath Singh and another v. State of U.P., 1970(3) SCC 518 and George & others v. State of Kerala and another, 1998(2) R.C.R.(Criminal) 199 : 1998(4) SCC 605.
17. Above-mentioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence, would depend on the facts of State Vs. Chhota Salman etc.. SC No.149/17 :: 73 ::
a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. In Malkhansingh v. State of M.P., 2003(3) R.C.R.(Criminal) 550 : 2003(5) SCC 746, this Court clarified that the Test Identification Parade is not a substantive piece of evidence and to hold the Test Identification Parade is not even the rule of law, but a rule of prudence so that the identification of the accused inside the Court room at the trial, can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no Test Identification Parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses. This Court in Dana Yadav alias Dahu (supra) has examined the points on the law at great length and held that the evidence of identification of an accused in Court by a witness is substantive evidence, whereas identification in Test Identification Parade is, though a primary evidence, but not substantive one and the same can be used only to corroborate the identification of the accused by witness in the Court. So far as the present case is concerned, PW10 and PW13 have identified the accused in open Court which is the substantive piece of evidence and such identification by the eye-witnesses has not been shaken or contradicted. The trial Court examined in detail the oral evidence tendered by those witnesses, which was accepted by the High Court and we find no error in the appreciation of the evidence tendered by those witnesses."
127. The identification of the accused persons in TIP carries no weight, if the witness in the court fails to identify the accused. Therefore, in my opinion as there is nothing on record to show that witness PW-7 was threatened before appearing as witness in court or that his identification of the accused persons in the court is due to the threat extended by State Vs. Chhota Salman etc.. SC No.149/17 :: 74 ::
the IO, therefore, the same can be relied. The witness has also specifically stated that he was able to see the faces of two assailants at the time of incident. He has also sustained injuries in the incident wherein Aashish had lost his life. Therefore, the testimony of this witness carries more weight and in my opinion, reliance can be placed on his testimony.
128. So far as accused Salman is concerned, the witness has not identified him. There is also no evidence against him to link him with commission of offence. There is recovery of one vehicle no. HR10J 3159 Ex.PW-35/Article 1 at the instance of accused Salman Khan. Prosecution alleges that it is the same vehicle in which the accused persons reached the spot and it was Salman Khan, who was the owner of the car and driving the same. I found that there is no evidence on record that this vehicle is of Salman Khan, in fact according to the evidence collected the vehicle is owned by one Chan Singh, who purchased it from Insurance Company as deposed by PW-35. There is no evidence on record as to how Salman Khan came in possession of the car. There is also no evidence that this car was used in the commission of offence except the disclosure statement which is not admissible. There is no recovery of any incriminating evidence from the car. Keeping in view all these facts, in my opinion, so far as accused Salman Khan is concerned, State Vs. Chhota Salman etc.. SC No.149/17 :: 75 ::
prosecution has not been able to prove his guilt beyond doubt.
129. So far as accused Sunil @ Lala is concerned, he has been identified by the PW-7 in the court. It is important to note that according to PW-7 there were three assailants, even deceased Ashish told to PW-11 that there were 3-4 assailants but as PW-7 restricted the number of assailants to 3 and in the CCTV footage also, only three persons are visible. Prosecution also came up with the story that only three persons assaulted Aashish & Pankaj According to the testimony of PW-35 and the prosecution case, Sunil @ Lala is not among those three persons. Keeping in view all these facts a new story can not be allowed to be brought on record that among assailants, who assaulted PW-7 and caused death of Aashish, Sunil @ Lala son of Dana Ram was also there. In view of this, in my opinion, PW-7 is not reliable to the extent that Sunil @ Lala was also among the assailants.
130. As it is well settled law that maxim falsus in uno, falsus in omnibus is not applicable in India. Therefore, the entire testimony of PW-7 can not be discarded. Reliance can be placed on the judgment cited as Jakki @ Selvaraj v. State Rep. by the IP, Coimbatore, (2007) 9 SCC 589 wherein the Apex Court has held that:
"8. As noted above, stress was laid by the State Vs. Chhota Salman etc.. SC No.149/17 :: 76 ::
accused-appellants on the non-acceptance of evidence tendered by PW-13 to contend about desirability to throw out the entire prosecution case. In essence the prayer is to apply the principle of "falsus in uno falsus in omnibus"
(false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liars. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC
366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and Anr. v. State of Punjab (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony was to be rejected, because a witness was evidently State Vs. Chhota Salman etc.. SC No.149/17 :: 77 ::
speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors.
v. The State of Punjab. (AIR 1975 SC 1962).
As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts State Vs. Chhota Salman etc.. SC No.149/17 :: 78 ::
have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and Ors. v. State of Bihar etc., 2002(2) RCR(Crl.) 567 (SC) : JT 2002(4) SC 186."
131. The defence has also attacked the testimony of PW-7 on the ground that there is delay in recording his statement which casts shadow of doubt on the truthfulness of the same. I found that in this case the delay has very well been explained by the witnesses. According to PW-7 he was not fit to gave statement as he was in pain. Doctor also stated that he was not fit to give statement and the witness PW-22 stated that witness PW-7 was under the influence of liquor and was not able to give statement, therefore, I found that the delay in recording the testimony of this witness has very well been explained and hence in my opinion on this count, the testimony of PW-7 can not be discarded.
132. The defence has also claimed that there is no motive brought on record to commit the offence. There was no enmity between the accused persons and the injured and the decease and hence there is no reason for them to commit the offence. I found that in this regard the testimony of Javed, PW-13 and of Sh. S.P Aggarwal,PW-5 is very important. According to PW-5 earlier Isriel Khan @ Ashok was having right to collect the waste from SFS flats, Golden Jublee State Vs. Chhota Salman etc.. SC No.149/17 :: 79 ::
Apartment. Isriel is the maternal uncle of Javed and Salman Khan is his son. They were doing this work but later on in 2015 contract was given to Rashid Malik @ Rahul brother of Javed and since then Javed and Rashid Malik were collecting the waste from that society due to which the relations of Salman and Javed were strained. In fact they wanted to take revenge from Javed but unfortunately on that day it was Ashish, who was sleeping there instead of Javed. It has come in the testimony of PW-7 that on that day Ashish was tired, therefore, Javed took the vehicle to the office of NDPL in place of Ashish and the accused persons assaulted the person sleeping there believing him to be Javed. Keeping in view this testimony of PW-5, PW-13 and PW-7, I found that prosecution has been able to prove the motive on record but failed to establish the guilt of accused Salman as well as Sunil Kumar @ Lala.
133. So far as the issue of criminal conspiracy is concerned, no doubt there can not be any direct evidence about hatching of criminal conspiracy but there has to be some evidence on record to draw an inference that there was some criminal conspiracy hatched. The prosecution intended to show on the basis of call detail record and the location that some conspiracy was hatched. The witnesses Rinkle Gupta and Govind have not supported the prosecution case that the State Vs. Chhota Salman etc.. SC No.149/17 :: 80 ::
mobile phone were used by the accused persons. Even otherwise there is nothing on record to show that what talks they had with each other. In the absence of the same it can not be said that they hatched the conspiracy to commit the offence while talking with each other. Keeping in view all these facts, it is clear that the onus which was on the prosecution to prove the conspiracy has not been discharged.
134. So far as accused Chhota Salman and Raman are concerned, the testimony of PW-7 is clear that they assaulted Ashish as well as him. He also deposed that it was Raman, who caused injury with the knife. There is nothing on record to discredit PW-7. There is no evidence to show that PW-7 has any reason to depose falsely against the accused persons. Keeping in view the testimony of PW-7 corroborated by the scientific evidence and the other witnesses, accused Chhota Salman and Raman are acquitted under Sec.120B but as both of them had caused death of Aashish and also assaulted Pankaj including injury on his vital parts and also stab injury, I convict them for the offence punishable under Sec.302 and 307 read with sec.34 of IPC. Accused Salman Khan and Sunil @ Lala are acquitted from all the charges. They be released on bail under Sec.437 A Cr.PC on furnishing personal bond in the State Vs. Chhota Salman etc.. SC No.149/17 :: 81 ::
sum of Rs.40,000/- with one surety in the like amount.
135. Let convicts Chhota Salman and Raman be heard on the quantum of sentence on 30.01.2018.
Announced in the open court today on 22.01.2018 (VIRENDER KUMAR BANSAL) ASJ/Pilot Court/North District Rohini Courts/New Delhi.
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