Delhi District Court
State vs Ashu on 22 October, 2024
IN THE COURT OF MS.SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI COURTS,
DELHI.
CNR No. DLWT01-009438-2021
Case No.707/2021
FIR No. 265/2021
PS Ranjit Nagar
State
v.
Ashu
S/o Sh. Jasvir
R/o Gali No. 7, Pandav Nagar,
Ranjit Nagar, Delhi.
Date of Institution 07.11.2021
Date of committal 07.12.2021
Date of Charge 05.03.2022
Charge framed under Against accused Ashu for the offence
section punishable u/s 307/34 IPC.
Date of reserving 21.10.2024
Judgment
Date of Decision 22.10.2024
Final Judgment Accused Ashu is acquitted of the
charge U/s 307/34 IPC
SC No. 707/2021 Page 1 of 23
State v. Ashu
JUDGMENT
Brief facts of the case :
1. Accused Ashu has been facing trial of the charge that on 09.08.2021, at 01:00 AM (mid-night), on the road in front of public toilet situated near Pandav Nagar red light, Delhi within the jurisdiction of PS Ranjit Nagar, accused Ashu alongwith his three other associates (since absconding) in furtherance of their common intention, reached there on motorcycle and he caused stab injuries on the neck of complainant Rahul Chhabra with knife, while co-accused persons had caught hold the complainant, with such intention or knowledge and under such circumstances that if by that act they had caused the death of complainant, they would have been guilty of murder.
Investigation conducted :
2. On receipt of DD no. 5A dated 09.08.2021, SI Awadhesh Narayan alongwith Ct. Ravi Dutt reached at the spot i.e. TC Camp 222, Gali no.7, Pandav Nagar, Red light near toilet where they came to know that the injured Sh. Rahul had been taken to RML hospital by the PCR van. IO/SI Awadhesh Narayan left the Ct. Ravi Dutt at the spot and went to RML hospital where he found the injured Rahul Chhabra admitted in the hospital vide MLC No. E/164219/513855 wherein the doctor has mentioned the alleged history i.e. 'physical assault with knife at Ranjeet Nagar, lacerated wound over left side of neck 11 x 2 cm and no other SC No. 707/2021 Page 2 of 23 State v. Ashu external injury.' Thereafter, IO recorded the statement of injured Sh.
Rahul Chhabra wherein he has stated that he is doing the work of clothes at Tank Road, Karol Bagh, Delhi. On 09.08.2021, at about 01:00 AM, he was standing outside gate no.7, Pandav Nagar and in the meanwhile, four boys came there on bike out of whom, one of the boys was Ashu whom he knew earlier. He further stated that there, Ashu had talked for about 4-5 minutes and informed him that he had been released from jail on Parole. He further asked the complainant to inform Bunty not to give evidence in his cases otherwise he will kill him. He stated that he will inform Bunty however, he did not know whether Bunty will give evidence before the Court or not. Thereafter, accused Ashu asked him to come alongwith him for some distance and he took him near washroom at red light which is out of the surveillance of CCTV cameras. One another associate of Ashu also came there, who caught hold of his hands and accused Ashu took out a knife and stabbed on the back side of his ear at the neck and thereafter, they both ran away from the spot. He has further stated that thereafter, his friend Rajender Sharma, who had seen the incident from a distance, made a call at 100 number.
3. On the basis of statement of complainant as well as MLC of injured, FIR was got registered for the offence u/s 307 IPC through Ct. Ravi Dutt. Crime team was called who inspected the spot and prepared detailed report. Thereafter, IO prepared site plan at the instance of complainant Rahul Chhabra. From the SCRB, it was revealed that the accused is also involved in other case bearing FIR No. 234/2018 PS Ranjeet Nagar and SC No. 707/2021 Page 3 of 23 State v. Ashu therefore, raid was conducted at his house however the same was found locked for the last three years. Thereafter, in the evening, accused Ashu has appeared at the Police Station alongwith his counsel and surrendered himself at the Police Station. Investigating agency made inquiries from him; interrogated him and arrested him in the present case. Accused also made disclosure statement in the present case wherein he admitted his involvement in the present case. Thereafter, during investigation, one day PC remand of accused was obtained and during PC remand, accused got recovered one knife behind the bushes and the same was taken into possession through seizure memo by the Investigating Officer. IO prepared pointing out memo; rough sketch of recovered knife as well as site plan of recovery of knife however, accused did not sign on the site plan of recovery of knife. Case property was deposited in the malkhana. Statements of witnesses were recorded u/s 161 Cr.P.C.
4. During investigation, efforts were made to trace the co-accused persons. Blood sample of complainant was collected. Knife was sent to FSL. The opinion regarding nature of injury of the injured was obtained wherein he has opined the nature of injury as 'simple'. The presence of co-accused Dheer Singh is seen in the video footage, which was recorded in Pen drive and the same is attached with the charge-sheet. After completion of investigation, the charge-sheet was filed against accused Ashu before the concerned Court.
SC No. 707/2021 Page 4 of 235. Charge for the offence punishable under section 307/34 IPC was framed by the Ld. Predecessor of this Court on 05.03.2022 against accused Ashu, to which he pleaded not guilty and claimed trial.
The Trial Prosecution evidence :
6. The prosecution in support of its case had examined eight witnesses. PW- 1 SI Kulbir Singh (duty officer); PW-2 Sh. Rahul Chhabra (complainant/injured); PW-3 Dr. Janitta Kundaikar ( proved the MLC of injured); PW-4 Sh. Rajender Sharma @ Bunty (PCR Caller/ eye witness); PW-5 Sh. Dheeraj Bhardwaj (examined the exhibits i.e. knife and blood sample of victim); PW-6 ASI Ram Kumar (PCR official who took the injured and got admitted in the hospital ); PW-7 Ct. Rohit (handed over the copy of FIR and rukka to IO/SI Awadhesh Narayan ); PW-8 HC Ravi Datt Yadav (witness of investigation); PW-9 SI Awadhesh Narayan (Investigating Officer); PW-10 ASI Rajesh Kumar (witness of investigation); PW-11 Dr. Jyoti Nigam (prepared the MLC of injured) and PW-12 HC Rakesh (MHC/M). The relevant portion of their testimonies are discussed under the succeeding paragraphs.
7. PW-1 SI Kulbir Singh, duty officer has proved the FIR no. 265/2021 of the present case as Ex.PW-1/A and his endorsement proved as Ex.PW-1/B. He deposed to have handed over copy of FIR and original rukka to Ct. Ravi Dutt after registration of FIR for further handing over SC No. 707/2021 Page 5 of 23 State v. Ashu the same to IO/SI Awadhesh Narayan. He had also issued certificate u/s 65B of the Indian Evidence Act, proved as Ex.PW-1/C.
8. PW-2 Sh. Rahul Chhabra, complainant/injured has deposed that he does not remember the exact date of incident however, it was year 2021 and, on that day, in the night time, he was present at Gate No. 7, Pandav Nagar. In the meantime, 4-5 persons came from his back side and caught hold of him by neck from back side and caused injuries on his neck by a sharp- edged weapon. Due to which he fell down. Public persons gathered there. One person namely Bunty made call at 100 number. He was taken to the RML Hospital by Bunty. Police Officer reached at hospital. He had informed them about the incident. Police Officer recorded his statement Ex.PW-2/A. On the same day, he was discharged from the hospital after giving stitches on his injury on neck and thereafter, he went to his house. 8.1. However, this witness could not identify the knife (Mark P1) and he also could not identify the assailant who had caused injury on his neck as he could not see the assailant since he had caused injury on his neck from backside. He proved to have shown the place of incident to the police, who had prepared site plan, proved as Ex.PW-2/B. 8.2 Since the injured turned hostile, he was cross-examined by the Ld. Addl. P.P. for the State wherein he has admitted that the date of incident is 09.08.2021. He is not sure whether it was 01:00 AM however it was late night hours. He has voluntarily deposed that at that time, he was under
the influence of liquor and hence, he is not sure about the time. He also admitted that at that time, he was working at clothes shop as Salesman at SC No. 707/2021 Page 6 of 23 State v. Ashu Tank Road, Karol Bagh. He correctly identified the accused before the Court. He also admitted that father of accused Ashu is Sh. Jasbeer and he was residing at Pandav Nagar, Delhi. He knew accused since 2009-10. He also admitted that accused met him at the spot and asked about his wellness and also told that he had been released from jail on parole and he should tell Bunty S/o Sh. Bansi Lal not to give statement against him in a case. He had told accused Ashu that he will tell Bunty not to give evidence against accused Ashu but it depends upon the wish of Bunty to give evidence or not to give evidence. He also admitted that there was CCTV camera near the gate No. 7 and there are CCTV Camera in maximum streets of Pandav Nagar area. He has further deposed that while talking with accused Ashu, he took him near the public toilet near Red Light, which was situated approximately 100-150 meters from the Gate No. 7 of Pandav Nagar, where 3-4 persons also reached there. One of the said persons caught hold of his hand from back side and caused stab injury on his neck. He could not say whether it was accused Ashu who had caused stab injury on his neck by the knife. He has also admitted that after causing stab injury on his neck, the person who had caught hold of him from the back side and accused Ashu had run away from there. He has further deposed that Rajender Sharma is known to him and he had seen him and made call at 100 number. He has further deposed that Rajender Sharma was not present at the time of incident with him and he is not confirmed whether he had seen the incident or not. He has further deposed that once he was taken by the IO to RML hospital by his SC No. 707/2021 Page 7 of 23 State v. Ashu motorcycle and on that day, his blood sample was taken by the doctor but he does not remember the exact date, however, it was after about one week from the date of incident.
9. PW-3 Dr. Janitta Kundaikar has proved the MLC bearing no.
E/164219/513855 dated 09.08.2021, as Ex.PW-3/A and deposed that after giving first-aid, the patient was referred to surgery department. Thereafter, in the surgery department, Dr. Shabab Anwar had attended the patient for further treatment and management as the patient was suffering from lacerated wound over left side of neck 11 x 2 cm and suturing was done and hence, the nature of injury was opined as 'simple' by Dr. Shabab Anwar at point X on the MLC Ex.PW-3/A.
10.PW-4 Sh. Rajender Sharma has deposed that he is doing the business of recording of music at N-63, Ground floor, Subhash Nagar, Sham Nagar, Delhi. The incident took place more than one year ago and, on that day, he was alone. He was returning to his home at Pandav Nagar from his music studio. When he reached outside of Gali no. 07 and was parking his scooty, he saw that Rahul Chhabra was having injury on his neck. The injury was grave and he made call at 100 number for his treatment. After about 15-20 minutes, police officials reached there and took Rahul Chhabra at RML hospital.
10.1. Since the witness turned hostile, he was cross-examined by the Ld. Prosecutor, wherein he has deposed that Rahul Chhabra was known to him prior to the incident and he was residing at Sudershan Park. He also deposed that previously Rahul Chhabra was residing in his locality in SC No. 707/2021 Page 8 of 23 State v. Ashu Pandav Nagar and subsequently, he shifted to Sudershan Park. He also deposed that he knows accused Ashu @ Dharmender since childhood and he is one of the witness in another case of murder registered against the accused. He further deposed that his mobile number is 9971978205. At the time of incident, he was having another mobile number 7982348219 and the said number with mobile is lost. Hence, he had taken the abovesaid new number which is still in his use. He has further deposed that when he made call at 100 number, he informed the police that Rahul Chhabra sustained injury and requested them to send ambulance. This witness after seeing the CCTV footage, which was played before the Court, has stated that the person who is seen having beard is Rahul Chhabra and the person who is wearing white clothes is he himself. He has also proved the Pen drive as Ex.P.2 before the Court. During examination of this witness, CCTV footage FIR 265-21(3).mp4 was played before the Court wherein this witness alongwith injured and two other persons are shown standing and PCR came and thereafter, the injured sat in the PCR and went.
11.PW-5 Sh. Dheeraj Bhardwaj has deposed that on 25.08.2021, two sealed parcels in connection with the present case were received in the office through SI Avdhesh and the same were assigned to him for examination. One of the said parcels was duly sealed with the seal of RTNGR II and second parcel was duly sealed with the seal of CMO DR RML HOSPITAL ND. He had examined both the said parcels and on opening parcel no.1, it was found containing one knife and same was exhibited as SC No. 707/2021 Page 9 of 23 State v. Ashu Ex.1; on opening second parcel, it was found containing blood sample in a tube describe as blood sample of victim and same was exhibited as Ex.2. After examination, blood was detected on Ex.1 and Ex.2. After DNA examination of the abovesaid knife and blood sample of victim, he opined that the DNA profile generated from source Ex.1 is found to be matching with the DNA profile generated from source Ex.2. He had also prepared detailed report, proved as Ex.PW-5/A. Allelic data of Ex.1 and Ex.2 were also prepared and the same is proved as Ex.PW-5/B. After examination, the remnants of exhibits have been sealed with the seal of 'DB FSL DELHI'.
12.PW-6 ASI Ram Kumar has deposed that on 08.08.2021, at about 01:24 AM, a PCR call was received at PCR van by him regarding firing and causing stab injury by blade on neck. After receiving the said information, he reached at the spot at Gali no.7, Pandav Nagar, where one injured who disclosed his name as Rahul Chabbra was found in injured condition and he was having cut injury on his neck. He took him to RML hospital by the PCR van where he was got admitted and MLC was prepared.
13.PW-7 Ct. Rohit has deposed that on 09.08.2021, duty officer had handed over copy of FIR and original rukka to him to hand over the same to IO/SI Avdhesh Narain. Thereafter, he went to the spot i.e. near Pandav Nagar red light public toilet and handed over copy of FIR and original rukka to him and joined the investigation.
14.PW-8 HC Ravi Datt Yadav has deposed that on 09.08.2021, he had joined the investigation in the present case with IO/SI Avdhesh Narain and on SC No. 707/2021 Page 10 of 23 State v. Ashu receipt of DD no. 5A by the IO, he alongwith the IO went near Pandav Nagar public toilet. On inquiry, it was revealed that injured was taken to RML hospital. IO left him at the spot and he went to the RML hospital. He has further deposed that after some time, IO returned back to the spot and handed over rukka to him for getting registration of the FIR. He went to PS and handed over said rukka to the duty officer and thereafter, he returned back to the spot on calling of the IO. Investigating Officer inspected the spot but no empty cartridge was found on the spot. IO made efforts to trace the eye witness of the firing but no eye witness was found present. In the meantime, Ct.Rohit also reached the spot alongwith copy of FIR and original rukka and handed over the same to the IO. IO prepared the site plan at the instance of the complainant, proved as Ex.PW-2/B. In the evening time, accused Ashu @ Dharmender came to PS and joined the investigation. IO had interrogated accused Ashu and thereafter, he was arrested by the IO vide Arrest memo, proved as Ex.PW- 8/A; his personal search was conducted vide memo, proved as Ex.PW-8/B and his disclosure statement was also recorded vide memo, proved as Ex.PW-8/C.
15.PW-9 SI Awadhesh Narayan has deposed that on 09.08.2021, at about 01:30 AM, he received DD no.5A, Ex.PW-4/B regarding stabbing on neck and firing and he alongwith Ct. Ravi Datt reached at the spot, i.e. near red light Pandav Negar public toilet. When they reached at the spot, few persons were found roaming on the spot as it was late night. He made inquiry from them regarding the said PCR call and came to know that SC No. 707/2021 Page 11 of 23 State v. Ashu injured was taken to hospital by PCR van who sustained injury on his neck. Thereafter, he left Ct. Ravi Datt on the spot and went to RML hospital, where injured Rahul Chhabra was found admitted in the hospital and his MLC was prepared. He made inquiry from the doctor and doctor opined the injured 'fit for statement'. He recorded the statement of injured Rahul Chhabra in the hospital, proved as Ex.PW-2/A; made his endorsement on the said statement and prepared rukka. The treatment of the injured was going on and he asked him to come to spot after taking complete treatment and IO left the hospital and went to the spot. He has further deposed that he made efforts to trace any empty cartridge at the spot but no cartridge was found on the spot. Crime team had also called at the spot and made efforts to trace the empty cartridge but no empty cartridge was found at the spot. He handed over rukka to Ct. Ravi Datt at about 07:30 AM for getting FIR registered. After receiving rukka, Ct. Ravi Datt went to PS. Thereafter, he called Ct. Ravi Datt and asked him to come back to the spot after handing over rukka to duty officer. After handing over rukka to duty officer, Ct. Ravi Datt visited the spot. He has further deposed that after some time, Ct. Rohit came to the spot alongwith copy of FIR and original rukka and handed over the same to him. In the meantime, complainant also reached the spot and he prepared site plan at his instance, proved as Ex.PW-2/B. They made efforts to trace the accused in the Pandav Nagar area. PW-9 has correctly identified the accused Ashu before the Court.
SC No. 707/2021 Page 12 of 23State v. Ashu 15.1. PW-9 has further deposed that on the same day, at about 06:00 pm, accused Ashu @ Dharmender alongwith his counsel came to PS and had joined the investigation. He interrogated the accused and during interrogation, accused disclosed his involvement in the present case alongwith his associate Dheer Singh. After thorough interrogation, accused Ashu was arrested vide arrest memo, proved as Ex.PW-8/A. His personal search was conducted vide personal search memo, proved as Ex.PW-8/B. His disclosure statement Ex.PW-8/C was also recorded. During interrogation, accused had not disclosed the complete address of his associate and about the weapon of offence. He has further deposed that on 10.08.2021, accused was produced before the Ld.MM and his one- day PC remand was obtained. Thereafter, accused led the police party near Satya Park near Janki Dass hospital, Naraina road, Delhi from where accused got recovered weapon of offence, i.e. knife from the bushes of Satya Park. He had prepared site plan of the recovery of weapon of offence, proved as Ex.PW-9/A. He had also prepared pointing out memo, proved as Ex.PW-9/B. He had also prepared the sketch of said recovered knife, proved as Ex.PW-9/C. He had prepared pullanda of recovered knife and sealed with the seal of RTNGR-II and taken the same into possession through seizure memo, proved as Ex.PW-9/D. He had also recorded the statement of HC Rajesh who was with him at the time of said recovery of weapon of offence. Thereafter, they went to PS and case property was deposited in the malkhana and accused was sent to lock up after giving food.
SC No. 707/2021 Page 13 of 23State v. Ashu 15.2. PW-9 has further deposed that on the next day, accused was taken out from the lock up and efforts were made to search the co-accused but no clue was found. Thereafter, the medical examination of accused got conducted and he was produced before the Court of Ld.MM and from there sent to J.C. Thereafter, complainant Rahul Chhabra was called and he was joined the investigation and he was taken to hospital for taking his blood sample. His blood sample was taken in the hospital by the doctor and same was handed over to him. He took the same into possession through seizure memo, proved as Ex.PW-9/E and same was deposited in the malkhana. Thereafter, blood sample of injured and recovered knife were sent to FSL for examination. Sincere efforts were made to trace the co-accused Dheer Singh and his NBWs were obtained and proceedings u/s 82 Cr.P.C. were initiated against him. After filing the charge-sheet, FSL result was obtained from the FSL, Rohini and same was filed in the Court by him through supplementary charge-sheet. This witness has correctly identified the knife as Ex.P.1 (earlier marked as Mark P.1), before the Court.
16.PW-10 ASI Rajesh Kumar has deposed that on 10.08.2021, he had joined the investigation alongwith SI Awadhesh Narayan. Accused Ashu @ Dharmender came to Tis Hazari Court after his medical examination. IO had obtained one day PC remand of the accused. Thereafter, they went to PS and from there, accused led them to Satya Park, Naraina Road, Delhi and pointed out towards the bushes and informed that he had hide the knife/weapon of offence and had taken out one knife from the bushes and SC No. 707/2021 Page 14 of 23 State v. Ashu handed over the same to IO. IO had prepared the pointing out memo, proved as Ex.PW-9/B. He has further deposed that IO prepared sketch of recovered knife, proved as Ex.PW-9/C and took the measurement of the same. The total length of the knife was 18 cms., length of its handle was 10.5 cms., length of its blade was 7.5 cms. Thereafter, IO seized the said knife vide seizure memo, proved as Ex.PW-9/D after sealing the same. IO had also prepared the site plan of recovery of knife, proved as Ex.PW- 9/A. This witness had also identified the recovered knife as Ex.P1 before the Court.
17.PW-11 Dr. Jyoti Nigam, Sr. Medical Officer, RML hospital, Delhi has deposed that on 09.08.2021, patient Rahul Chhabra was brought to the hospital by ASI Ram Kumar with alleged history of physical assault. The patient was initially examined by Dr. Gaurav Gaur and the MLC of the patient was prepared by him, proved as Ex.PW-3/A. On local examination, lacerated wound over left side neck 11 x 2 cms. was found. After local examination, the patient was given first-aid and thereafter referred to surgical emergency for further management.
18.PW-12 HC Rakesh has deposed that on 10.08.2021, one sealed pullanda of knife, sealed with the seal of RTNGA-II was deposited by IO/SI Awadhesh Narayan and he made the entry in register no. 19 at srl.no. 1303/21, proved as Ex. PW-12/B. He has further deposed that on 20.08.2021, one another sealed pullanda of blood sample, sealed with the seal of CMO DR. RML hospital was deposited by IO/SI Awadhesh Narayan and he made the entry in register no. 19 at srl.no. 1309/21, SC No. 707/2021 Page 15 of 23 State v. Ashu proved as Ex.PW-12/C. He has further deposed that on 25.08.2021, IO sent the aforesaid pullandas to the FSL, Rohini vide RC bearing no. 96/21/21, proved as Ex.PW-12/A after taking the same from the malkhana and he made the entry in register no. 21. After depositing the same, the IO had handed over the acknowledgment of FSL, Rohini, proved as Ex.PW- 12/DP to him.
19.Prosecution evidence was closed vide order dated 18.09.2024 on the submissions of Ld. Addl. P.P. for the State that all the prosecution witnesses have been examined.
Statement of accused u/s 313 Cr.P.C. :
20.Statement of accused Ashu u/s 313 Cr.P.C. was recorded before the Court on 15.10.2024, wherein all the incriminating material on record was put to him. It was submitted by the accused that he is innocent and has been falsely implicated in the present case just to solve these kinds of cases; nothing was recovered at his instance and recovery has been falsely planted upon him.
Defence Evidence :
21.The accused has submitted during his statement u/s 313 Cr.P.C. that he does not want to lead any evidence in his defence and therefore, DE stands closed on his behalf on 15.10.2024.
SC No. 707/2021 Page 16 of 23State v. Ashu Final arguments:
22.The Court has heard the final arguments as advanced by Mr. M.A.Khan, Ld. Addl. P.P. for the State as well as Sh. Gaurav Singhal, Ld. Counsel for accused and have gone through the entire material available on record.
Arguments addressed on behalf of the State:
23. It is argued by the Ld. Prosecutor that the prosecution has been able to prove its case since in the cross examination of the injured by the prosecution he has admitted that the accused was present at the spot at the time of incident and his associates committed the crime against the injured. He also admitted that after commission of the crime, the accused ran from the spot along with his associates. All these admissions/depositions point towards the guilt of the accused in committing the offence charged with. Hence, he be convicted for the said charge.
Arguments addressed on behalf of the Ld.defence Counsel:
24. It is argued by the Ld. Defence Counsel for accused Ashu that in the present case, there is CCTV footage however, the same never sent to the FSL so its authenticity is under challenge. It is further argued that in the CCTV footage which was played before the Court in the presence of the prosecution witness Rajender Sharma, only victim was seen present with the said witness along with some other public persons roaming at the spot, when the police arrived. The CCTV footage relied by the prosecution SC No. 707/2021 Page 17 of 23 State v. Ashu does not cover the alleged incident, hence it is nothing but sham evidence put forth by the prosecution just to put weightage to their story without any such corroboration. He has further argued that both the prime witnesses of the prosecution have turned hostile and hence their testimony cannot be the basis of conviction. Since the is no clinching evidence against the accused, he deserves acquittal.
Appreciation of law & evidence :
25.Before going into merits of the matter, it is pertinent to mention the relevant section 307 IPC, which is reproduced below:
"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."
26.Therefore, as per section 307 IPC, the Prosecution was required to prove two pre-requisites in the present matter i.e.
(a) the accused did the act/offence with intention or knowledge and
(b) under such circumstances that if the act caused death, he would be guilty of murder.
27.In order to prove the charge against the accused, the prosecution has examined the complainant/injured Sh. Rahul Chhabra as PW-2. The testimony of the injured is considered at a higher pedestal than any other witness and for the same, it is also well settled that ocular evidence is SC No. 707/2021 Page 18 of 23 State v. Ashu considered as the best form of evidence in a criminal trial, given that it is duly corroborated by other evidences and there is no reason to doubt it. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, in as much as, he sustains injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go Scot-free and would falsely implicate any other person.
28.Reliance is placed upon by this Court upon Judgment in the case of Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259], wherein it was held by the Hon'ble Supreme Court of India as under:
'Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built−in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness."
29.Reliance is also placed upon by this Court in the case reported as Jarnail Singh & others v. State of Punjab, (2009) 9 SCC 719, also it was held by the Hon'ble Supreme Court of India that testimony of an injured witness will have a special evidentiary status. It was held as under :
'.....the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not mwant to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.' SC No. 707/2021 Page 19 of 23 State v. Ashu
30.As per the testimony of complainant/PW-2 Sh. Rahul Chhabra, on the alleged night of incident, he was present at the spot and 4-5 persons came from his back side, caught hold of him by his neck from back and caused injury on his neck by sharp edged weapon. He could not see the face of the person who caused injury on his neck but proved his statement made to the IO as Ex.PW-2/A. He even failed to identify the weapon of offence i.e. the knife by which the alleged injury was caused. He even specifically failed to identify the accused as the assailant and reiterated that he could not see the assailant as he was assaulted from back side.
31.PW-2 was cross-examined by the prosecution since he turned hostile and he admitted to know the accused prior to date of incident and also that on the said date, accused Ashu met him at the spot and they had conversation. He even admitted that Ashu told him to convey to Bunty not to give statement against him in another case. However, he denied the suggestion of the prosecution that present accused Ashu extended threat to kill Bunty if he gives evidence against him in the Court. He failed to depose that accused Ashu was the one who caused stabbed injury on his neck by the knife and that he is deliberately concealing the same. Though he admitted that after the incident, accused Ashu ran away from the spot. During his cross-examination by defence, in answer to Court's question, PW-2 stated that accused was present at the spot with him till he was not injured. He even deposed that while he was talking to accused Ashu, somebody had hit him with knife from behind, which clearly means that someone else than accused Ashu had caused injury to the SC No. 707/2021 Page 20 of 23 State v. Ashu complainant/PW-2.
32.Even the other eye witness of the prosecution Sh. Rajender Sharma examined as PW-4 has totally hostile and stated to have reached the spot after the alleged incident, as he deposed that when he reached the spot, he saw complainant/PW-2 Sh. Rahul Chhabra was having injury on his neck.
33.There is no other witness of the prosecution to prove the offence with which the accused has been charged and as per the CCTV footage which was played in the Court computer during the testimony of PW-4, it has been observed that only complainant/injured and PW-4 are seen in the said footage, proved as Ex.P.2, alongwith two other public persons and the PCR has come to the spot taking the injured to the hospital.
34.Hence, there is neither ocular evidence or electronic evidence or even any scientific evidence to connect the present accused with the alleged offence.
35.Reliance has placed upon by the Court upon Judgment of the Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209, wherein it has held as follows:
"The time-tested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
36. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held SC No. 707/2021 Page 21 of 23 State v. Ashu as follows:
" The golden thread which runs through the web of administration of justice in criminal cases is that if two view 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 which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
37.It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
38.The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that SC No. 707/2021 Page 22 of 23 State v. Ashu which rests upon the prosecution'.
Conclusion/Findings :
39.Keeping in view the facts & circumstances as already discussed above, the Prosecution has miserably failed to prove its case beyond reasonable doubt against the present accused. Hence accused Ashu is acquitted of the Charge under section 307/34 IPC. Digitally signed by SHEFALI SHEFALI BARNALA BARNALA TANDON TANDON Date: 2024.10.22 16:49:53 +0530 ANNOUNCED IN THE (SHEFALI BARNALA TANDON) COURT ON: 22.10.2024 ASJ-05 (West), THC, Delhi.
It is certified that this Judgment contains 23 pages and each page bears my signatures. Digitally signed by SHEFALI SHEFALI BARNALA BARNALA TANDON TANDON Date: 2024.10.22 16:49:59 +0530 (SHEFALI BARNALA TANDON) ASJ-05 (West), THC, Delhi 22.10.2024 SC No. 707/2021 Page 23 of 23 State v. Ashu