Delhi District Court
State vs . Akil @ Itawa Etc on 5 December, 2019
IN THE COURT OF SHRI RAMESH KUMAR: ADDL SESSIONS JUDGE:
CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
S.C. No.66/15 (CIS NO. 27523/2016)
FIR No.293/15
P.S. Kamla Market
U/S. 302/34 of IPC
State Vs. Akil @ Itawa etc
State
Versus
1. Akil @ Itawa
S/o Mohd Sakeel
R/o Vegabond, Delhi.
Permanent address-Vill Begampur
Kanpur, UP.
2. Raju Bangali .......( Proceedings abated against him on 26.03.2018)
S/o Mohd Tahir
R/o Vegabond Delhi
Also at Vill Tarapur, Majumdar Bazar,
P.S. Sadar, Distt Silcher, Assam.
3. Ranjeet Kumar
S/o Dhan Bahadur
R/o 8020, Gali No.9,
Mltani Dhanda, Paharganj
Delhi.
Permanent Add Vill Mehrwa Gulla,
Teh. Akbar Pur, P.S. Ambedkar Nagar, UP.
4. Raju @ Std @ Liyakat Ali,
S/o Sattar Hussain
R/o Vegabond Delhi
Permanent Add-Vill Hasssanpur,
Sec-1, Phoolwar Sarai, Patna
Bihar.
SC No.66/15 State Vs Akil@Itawa etc Pages 1/30
Date of filing of Charge-sheet : 01.10.2015
Date of Committal : 08.10.2015
Date of arguments : 05.12.2019
Date of Decision: : 05.12.2019
JUDGMENT
1. Formal indictment against the accused persons, namely, Akil @ Itawa, son of Mohd Shakeel, 2) Raju Bengali s/o Mohd Tahir, 3) Ranjeet Kumar S/o Dhan Bahadur and 4) Raju STD @ Liyaqat Ali S/o Sattar Hussain, is that, on or before 04.07.2015, at about 11.30 pm, NE-2, near Parcel office, Thomson Road, Vacant place of Delhi Metro, Kamla Market, Delhi within the jurisdiction of PS Kamla Market, all the accused perons, in furtherance of their common intention, alongwith two associates, namely, Sirfata, and Sonu Bareilywala, (since not arrested) committed murder of Sh Sunil @ Chikna and thereby, they all committed offence punishable U/s 302/34 of IPC.
2. The brief facts of the case are that, a DD NO.40A and DD no.2A, dated 05.07.15, were marked to SI Mangesh, which were regarding stabbing of one person, near Minto road Chambery. The said person died, in the hospital and statement of eye witness, Smt Babli was recorded in the hospital, and the case was got registered. The spot was got inspected by the Crime team and were also got photographed. The exhibits were lifted from the spot. Thereafter, accused persons were arrested, and they made their disclosure statement, and they also pointed out, the place of occurrence. After the medical examination of accused persons, they were produced before the court and their PC Remand, was taken and, later on, they were sent to JC. After completion of the investigation, charge-sheet was filed, before the Court.
SC No.66/15 State Vs Akil@Itawa etc Pages 2/30
3. After hearing the arguments, on the point of charge, all the accused persons were charged, for the offences punishable U/s 302/34 of IPC, to which they pleaded not guilty, and claimed trial. Thereafter, case was fixed for prosecution evidence. During the trial, accused Raju @ Bengali died, hence, proceedings against him was abated, vide order, dated 26.03.2018.
4. The prosecution, in order to prove its case, has examined, 12 witnesses i.e. PW1 HC Bhambu Ram, PW2 Sh Lalit Kamath, PW3 Dr Lalit Tanwar, PW4 Ms Babli, PW5 Dr Arun Kumar, PW6 Ct Sudhir, PW7 Inspector Rupesh Khatri, PW8 Sh Shaym Singh, PW9 Ms Manisha Upadhyaya, PW10 SI Ramesh Chand, PW11 Inspector Lalita Rawat and PW12 ASI Ajab Singh.
5. After the completion of prosecution evidence, statement of accused persons, were recorded, wherein, they all, have denied all the evidence put to them, and have pleaded their innocence. All the accused persons opted for, defence evidence, but did not lead any evidence, in their defence. Thereafter, matter was fixed for arguments.
7. In the prosecution evidence, prosecution has examined, PW1, HC Bhambu Ram, who deposed that, on 05.07.2015, he was posted as Duty officer, at PS Kamla Market and on that day, his duty hours were from 1.00 am to 9.00 am. On that day, at about 2.35 pm, Ct Ravinder handed over to him rukka, sent by Lalita Rawat, and, on the basis of that rukka, he recorded FIR No. Ex.PW1/A, with the help of computer operator. After registration of the FIR, he handed over the computerized copy of the FIR, and original rukka to Ct Ravinder for further transmission to Inspector Lalita Rawat. He also made endorsement on rukka Ex.PW1/B, bearing his signature at point A. PW1 also proved the certificate U/s SC No.66/15 State Vs Akil@Itawa etc Pages 3/30 65B of the Indian Evidence Act, as Ex.PW1/C. This witness was not cross- examined by Ld defence counsel, in any manner.
8. PW2, Sh Lalit Kamath, deposed that, on 07.07.2015, he had received a call regarding death of Sunil Kumar, and they were called for identification, of his dead body at Delhi. He accordingly, reached Delhi on 08.08.2015, alongwith his father, Sh Upender Kamath and identified the dead body, of his brother, namely, Sunil, at Mortuary, MAMC, vide his statement Ex.PW2/A, bearing his signature at point A. After the postmortem, dead body was received by them, vide receipt Ex.PW2/B, bearing his signature at point A and also bearing his thumb impression at point B. His father expired on 01.08.2015, and he produced the copy of death certificate of the same, and proved the same as Ex.PW2/D. He identified the thumb impression of his father on the identification of statement, Ex.PW2/C at point A. This witness was also not cross-examined by the Ld defence counsel, in any manner.
9. PW3, Dr Lalit Tanwar, deposed that, on 05.07.2015, he was posted as CMO at LNJP hospital, Delhi and, on that day, at about 12.54 am, one unknown injured was brought, in the hospital with alleged history, of stab injury at Minto Road, near bus stop, at around 12.16 am, as told by PCR official accompanying the injured. The Jr. Resident Dr Faizal examined the said patient, under his supervision vide MLC Ex.PW3/A, bearing his signature at point A. The patient was brought unconscious. He declared the said patient dead, vide his note, at point X, bearing his signature at point A1. His BP and pulse, were non- recordable. There was no sign of respiration. No heart sound was present. His pupil were bilaterally dilated fixed and non-reacting to light. His ECG was showing flat line. No cardiac activity was there. All the injuries found on the person of said patient, was also mentioned in the MLC. The body was sent to the Mortuary to SC No.66/15 State Vs Akil@Itawa etc Pages 4/30 rule out cause of death. This witness was also not cross-examined, by Ld defence counsel, in any manner.
10. PW-4, Ms Babli, is the eye witness. She deposed that she used to clean train, which comes at platform no.1 and she used to reside at the New Delhi Railway station. She deserted her previous husband, Ravi and came Delhi. On 04.07.2015, she alongwith Sunil (since deceased) was sleeping outside the railway station towards platform no.16. In the night, Sunil left her, and fled away from there. Lateron, she had come to know from one driver, of the auto-rickshaw, that someone, murdered Sunil and his dead body was in LNJP hospital. This witness did not support the case of the prosecution, so she was declared hostile and was cross-examined by Ld Addl PP at length. In the cross-examination, she had stated that she had come to Delhi, from village Asawati, after deserting her husband, Ravi, and, started residing with her mausi, Savitri, and started selling tea, at platform no.1. She further deposed that, during that time, she became friend of Sunil and started living with him, as husband and wife. She denied the suggestion that police recorded her statement. Again, she stated that her statement is Ex.PW4/A. She admitted her thumb impression on Ex.PW4/A and stated that police obtained her thumb impression, at New Delhi Railway station, near one Paan shop. She further denied the suggestion that police obtained her thumb impression on her statement made by her. She further stated that she could not say whether Sunil @ Chikna, (since deceased), had been lodged in jail several times. She did not know that there was some rivalry between Sunil @ Chikna and other pick-pocketer, namely, Raju @ Bengali, Ranjeet, Akil @ Itawa and his associates. She could not say, if Sunil @ Chikna was doing pick-pocketing at New Delhi Railway station. She could not say, if Sunil @ Chikna started pick pocketing, at Anand Vihar railway station, due to rivalry, between Raju Bengali and his associates. She further admitted that, on the day of the incident, she was SC No.66/15 State Vs Akil@Itawa etc Pages 5/30 sleeping on a cemented shop (chabutra) at Thomson Road, near North-East Parcel Office. She denied the suggestion that, at around 11.00 pm, on 04.07.2015, while she was talking with Sunil @ Chikna, at the aforesaid place, at around 11.30 pm, accused Raju Bengali, Akil @ Itawa, Ranjeet Kumar and Raju STD, alongwith their associates, Sonu Bareiliwala and Sirkata, suddenly came there and started abusing Sunil @ Chikna. She further denied the suggestion that accused Akil @ Itawa said that "aaj sahi hath laga hai iska kaam tamam kar do". She also denied the suggestion that, when she asked them about the reason of the quarrel, then, accused persons and their associates started abusing her and instructed her to keep mum, otherwise, they would kill her. She denied the suggestion that accused Ranjeet was having danda and attacked with the said danda on the legs of Sunil @ Chikna and, due to that, Sunil @ Chikna, started crying or that accused persons and their associates caught hold of accused Sunil @ Chikna, then, started giving kick and fist blows and that accused Sonu was having knife and he caused several injuries on the thigh of Sunil @ Chikna and that she started raising alarm ' bachao bachao', thereafter, the accused persons and their associates fled away from the spot and injured Sunil @ Chikna fled away towards road. She further denied the suggestion that, after some time, she came to know that injured Sunil was taken to LNJP hospital and she voluntarily stated that she reached the LNJP hospital, after knowing the facts, from one auto-driver, that Sunil was in LNJP hospital.
11. PW4, Ms Babli, admitted the fact that, when she reached LNJP hospital, she came to know that Sunil @ Chikna had died. She denied the suggestion that police recorded, her statement, in the hospital and also that accused Raju Bengali, Akil @ Itawa, Ranjeet Kumar and Raju STD, alongwith associates, Sonu Bareiliwala and Sirkata, committed murder of Sunil @ Chikna, due to previous rivalry. She further deposed that, on 05.07.2015, she, alongwith SC No.66/15 State Vs Akil@Itawa etc Pages 6/30 police officials came to the spot from LNJP hospital and she pointed out the place of occurrence and that photographs were taken and that blood was scattered near the spot. She denied the suggestion that one blood stained towel of Sunil @ Chikna was lying there, and that one match box, was also lying there and that, police had taken the photographs, and that police prepared, site plan, at her instance, and that, at around 9.15 am, when she alongwith, police officials reached Paharganj Pul near, New Delhi Railway station, accused Raju Bengali, present in the Court, was drinking tea, at a tea shop and that she pointed out accused Raju Bengali, to the police and that, he was apprehended and, after interrogation, he was arrested. She further denied that, they, alongwith accused, Raju Bengali, reached under the bridge of Paharganj, where, accused Mohd Akil @ Itawa, was seen or that, after interrogation, he was arrested . She further denied that when accused, Raju Bengali, and Mohd Akil @ Itawa, were arrested, she put her thumb impression, at point A on Ex.PW4/C and Ex.PW4/D respectively. She also denied the suggestion that, on 05.07.2015, in the night, she alongwith police official, accused Raju Bengali and Akil @ Itawa were in a private van and in search of associates of the accused persons, reached Sheela Cinema, from where, she, alongwith two police officials, got down from the van and started searching the accused and that they were in a gali,where accused Ranjeet and Raju STD were talking on the backside of one car and that, on his pointing out, police apprehended accused Ranjeet and, Raju STD, and, after their interrogation, they were arrested. She admitted her thumb impressions, at point A on Ex.PW4/F and Ex.PW4/G. She denied that she put her thumb impression on Ex.PW4/F and Ex.PW4/G, when accused, Ranjeet and Raju STD were arrested, in her presence. She, voluntarily, stated that her thumb impression was obtained by the police, in PS Kamla Market, on several papers. She stated that, she is illiterate and could not read and write. She stated that she did not have any enmity with the police. She further denied that, police officials recorded her correct SC No.66/15 State Vs Akil@Itawa etc Pages 7/30 statement. She further denied that she deposed falsely, as she have been won over by the accused persons. This witness was also not cross-examined, by Ld defence counsel, in any manner.
12. PW5, Dr Arun Kumar, deposed that, on 08.07.2015, he was working as Sr. Resident at Department of Forensic Medicine, MAMC, Delhi, and, on that day, he conducted the postmortem examination on the dead body of Sh. Sunil @ Chikna S/o Upinder Kamat and, during examination, he found several external injuries, mentioned in his report Ex.PW5/A. After the postmortem, he had given opinion, about the cause of death, of deceased Sunil @ Chikna that 'hemorrhagic shock as a result of ante-mortem injury to thigh and associated blood vessels produced by pointed sharp edge object via injury no.8, which is sufficient to cause death in ordinary course of nature. However, viscera had been preserved to rule out concomitant common poisoning and alcohol intoxication. All injuries were fresh and ante-mortem in nature. Injury no.2,3, & 6 were produced by blunt force impact; injury no.1 & 7 were produced by sharp edge object; injury no.5,8,9, & 10 were produced by pointed sharp edge (single edge sharp) and injury no.3, 11 & 12 were produced by pointed object.
13. PW5, Dr Arun Kumar, further deposed that the probable time, since death, was about 3 & ½ days. He also prepared the diagram of the external injuries, which is Ex.PW5/B, bearing his signature at point A. After the postmortem, he prepared the postmortem report no. 589/15 running into 5 pages, and same is proved as Ex.PW5/A, bearing all his signature at point A. Viscera of deceased was preserved for chemical analysis, sealed and handed over to IO alongwith sample seal. Blood on gauge of deceased was preserved, sealed with the seal of MAMC SAK 14 and handed over to the IO, alongwith, sample seal.
SC No.66/15 State Vs Akil@Itawa etc Pages 8/30
14. PW5, Dr Arun Kumar, further deposed that, on 22.07.2015, IO Inspector Lalita Rawat, of the present case, came with an application with regard to opinion about the weapon of the offence and one sealed parcel sealed, having three seal impression of LR, pertaining to the present case. She also provided the copy of the postmortem report of deceased Sunil @ Chikna. PW5, further deposed that, he opened the seal of the pullanda and pullanda was also opened and one knife was found. He prepared the sketch of the said knife, which is Ex.PW5/C, bearing his signature at point A. He measured the said knife and mentioned its dimensions on the sketch. He examined the knife and external injuries, mentioned in postmortem report, Ex.PW5/A and opined that, injury no.1,3,7,8,9, & 10, on the body of deceased, were possible by the said knife, produced before him. He had given his subsequent opinion, Ex.PW5/D, bearing his signature at point A. After the examination, the knife was converted into pullanda and sealed with the seal of MAMC SAK 14 and handed over the said pullanda and subsequent opinion with sketch of diagram of knife to the IO. This witness was also not cross-examined by, Ld Defence counsel, in any manner.
15. PW6, Ct Sudhir, deposed that, on 12.08.2015, he was posted at PS Kamla Market and, on that day, on the instructions of the IO of the present case, he took 10 sealed pullandas with sample seals vide RC no. 87/21/15 and one sealed pullanda with sample seal vide RC no. 88/21/15 from malkhana of PS Kamla Market, to FSL Rohini. Copies of both RC were proved as Ex.PW6/A and Ex.PW6/B respectively, which bears his signature at point A. From the FSL, he received, an acknowledgement against both the RC, separately, copies of the acknowledgements is Ex.PW6/C and Ex.PW6/D. He returned to the PS, with copy of the RC, and, acknowledgements and handed over the same to MHC(M). He did not tamper with the seal of the pullandas till, it remained in his possession. This witness was also not cross-examined, by the accused persons, in any SC No.66/15 State Vs Akil@Itawa etc Pages 9/30 manner.
16. PW-7, Inspector Rupesh Khatri, deposed that, on 05.07.2015, he was posted as Crime Team Incharge, Mobile Crime Team, Central District and, on that day, at around 12.54 am, he received information from District Control Room. Upon receiving the said information, he, alongwith HC Hari Kishan (fingerprint proficient), and Ct Yogesh (photographer), reached near Parcel office, Thomson Road, Kamla Market, where SI Mangesh and Inspector Lalita, alongwith, other police staff from, PS Kamla Market met them. He inspected the spot, blood was scattered in the area of 100-150 meters, a blood stained gamcha (towel) , match- box were lying there. Scene of crime was photographed by photographer, Ct Yogesh, on his instructions, as well as, instructions of Inspector Lalita. He instructed Inspector Laita to lift the exhibit, mentioned in his report, Ex.PW7/A. After the inspection, he prepared his detailed report Ex.PW7/A, bearing his signature at point A. He left the spot, at around, 3.15 am, with the staff of the mobile crime team. This witness was also not cross-examined, in any manner.
17. PW-8, Sh Shyam Singh, deposed that, on the intervening night of 04/05.07.2015, he was posted as Traffic Inspector at Kamla Market Circle and, on that day, he was on night patrolling. At about 12 midnight, he was going from Kamla Market to Minto Road side, and when he reached at central verge, he saw that one person was lying in injured condition and blood was scattered on the road near him. After seeing him, he conveyed the information to Control Room to direct the PCR van to reach there. Blood was profusely oozing from the body of the injured. He shifted the injured, with the help of the constable, and, 1-2 passersby, in his government vehicle and he proceeded with the injured to LNJP hospital. When, he covered some distance, PCR Van came there and they went to LNJP Hospital, where, on his instructions, HC Yogesh, Incharge of the PCR SC No.66/15 State Vs Akil@Itawa etc Pages 10/30 Van, got admitted the injured in LNJP hospital.
18. PW8, Shyam Singh, further deposed that, on 22.09.2015, he pointed out the place, where, injured was lying, to Inspector Lalita, IO of the present case and she prepared the site plan Ex.PW8/A, bearing his signature at point A and she recorded his statement.
19. PW9, Ms Manisha Upadhyaya, deposed that, on 12.08.2015, she was working, at the aforesaid place, and, on that day, 10 sealed pullandas, out of which seven pullandas were sealed with the seal of LR and, one was sealed with the LNH, NEW DELHI, two were sealed with MAMC SAK-14 pertaining to case FIR no. 293/2015, PS Kamla Market, were received in the office of the FSL and the same was marked to her, for biological examination.
20. PW9, Ms Manisha Upadhyaya, further deposed that, after opening the pullanda, Parcel No.1, it was found containing dirty pieces of cemented material described as blood stained earth control sample. After opening parcel 1A, it was found containing piece of cemented material, described as earth control, After opening parcel No.2, it was found containing, one dirty dark brown foul smelling towel. After opening parcel 4, it was found containing dirty blackish concrete material, described as blood stained earth control. After opening Parcel 4A, it was found containing dirty blackish concrete material, described as earth control. After opening parcel no.5, it was found containing dirty wet foul smelling blackish brown underwear. After opening parcel 6, it was found containing one, knife (weapon of offence), made up of wooden and metallic handle and metallic blade, having very few brown stains. Afte opening parcel 7, it was found containing few dirty pieces of cloth, described as ash of the T-shirt. After opening parcel 8, it was found containing, one baniyan, having few dirty brown stains. After SC No.66/15 State Vs Akil@Itawa etc Pages 11/30 opening parcel 9, it was found containing, dirty yellowish brownish gauge cloth piece, described as blood sample. In biological examination, blood was detected on exhibit 1, 1A, 2, 4, 5, 6, 8 & 9. However, no blood was detected on exhibits 4A and 7.
21. PW9, further deposed that, in DNA examination, DNA profile generated from the source of Ex.9 (gauge cloth piece), is similar, with DNA profile generated, from the source of Ex.6 (weapon of offence) and accounted and similar with the mix DNA profile generated from the source of Ex.8 (baniyan). She prepared detailed report, in this regard and proved the same as Ex.PW9/A, bearing her signature, at point A & B and Allelic data Ex.PW9, which bears her signature at point A. This witness was also not cross-examined, by Ld defence counsel, in any manner, despite opportunity given.
22. PW10, SI Ramesh Chand, deposed that, on 05.07.2015, he was posted, at PS Kamla Market, and, on that day, he joined the investigation in the present case alongwith IO Inspector Lalita Rawat, Ct Ravinder, Ct Roop Lal, Ct Birbal and, on that day, at around 7.00 pm, they alongwith, two accused persons, namely, Akil @ Itawa and Raju Bengali, left the PS Kamla Market and reached Thomson Road, where Ms Babli, complainant met them. She joined the investigation, on the request of the IO. Thereafter, they made search of the other accused persons and reached at Pul Paharganj, near Sheela Cinema, where complainant, Ms Babli, identified two other persons, as the associate of the aforesaid two accued persons. On her instance, they apprehended the said persons and their names were revealed at Raju @ Std and Ranjit. IO interrogated both of them. Both the accused confessed their involvment in the present case. Accused Ranjit Kumar and Raju @ Std were arrested by the IO vide arrest memo, already Ex.PW4/F and Ex.PW4/G, respectively, both bearing his signature SC No.66/15 State Vs Akil@Itawa etc Pages 12/30 at point B. Personal search of accused were taken, vide personal search memo, Ex.PW10/A and Ex.PW10/B, respectively, bearing his signature at point A. Accused Ranjit Kumar and Raju @ Std were interrogated by the IO, in the presence of PW10, SI Ramesh Kumar, and their disclosure statement were recorded, vide Ex.PW10/C & Ex.PW10/D, respectively, bearing his signature, at points A. Thereafter, they alongwith all accused persons went to BSES office, near Pul Paharganj. From there, accused Raju @ Std, led them, in a jhuggi, near the Railway Line, from where he took out one knife under the Tripal, from the roof of the said jhuggi, and, told them that he used the said knife in the crime. Sketch of knife was prepared, vide Ex.PW10/E, which bears his signature at point A . The knife was measured and it was found 29 cm in length in total. Pullanda of the said knife was made and sealed with the seal of LR, which was taken into possession vide seizure memo Ex.PW10/F, bearing his signature at point A.
23. PW10, SI Ramesh Kumar, further deposed that accused Ranjit, disclosed that his wearing T-shirt, at the time of the incident, was soaked with the blood, therefore, he put the said T-shirt on fire, on the backside of the jhuggi. He pointed out the ash of the said T-shirt, at the backside of the aforesaid jhuggi. IO kept the said ash, in a white paper, and, the said white paper was put into plastic container and it was taped and sealed with the seal of LR and taken into possession vide seizure memo, Ex.PW10/G, bearing his signature at point A. Thereafter, they left the said place, and reached at the place of incident i.e. Premium Parking, Thomson Road, where accused Raju Bengali, Ranjit, Raju @ Std and Mohd. Akit @ Itawa, pointed out the place of occurrence, vide, pointing out memo Ex.PW10/H1 to Ex.PW10/H4, bearing his signatures at points A. Thereafter, they reached PS with the accused persons. Accused Ranjit disclosed that he was wearing the vest, which was worn by him, at the time of incident. Vest of accused Ranjit, having some blood stains was taken into possession, after SC No.66/15 State Vs Akil@Itawa etc Pages 13/30 preparing pullanda, sealed with the seal of LR, vide seizure memo Ex.PW10/J bearing his signature at point A. Thereafter, his statement was recorded and he was discharged from the investigation. This witness identified the accused and also identified the case property i.e. one knife, which was recovered, at the instance of accused Raju @ Std as Ex.P1 and one vest (baniyan), which was recovered from accused Ranjit as Ex.P2. This witness was not cross-examined on behalf of accused Raju Bengali. However, in the cross-examination, conducted on behalf of other accused persons, this witness stated that he did not enter any DD entry, before leaving the PS. They went alongwith two accused, Raju Bengali and Akil @ Itawa, to Thomson Road in a private car. The car was driven by a private driver. He further stated that he did not know, how complainant Ms Babli reached at Thomson Road. He further stated that they stayed at Thomson Road hardly for 10 minutes. They were generally making a search for co-accused Ranjit and Raju Std in the area of Paharganj. When they reached in front of Sheela Cinema, they found accused Ranjit (A-3) and Raju Std (A-4), standing behind the cars, which were parked in front of Sheela Cinema. No other person was standing near both of these accused persons but general public was passing through that area. Both the accused persons, namely, Ranjit and Raju Std, tried to hide themselves on seeing them, but they could not run because they had covered them from both the side. Accused Rajnit was wearing T-shirt and pant on that day. He further stated, in the cross-examination, that, the disclosure statements, and, arrest memos, were signed by the IO, himself and Ct. Ravinder. They stayed at Sheela Cinema, for about 1 or 1½ hour, and, they left Cinema at around 9.45 pm. The distance between Sheela Cinema and BSES office is near about 200 mtrs. No person was found in the said jhuggi, from where the knife was recovered. IO made inquiry about the occupants/owner of the said jhuggi, but the same fact could not be discovered. There were 4-5 jhuggis, near the jhuggi, from where knife was recovered. He denied the suggestion that there were so SC No.66/15 State Vs Akil@Itawa etc Pages 14/30 many persons in the area of jhuggis, but, he voluntarily stated that many persons were coming and going, on the road, situated, at the distance of 30-40 meters, from the Jhuggi area. IO requested the public persons to join the investigation, but, none agreed and went away, after telling their reasonable cause. IO did not serve any written notice to those, who refused to join the investigation. The height of jhuggi from where knife was recovered, was 7 ft. There was no ladder to reach/check the roof of the jhuggi. Accused Raju Std took out the knife from the roof of the jhuggi under the tirpal, at that time, one Constable pushed him towards the said roof. He have not seen such type of knife, recovered in this case, in the market. He denied the suggestion that knife was planted upon accused Raju Std. The wearing Vest (baniyan) of the accused Ranjit was having slip of make i.e. Dollar. They reached at the spot at around 10.45 pm. IO had done the writing work, while standing. This witness denied the suggestion that recovered baniyan was not of accused Ranjit or that the said baniyan was planted upon accused Ranjit, to falsely implicate him, in the present case.
24. PW11, Inspector Lalita Rawat, deposed that, on 04.07.2015, she was posted at PS Kamla Market and, on that day, DD no. 40A and 2A, Ex.PW11/A and Ex.PW11/B, were lodged in the PS Kamla Market. The said Dds, were marked to SI Mangesh. She was also informed about the said Dds, that one person was stabbed near Minto Road Chambery. She was informed, by SI Mangesh, that the said injured, died in the hospital. Thereafter, she went to LNJP hospital, alongwith one Ct Ravinder, where SI Mangesh, met her and handed over the MLC of the deceased to her. She inspected the dead body and got deposited the same in the mortuary. She made search of the eye witness in the hospital. One eye-witness, namely, Babli met her in the hospital. She recorded her statement Ex.PW4/A, bearing her signature at point B. She made an endorsement, from portion C to C on Ex.PW4/A, and gave the same to Ct SC No.66/15 State Vs Akil@Itawa etc Pages 15/30 Ravinder for registration of FIR. SI Mangesh also handed over one sealed pullanda, sealed with the seal of hospital, with sample seal, she seized the same vide seizure memo Ex.PW11/C, bearing her signature at point A.
25. PW11, Inspector Lalita Rawat, further deposed that from LNJP Hospital, she, alonghwith eye-witness, namely, Babli and SI Mangesh, came to the spot i.e. near Parcel office, Thomson road, Kamla Market, Delhi. She called the mobile crime team, who reached at the spot. Crime team inspected the spot and took the photographs. Crime team Incharge, handed over the report, Ex.PW7/A. PW11 prepared the site plan Ex.PW11/D, bearing her signature, at point A. she lifted the exhibits from the spot. She took out blood stains part of the wall, with the help of chhaini and hammer and it was kept in a plastic container. The said plastic container was taped and sealed with the seal of LR. The said container was marked as Ex.No.1. She took out the part of the wall, without blood stains with the help of chhaini and hammer and it was kept in a plastic container. The said plastic container was taped and sealed with the seal of LR. The said container was marked as Ex.No1A. Both were taken into possession, vide, seizure memo Ex.PW11/D1, bearing her signature at point A.
26. PW11, Inspector Lalita Rawat, further deposed that she went to divider of Vivekanand Marg, near Shivaji bus stand, Kamla Market, where one blood stained towel of white and green colour was found. She lifted the said towel and prepared the pullanda and sealed with the seal of LR. Pullanda of the said towel was marked Ex. No.2. One Match-box, was also found near the towel, she prepared the pullanda of the said match box by keeping it in a plastic container, and sealed the same with the seal of LR and the said pullanda was marked as Sr no.3. There was blood scattered near the divider. She took out the blood stained piece of road, with the help of chhaini and hammer and kept the same in SC No.66/15 State Vs Akil@Itawa etc Pages 16/30 plastic container, it was taped and sealed with the seal of LR. The said plastic container was marked as Sr. No.4. She took out the piece of the road, without blood stain, with the help of Chhaini and hammer, and, kept the same in plastic container, it was taped and sealed with the seal of LR. The said plastic container was marked as Sr. No.4A. The aforesaid pullandas were taken into possession vide seizure memo Ex.PW11/D2, bearing her signature at point A.
27. PW11, Inspector Lalita Rawat, further, deposed that she made search of accused persons, alongwith, SI Mangesh, complainant and other police staff, while they were searching and reached pul Paharganj, Arakansha Road, near railway station, where accused Raju @ Bengali and Mohd. Akil @ Itawa, were present. They were apprehended, at the instance of complainant Babli. She interrogated both the accused. After that, she arrested them, vide arrest memo, already Ex.PW4/C, and Ex.PW4/D, bearing her signature at point B. She conducted the personal search of both the accused vide personal search memo, Ex.PW11/D3 and Ex.PW11/D4 respectively, bearing her signature at point A. She interrogated accused Raju Bengali and Akil @ Itawa and recorded their disclosure statement, Ex.PW11/D5 and Ex.PW11/D6, respectively, bearing her signature at points A. On the same day, she produced the accused persons Raju Bengali and Akil @ Itawa, before Ld MM and got three days's PC Remand. Thereafter, they, alonghwith accused persons, returned to PS Kamla Market, where she deposited the case property, in the malkhana.
28. PW11, further deposed that, thereafter, she alongwith SI Ramesh, Ct Ravinder and other staff, with the accused persons started searching remaining co-accused persons. When they reached, New Delhi Railway Station, in search of other co-accused persons, complainant Babli met them and joined them. During the search, they reached near sheila Cinema, where accused Ranjit and Raju @ SC No.66/15 State Vs Akil@Itawa etc Pages 17/30 STD @ Liyakat Ali (since expired), were sitting, on the backside of one car, in the street. On the pointing of the complainant, they apprehended both of them. She interrogated, accused Ranjit and Raju @ STD and arrested them, vide arrest memo Ex.PW4/F and Ex.PW4/G, both bearing her signature at points C. She conducted their personal search memo Ex.PW10/A and Ex.PW10/B, both bears her signature at points B. She interrogated accused Ranjit and Raju STD and recorded their disclosure statement, vide memo, Ex.PW10/C and Ex.PW10/D, both bears her signature at points B.
29. PW11, Inspector Lalita Rawat, further deposed that, accused Raju STD, disclosed that he had kept the alleged weapon i.e. knife in a jhuggi, situated near Sainik Asharah Grah, adjoining the railway line. Accused Raju Std led them, at the said jhuggi, from, where, at the pointing out of the accused Raju STD , one knife was recovered. The said knife was having blood stains. She prepared the sketch of said knife vide sketch memo, Ex.PW10/E, bearing her signature at point B. She measured the knife and mentioned the measurement in the sketch. She prepared the pullanda of the knife and sealed with the seal of LR. It was taken into possession, vide seizure memo, Ex.PW10/F, bearing signature at point A.
30. PW11, Inspector Lalita Rawat, further deposed that, accused Ranjit pointed out the place, where they had burnt his wearing T-Shirt at the time of the incident, and that place was near the Jhuggi, from where knife was recovered, at the instance of Raju STD. At that place, burnt ash of the T-shirt was lying, she lifted the said ash and kept in a plastic container. The said container was kept and sealed with the seal of LR and was taken into possession, vide seizure memo, Ex.PW10/C, bearing his signature at point B. She further deposed that she prepared the site plan ExPW11/D7, bearing her signature at point A, of the place of the recovery of knife, as well as the said ash of the burnt T-shirt. All the SC No.66/15 State Vs Akil@Itawa etc Pages 18/30 accused persons, namely, Raju Bengali, Ranjit, Raju STD and Mohd Akil @ Itawa pointed out the place of occurrence. She prepared the pointing out memos Ex.PW10/H1 to Ex.PW10/H4, all bearing her signature at point B.
31. PW 11, Inspector Lalita Rawat, further deposed that from the place of the incident, they took the accused persons, to the hospital for their medical examination. From the hospital, they returned to PS Kamla Market. Accused Ranjit was wearing a vest of white colour, having some stains of brown colour. She got arranged, one T-shirt for accused Ranjit, thereafter, she took the said vest of accused Ranjit and prepared the pullanda. It was sealed with the seal of LR and taken into possession vide seizure memo, already Ex.PW10/J, bearing her signature, at point B.
32. She further deposed that, on 06.07.2015, accused persons were produced before the court and she got 2 days' PC Remand of all the accused persons. During the PC remand, with the assistance of the accused persons, they made search of the remaining two accused persons, namely, Sirfara and Sonu bareiliwala, but they could not be traced. PW11, further deposed that, she informed father and brother of the deceased, namely, Upender and Lalit Kamath respectively, who came to Delhi, on 08.07.2015. Both of them identified the dead body of Sunil @ Chikna, lying in the mortuary of MAMC and their statement was recorded vide Ex. PW2/C and Ex.PW2/A, in this regard, which bears her signature at point B. She inspected the dead body of deceased Sunil @ Chikna and filled up the inquest form no.25.35 (1)(p) Ex.PW11/D8, bearing her signature, at point A. She made request to the head of the Department, Department of Forensic Medicine, MAMC for the autopsy of the dead body, vide inquest letter, Ex.PW11/D9, bearing her signature at point A. On her request, postmortem was conducted by the doctor and after the postmortem, she handed over the dead SC No.66/15 State Vs Akil@Itawa etc Pages 19/30 body to Upender Kamath and Lalit Kamath, vide receipt, memo Ex.PW2/B, bearing her signature at point C. After the postmortem, doctor had given three sealed pullandas sealed with the seal of MAMC X SAK-14X with the sample seal. She seized the aforesaid parcels, vide seizure memo, Ex.PW11/D10, bearing her signature at point A.
33. PW11, Inspector Lalita Rawat, further deposed that, on 08.07.2015, she got produced the accused persons, before the court, through one Sub- Inspector, thereafter, accused persons were remanded in judicial custody by Ld MM. Later on, she collected the postmortem report Ex.PW5/A, with the diagram of external injuries Ex.PW5/B.
34. PW11, Inspector Lalita Rawat, further deposed that, on 22.07.2015, she took the pullandas of the knife from the MHC(M) and went to the MAMC. She requested the Head of the Department, Department of Forensic Medicine, with regard to knife recovered. Doctor had given his opinion Ex.PW5/D, with the diagram of the knife, Ex.PW5/C. Doctor handed over the sealed parcel of the knife sealed with the seal of MAMC X SAK-14X. She returned to the PS and deposited the said pullanda of the knife in the malkhana. She got sent the exhibits to FSL, Rohini, through Ct Sudhir. During the investigation, Inspector Mahesh Kumar, Draughtsman, inspected the spot, on her request, with her and took the measurements. Later on, Inspector Mahesh Kumar, handed over one scaled site plan, Ex. PW11/E. During the investigation, she collected the logbook of PCR Van of Oscar 26, Ex.PW11/F. She seized the said document vide seizure memo, Ex.PW11/G, bearing her signature at point A. She also collected the PCR form Ex.PW11/G1, with certificate U/s 65B Indian Evidence Act as Ex.PW11/G2.
35. During investigation, PW11 Insepctor Lalita, recorded the statement SC No.66/15 State Vs Akil@Itawa etc Pages 20/30 of Pws. After completion of investigation, she prepared the charge-sheet and filed it, before the Court through SHO Concerned. She also collected FSL report Ex.PW9/A, Ex.PW9/B and Ex.PW11/H, and submitted the report. She identified the case property i.e. knife as Ex.P1, which was recovered, at the instance of accused Raju STD, the vest as Ex.P2, which was worn by accused Ranjit, one dirty dark brown towel as Ex.P3 and ash as Ex.P4, which was recovered, at the instance of accused Ranjit.
36. During the cross-examination, PW11, Inspector Lalita Rawat stated that she did not remember, as to who had accompanied her, in search of accused persons, on 04.07.2015. She further deposed that, she reached at Pul Paharganj, Arakshan Road, at around 9.30 am. She did not examine, any other public witness, except, complainant, Babli, at the time of arrest of accused, Mohd Akil @ Itawa, and, Raju Bengali. Interrogation of aforesaid, both, accused persons, were made at the place of their arrest. They remained at the place of arrest of both the accused persons, for about 1½ to 2 hours. She further stated that, she left the PS at around 7.00-7.15 pm, and, that there were many vehicles parked at Sheila Cinema. However, at that time, public persons were coming and going. She denied the suggestion that accused persons namely, Liyakat Ali @ Raju @ STD and Ranjeet were not sitting, between the two cars, parked in the parking area near Sheila Cinema. No notice was served to those public persons, who refused to join the investigation. She admitted the fact that, no public persons, except complainant, Babli, had joined the investigation, at any point of time, during the investigation. She arrested the accused persons, namely, Liyakat Ali @ Raju @ STD and Ranjeet, at around 9.30 pm. Proceedings, related to arrest of the said accused persons, were done, at the place of their arrest. She denied the suggestion that, there was no space to stand for 5-7 persons, at the place of arrest of accused persons. She, voluntarily, stated that SC No.66/15 State Vs Akil@Itawa etc Pages 21/30 she had done the proceedings, near the place of arrest i.e. outside the Sheila Cinema. She did not count the vehicles, parked, in the parking, near Sheila Cinema. They stayed at Sheila Cinema for about 20-25 minutes. She did not make any inquiry, about the owner of the jhuggi, from, where the knife was recovered, at the instance of accused Raju STD, as there were no public person available. Again said, she did not remember, if any public person, was available there or not. She denied the suggestion that there were too many jhuggis, she stated that there were 2-3 jhuggis, only. The knife was kept inside the jhuggi under the tirpal. She obtained the signature of, SI Ramesh, and, Ct Ravinder, as a witness, on sketch memo of knife. She denied the suggestion that complainant Babli was with her, at the time of recovery of the knife. She voluntarily stated that, at the time of recovery of knife, she was sitting in the car. She could not say, if the said knife is easily available in the market or not. She denied the suggestion that no knife was recovered, as claimed by them, at the instance of accused Raju @ STD @ Liyakat. She made the sketch of knife, pullanda of knife and seizure of knife, at the place of recovery and it took hardly 10 minutes. She further stated that the place from where ash of the T-shirt was found, it was an open area. She left the place of recovery, at around 10.00 pm. She further stated that vest (baniyan) of accused Ranjeet was seized, in the PS Kamla Market. The said vest was made of Dollar, but she did not remember the size/number of vest. She got managed the T-shirt for accused Ranjeet through one Constable, but she did not remember, his name. She did not remember the time, when she seized the vest of accused Ranjeet and arranged the T-shirt. She further denied the suggestion that vest was planted upon the accused. She obtained the signature of SI Ramesh, as a witness, on the seizure memo of the said vest. She further denied the suggestion that accused persons have been falsely implicated case or that no recovery was effected from them, as claimed or that accused persons were lifted from their houses or that they were not arrested, at the place, as SC No.66/15 State Vs Akil@Itawa etc Pages 22/30 claimed by them.
37. PW-12 ASI Ajab Singh MHC(M) produced the original register no. 19 and 21, pertaining to the entries of present case. He deposed that, as per record, on 05.07.2015, Inspector, Lalita Rawat, deposited sealed pullandas, mentioned at Sr. No. 543, in the present case, and, he proved the photocopy of the same as Ex.PW12/A. He further stated that, on 08.07.2015, Inspector Lalita Rawat, deposited the case property in the malkhana and, entry, at Sr. no. 548 was made, in this regard. He proved the photocopy of said entry as Ex.PW12/B, running into two pages. He also proved the photocopy of RC no. 76/21/15, as Ex.PW12/C, vide which, as per record, on 22.07.2015, one sealed pullanda pertaining to knife sealed with the seal of LR, was given to Ct Praveen, to deposit the same, with HOD, FMD MAMC Delhi, vide RC no. 76/21/15. He further deposed that, as per record, on 12.08.2015, exhibits of the present case, were given to Ct Sudhir to deposit with FSL Rohini vide RC, no. 87/21, and 88/21, copies of both the Rcs were proved as Ex.PW12/D and Ex.PW12/E. Ct Sudhir received two acknowledgements against both the RC from FSL Rohini and same is proved as Ex.PW12/F & Ex.PW12/G. In the cross-examination, he denied the suggestion that, he was not, MHC(M), at that point of time, when, case property of the present case was deposited in the malkhana.
36. I have heard Ld Addl PP for the State and Ld Defence counsel for the accused persons and have gone through the material available on the record file, including the entire prosecution evidence.
37. Ld Addl PP for State has contended that, from the evidence of police witnesses, it is clearly proved that, the accused persons were involved, in the commission, of murder of Sunil and all the police witnesses have deposed in the SC No.66/15 State Vs Akil@Itawa etc Pages 23/30 same tone and tenor, regarding the manner of the investigation conducted, in this case, and, there are no contradictions, emerging out of their depositions to give the benefit of same to the accused persons. It is further contended that, PW5, Dr Arun Kumar, deposed that, he examined, the knife and external injuries, mentioned in postmortem report, Ex.PW5/A, and, he opined that injury no. 1, 3, 7, 8, 9 & 10, on the body of deceased, were possible by the knife, produced before him. It is further contended that, the recovery of knife has been proved, by the prosecution through deposition of police witnesses, who deposed that, accused Raju @ STD got recovered the said knife from a jhuggi, situated near Sainik Ashrah Grah, adjoining, the railway line and the said knife has been identified by the witnesses as Ex.P1, and from this, it is clear, that accused persons used the knife, in commission of offence. It is further contended that, other connecting link, between the accused persons and the commission of offence, is blood, which is detected on knife and vest of accused Ranjeet. It is further contended that, in the deposition of PW9, Ms Manisha Upadhaya, it has clearly come that, in DNA examination, DNA profile generated from the source of Ex.9( gauge cloth piece), is similar with DNA profile generated from the source of Ex.6 (weapon of offence) and similar with the mix DNA profile generated, from the source of Ex.8 (baniyan) and detailed report of same has been proved as Ex.PW9/A. It is further contended by Ld Addl PP for State, that, from this part of evidence, it is amply clear that the blood sample, taken on the gauze, cloth piece is similar, with the blood stains, found on the recovered knife and the vest of accused Ranjeet, which is proving the fact that the murder of Sunil @ Chikna has been committed by the accused persons. It is further contended by Ld Addl PP for State that, prosecution has, successfully, proved its case beyond reasonable doubt, as, all the circumstances, are pointing fingers, towards the accused persons, and, there is not an iota of doubt , that deceased was murdered by accused persons and, once the offence is proved, the accused persons deserves SC No.66/15 State Vs Akil@Itawa etc Pages 24/30 severe punishment for their gruesome act of murder, as one precious life has been lost, because of their brutal act.
38 On the other hand, Ld defence counsel, for accused persons contended that the eye witness, in this case, i.e. PW4, Ms Babli, has not deposed anything against the accused persons and, in her cross-examination, conducted by Ld Addl PP for State, she has categorically, denied the suggestion that, at around 11.00 pm, on 04.07.2015, while, she was talking with Sunil @ Chikna, at the aforesaid place, at around 11.30 pm, accused Raju Bengali, Akil @ Itawa, Ranjeet Kumar and Raju STD, alongwith, associates, Sonu Bareiliwala and Sirkata, suddenly came there and started abusing Sunil @ Chikna. She further denied the suggestion, put to her that accused Akil @ Itawa said that 'aaj Sahi hata laga hai iska kaam tamam kar do' or that when she asked the reason about the quarrel, she was abused by the accused persons and asked her to keep mum, otherwise, they would kill her. She further categorically denied that accused persons and their associates caught hold of Sunil @ Chikna and started giving him kick and fist blows and that accused Sonu was having knife and he caused several injuries, on the thighs of Sunil @ Chikna.
39 It is further contended by Ld defence counsel that from the deposition of this witness, it is clear that accused persons are falsely implicated in this case, and they have no connection with the commission of the offence. It is further contended that police have not made any other public person as a witness, and it shows that police have falsely implicated the accused persons because it is highly improbable that, no other person was available, at the spot. It is further contended that knife was planted upon the accused, just to show the case as solved, as, at the time of recovery, of knife, no public person was joined in the investigation, to corroborate the fact of recovery and it creates doubt, on the SC No.66/15 State Vs Akil@Itawa etc Pages 25/30 manner of investigation conducted, by the police officials. It is further contended, by Ld Defence counsel, that the deposition of public witnesses, should get some corroboration, but, in the present case, no such corroboration has come on record and, hence, it cannot be said that prosecution has successfully proved its case beyond reasonable doubt and in absence of any independent witness, at the time of recovery, creates doub regarding the sequence of events as alleged by the prosecution, and the benefit of same should be given to the accused persons and they are entitled for acquittal.
40. Section 34, 300 and 302 of IPC are reproduced, herein below, for ready reference.
41. Section 34 of IPC reads as under:-
"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone"
42. Section 300 of IPC reads as under:-
"Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.-It it is done with the intention of causing such bodily injury as the offender know to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly,-If it is done with the intention of causing SC No.66/15 State Vs Akil@Itawa etc Pages 26/30 bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly,-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
43. Section 302 of IPC reads as under:-
"Whoever commits murder shall be punished with death, or imprisonment for life, and shall be liable to fine.
44 The Hon'ble Supreme Court of India in a case titled as Takdir Samsuddin Sheikh Vs State of Gujarat & Anr. AIR 2012, Supreme Court 37 has held that:-
"It is settled legal preposition that, while appreciating the evidence, the court has to take into consideration, whether the contradictions/omissions/improvements/embellishments etc had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters, without affecting the case of the prosecution, should not be made the court to reject the evidence, in its entirety. The court, after going through the entire evidence must form an opinion about the credibility of the witnesses.
45 In Harish Chandra V Rex, 1950 ALJ 220, it has been held that, "in criminal cases, the prosecution has to prove the guilt of the accused beyond SC No.66/15 State Vs Akil@Itawa etc Pages 27/30 reasonable doubt. Mere preponderance of probability could not do. In criminal cases, the burden of proof, even, in the sense of establishing a case is always on the prosecution. The prosecution has to stand on its own legs. It has to prove the guilt of the accused on its own evidence. The weakness of the defence will not help the prosecution.
46 In Wingly V State of Madhya Pradesh, AIR 1954 SC 15, it has been observed by the Supreme Court that, "If the prosecution evidence as a whole is unreliable and cannot be accepted, as correct for specific reasons, the silence of the accused can be of no avail to the prosecution, for such conduct of silence can never be permitted to become a substitute for the proof by the prosecution.
47 In Narain V. Gopal, AIR 1960 SC 100, Supreme Court has held that "In Criminal cases, it is an accepted principle of criminal jurisprudence that burden of proof is always on prosecution. It never changes. This conclusion is derived from the fundamental principle that, the accused should be presumed to be innocent, till he is proved guilty beyond reasonable doubt and accused has got right to take benefit of some reasonable doubt.
48 In Vijayee Singh V State of U.P, AIR 1990 SC 1459, it has been observed by the Supreme Court, that, "if the accused succeeds in creating reasonable doubt or shows preponderance of probability in favour of his plea, the obligation on his part gets discharged and he would be entitled to be acquitted.
49 In Jarnail Singh Vs State of Punjab AIR 1966 SC 755, the Supreme Court observed that, in criminal cases, the burden of proving the guilt of the accused beyond all reasonable doubt always rests upon prosecution, and, therefore, if it fails to adduce the satisfactory evidence to discharge that burden, it SC No.66/15 State Vs Akil@Itawa etc Pages 28/30 cannot fall back upon evidence adduced by the accused persons, in support of their defence to rest its case solely thereupon.
50 In the present matter, only one public witness i.e. PW4, Ms Babli, has been examined and she has also not deposed anything against the accused persons and have categorically denied the suggestion, regarding the injuries inflicted upon deceased, by the accused persons. The connecting evidence i.e. recovery of knife and vest, is also doubtful, as, at the time of recovery, no independent witness was joined, in the investigation, so as to corroborate the same with the police witnesses, and in the absence of any independent witness, at the time of recovery, prosecution has failed to prove the recovery, as per requirement of the law. In view of the above, the recovery of the knife from the possession of accused persons is not proved by the prosecution, beyond reasonable doubt. Further, the contention of Ld Addl PP, regarding the DNA report, which shows that blood was detected on knife and vest are similar to the blood stains on the recovered knife and vest, is also not tenable, because the recovery of knife, at the instance of accused, itself is doubtful. In the case in hand, it may be pointed out that the prosecution has failed to prove any clinching, reliable and trustworthy evidence against the accused persons. The only eye witness, namely, Ms Babli has not deposed anything against accused persons. Further, there is no clinching, reliable and trustworthy evidence against the accused persons and the evidence produced by the prosecution, in toto, is not sufficient to convict the accused persons for the offences, punishable U/s 302/34 of IPC
51. Hence, considering the overall facts and circumstances and the discussions made, herein above, it is clear that the prosecution evidence should be of such a nature that it should not leave any doubt, regarding the involvement SC No.66/15 State Vs Akil@Itawa etc Pages 29/30 of accused persons, in the commission of offence and when any doubt cripples in the mind, the benefit of same goes to the accused persons. In my opinion, in the present case, the fact that, PW4 MS Babli, who is the only, public witness, has not deposed anything against the accused persons, and the recovery of knife, is also doubtful, in the absence of any independent witness, hence, the prosecution has not been able to prove its case beyond reasonable doubt, against the accused persons. Accordingly, accused Akil @ Itawa, Raju Bangali and Ranjeet Kumar are acquitted for the offences punishable U/s 302/34 of IPC.
Announced in the open Court (Ramesh Kumar-I)
on 5th December, 2019 Additional Sessions Judge
(Central) Tis Hazari Courts
Delhi
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