Delhi District Court
State vs . Ajay & Another on 19 September, 2019
IN THE COURT OF SHRI SANJAY SHARMAI :
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
SC No. 561/2016
State Vs. Ajay & another
FIR No. 121/2012
PS Pandav Nagar
Under Section 302/34 IPC and
Section 25/27 Arms Act
State Versus 1. Ajay S/o Shri Nain Singh
R/o E21, Gali No. 9, Shashi Garden Delhi
2. Vijay S/o Shri Nain Singh
R/o E21, Gali No. 9, Shashi Garden Delhi
Date of institution : 31.7.2012
Date of reserving judgment : 02.9.2019
Date of judgment : 19.9.2019
JUDGMENT:
On 17.4.2012, DD No. 44B was recorded at PS Pandav Nagar on the telephonic message from Dr. Pratika Aggarwal of Max Balaji Hospital, Patparganj, Delhi, regarding admission of Sachin Bhati. SI Sudhir and Ct. Vinod reached at the hospital and received the MLC of said Sachin Bhati, who was having alleged history of being stabbed on the chest, thrice. The elder brother of the injured namely Vipin Bhati met the initial IO at the hospital and got his statement recorded, wherein he alleged that on the night of 16.4.2012, his cousin Inderjeet Bhati and neighbour Amit Rastogi had a quarrel with Vijay over urinating in front of the house of the latter. The dispute was got settled with the intervention of the elders. He further stated that on that day, i.e. SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 1 of 31 17.4.2012, at about 6/6.30 pm, injured Sachin started from the house for going to the market and he too proceeded from the house to meet his friend on his motorcycle. When he reached the corner of Gali No. 10, Shashi Garden, he saw Vijay and his younger brother Ajay quarrelling with Sachin Bhati. While he was parking his motorcycle, Vijay caught hold of his brother Sachin from behind and Ajay, saying that he would kill him today, took out a knife from his pocket and stabbed several times on the chest of Sachin Bhati and thereafter, they both fled away. He further stated that his brother fell down and he lifted him and brought him to Max Hospital and also informed the PCR at 100 number.
Subsequently, during the treatment, Sachin Bhati succumbed to his injuries and expired on the same day. On 19.4.2012, accused Ajay was arrested from ISBT Anand Vihar and his disclosure statement was recorded. The knife used in the incident was recovered at his instance and the clothes which he was wearing at the time of incident, were recovered from the house of his friend at Agra, where he had fled away after the incident.
On 24.4.2012, the second accused Vijay - a Head Constable in Delhi Police and posted in EOW Office, Mandir Marg, New Delhi, at the time of incident, was also arrested. On completion of investigation, chargesheet was filed against both the accused for the offences punishable under Section 302/34 IPC and Section 25/27 Arms Act.
2. Copies were supplied to the accused persons as required under Section 207 Cr. PC and case was committed to the Sessions Court. After hearing arguments, charge for the offence punishable under Section 302/34 IPC was framed against both the accused vide order dt. 23.8.2012.
SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 2 of 31 A separate charge for recovery of knife was also framed against accused Ajay, under Section 25/27 Arms Act.
3. At the trial, prosecution examined 23 witnesses in all.
PW1 was the real brother of the deceased and an alleged eye witness to the incident. He gave his complaint to the police and proved it as Ex.PW1/A . He had also identified the dead body of the deceased vide his statement Ex.PW1/B and received it vide memo Ex.PW1/C. He further identified the shirt and pant of the deceased as Ex.P1 and P2 respectively and hand them over to the IO.
PW2 Vinod Kumar was the uncle of the deceased and another alleged eyewitness to the incident.
PW3 Dr. PC Sahu had medically examined accused Ajay at LBS Hospital and proved his MLC as Ex.PW3/A. PW4 Dr. Pratika Agrawal from Max Balaji Hospital, had medically examined the deceased vide MLC Ex.PW4/A and had prepared his death summary Ex.PW4/B and opined the nature of injuries to be stab injuries and dangerous in nature.
PW5 Shri Amar Nath Singh - Alternate Nodal Officer proved the call records of mobile number 9990611130 in the name of Girish as Ex.PW5/A and PW5/B (colly). He further proved the call records of another mobile number 9911990678 in the name of accused Ajay as Ex.PW5/C and PW5/D (colly.). Both the call records were for the period 16.4.2012 to 18.4.2012.
PW6 Girish was the uncle of the deceased and the person who had made the PCR call regarding the incident.
PW7 Dr. Vinay Kumar - Specialist, Forensic Medicine proved the SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 3 of 31 postmortem report of the deceased as Ex.PW7/A and the subsequent opinion as Ex.PW7/B. PW8 HC Pramod Kumar was the Duty Officer and he proved the copy of FIR and his endorsement made on ruqqa as Ex.PW8/A and PW8/B respectively. He also proved DD Nos. 18A , 19A and 20A as Ex.PW8/C, PW8/D and PW8/E, respectively.
PW9 Shri Rakesh Soni - JTO, MTNL proved the call detail record of mobile numbers 9868241187 and 9013823877, both registered in the name of Nain Singh as Ex.PW9/A to PW9/D. He also proved Cell ID Chart as Ex.PW9/H as also the certificate under Section 65B of The Indian Evidence Act as Ex.PW9/F and PW9/G in respect of both the aforesaid numbers.
PW10 SI Mahesh Kumar was the Draughtsman and he proved the scaled site plan of the place of incident as Ex.PW10/A. PW11 ASI Jagat Singh proved the PCR Form as Ex.PW11/A. PW12 HC Sunil Kumar was the Incharge of PCR R66 and had received call from PW Girish Kumar stating that he was taking the injured to Max Balaji Hospital who was tabbed by neighbour Ajay. PW12 imparted the said information to the Control Room.
PW13 SI Sudhir Kumar was the initial IO who alongwith Ct. Vinod reached Max Balaji Hospital on receipt of DD No. 44B and had recorded statement of the complainant/brother of deceased namely Vipin Bhati vide Ex.PW1/A. PW13 prepared ruqqa Ex.PW13/A upon it and got the present case registered at the PS. He deposed that further investigation was assigned to Ins. Narender Chauhan and he remained associated with him during the proceedings. He proved the seizure memos of the blood SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 4 of 31 sample and concrete lifted from the spot, jeans pant and shirt of complainant and clothes of the deceased, as Ex.PW13/B to PW13/D respectively. He also proved the seizure memo of blood gauze of the deceased as Ex.PW13/E as also the seizure memo of the clothes of the deceased as Ex.PW13/F. PW13 further proved the arrest documents of both the accused and the sketch as well as seizure memo of the knife recovered at the instance of accused Ajay on 21.4.2012.
PW14 Sahab Ram was the father of the deceased and he identified the dead body vide his statement Ex.PW13/Q. PW15 ASI Suresh was a witness to the seizure of clothes of accused Ajay, got recovered by him from the house of his friend Priyesh at Taj Nagri, Agra (UP).
PW16 Ct. Damodar Singh was the DD Writer and he proved DD No. 44B and 45B regarding admission and death of the deceased in the hospital, as Ex.PW16/A and PW16/B, respectively.
PW17 Ct. Vikas was the photographer in Mobile Crime team and he proved the photographs of the spot as Ex.PW17/A to PW17/F and their corresponding negatives as Ex.PW17/G to PW17/L. PW18 SI Ahtesham Ali (Retired) was the Incharge of Mobile Crime Team and he proved the SOC report as Ex.PW18/A. PW19 Ct. Vinod Kumar got the present FIR registered on the instructions of SI Sudhir - PW13. (It is pertinent to mention here that the said witness was again examined as PW21 and was duly crossexamined by Ld. Defence Counsel).
PW20 SI Manish Bhati was assigned investigation of this case on 20.4.2012 and he alongwith ASI Suresh and Ct. Rajbir as well as accused SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 5 of 31 Ajay, who was in police custody, went to Taj Ganj, Taj Nagri, Agra from where accused Ajay got recovered his tshirt and jeans pant having blood stains on the left leg, which he was allegedly wearing at the time of incident. PW20 seized the said clothes vide memo Ex.PW20/A after sealing the clothes in a cloth pullanda and also prepared site plan of the said place vide Ex.PW20/B and also recorded supplementary disclosure statement of accused Ajay vide Ex.PW20/C. PW22 SI Sehdev Singh had reached LBS Hospital alongwith Ct. Ray Bahadur on receipt of DD No. 18A and 20A Ex.PW8/C and PW8/E respectively, which were regarding stab injury by knife and regarding quarrel respectively. He also collected the MLC of accused Ajay who was under treatment there and then went to Max Balaji Hospital where he handed over the MLC of accused Ajay to SI Sudhir. PW22 also met IO/Ins. Narender Kumar there, on whose instructions he moved an application Ex.PW22/A for preserving the dead body for postmortem at mortuary LBS Hospital.
PW23 Ins. Narender Singh was the main IO and he deposed about the investigation conducted by him after registration of the FIR and after death of deceased Sachin at Max Balaji Hospital. He proved the site plan as Ex.PW23/A and Form 25.35(1)(B) as Ex.PW23/X1, besides the other relevant documents as stated by PW13 above. He also proved the FSL Report as Ex.PW23/X3 and PW23/X4 as also the CDR and CAF of mobile number 9911990678 as mark PW23/Y. He also identified the case property in the Court.
4. Statement of both the accused were recorded under Section 313 Cr. PC and entire incriminating evidence was put and read over to SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 6 of 31 them who denied the same and pleaded innocence.
Accused Vijay took the defence that he had made a police complaint against the family of the deceased on which FIR No. 122/12 was registered at PS Pandav Nagar against Inderjeet Bhati, Amit & ors. He further claimed that at the time of alleged incident he was at his office at EOW, Mandir Marg, New Delhi, where he was posted as Head Constable and had left his office after 6.00 pm. He relied upon the call records of the mobile numbers 9868241187 and 9013823877 registered in the name of his father and being used by him, to show that he was nowhere present near to the place of incident at the relevant time.
Accused Ajay took a similar defence regarding registration of FIR No. 122/2012 at PS Pandav Nagar on the complaint made by his brother/coaccused Vijay against the family of the deceased. He further claimed that he was present at his house at the time of incident.
5. Both the accused led evidence in their defence and examined six witnesses in all.
DW1 Ins. Sanjay Kumar, DW2 HC Amit Rana and DW3 HC Bhupender were all working and posted at EOW Cell, New Delhi at the relevant time. They all deposed that on the day of incident, accused Vijay was on duty with them and remained in the office till 6.00 pm. DW4 ASI Akhilesh Kumar had reached Kukreja Hospital alongwith Ct. Ram Kumar on receipt of DD No. 19A, Ex.PW8/D regarding a quarrel. He deposed that he came to know there one person from Shashi Garden, having injury on his chest had come to the said hospital at about 6.206.25 pm and after 57 minutes, relatives including brother of said injured also came and they decided to take the said injured SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 7 of 31 to a better hospital. He identified shop of Raju Car Seat Cover belonging to one Tara Chand, in the photographs Ex.DW4/DA and PW4/DB which was of Kukreja Hospital.
DW5 Tara Chand was the owner of said Raju Car Seat Cover shop and was a known to the family of accused as well as the deceased. He stated that on 17.4.2012, he had seen complainant Vipin and deceased Sachin at Kukreja Hospital raising hue and cry and asking the hospital staff to admit Sachin in the hospital and thereafter, the relatives of Sachin took him to another hospital.
DW6 Manoj was having a stall of ironing infront of house of both the accused and he deposed that on the day of incident, at about 6.457 pm, he saw 57 persons entering the house of both accused by raising their voice and after about 23 minutes, accused Ajay came out and ran towards the side of jhuggies and he was bleeding from his left hand wrist and was holding his head from his right hand and thereafter, he saw those persons running after Ajay.
6. I have heard Shri Mukul Kumar - Ld. Addl. PP for the State, Shri Vikas Arora - Ld. Counsel for both the accused and have carefully gone through the records of the case.
7. The prosecution has examined two eyewitnesses of the incident and one witness who had reached the spot just after the incident and had made the PCR call. Hence, their testimony require appreciation and discussion .
8. PW6 Girish was the person who had made the call to the PCR. He deposed that on 17.4.2012, while he was going to his house from Gali No. 9 to Shashi Garden and had reached at Gali No. 10, he saw SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 8 of 31 a boy namely Sachin , his neighbour and known to him, lying in a pool of blood. He further deposed that public was saying that he was stabbed by knife and that his uncle and brother were taking him to Max Hospital. He further deposed that he informed the police at 100 number from his mobile phone No. 9990611130.
He was crossexamined at length and was found to have made material improvement from his statement recorded U/S 161 Cr. PC and was duly confronted with it. He could not recollect the correct time of his making the call to the police and deposed that he might have made the call between 5.00 pm and 6.00 pm. He also could not remember whether he stated in his statement U/S 161 Cr. PC Ex.PW6/A that the uncle and brother of Sachin were taking him to Max Hospital. He was duly confronted with his said statement where this fact was not recorded. He further deposed that he made the phone call after 10 minutes of reaching the spot and there were already 2025 persons present there when he reached the spot. He further deposed that when he reached the spot, Sachin was lying in a pool of blood in a vehicle and was being taken to the hospital but did not know who was the owner of the said vehicle or who was driving it. Later, he deposed that as per his memory, the uncle of Sachin was driving the vehicle while his brother was sitting on his back seat with Sachin. He also deposed that the vehicle was of white colour but could not remember its make or model.
PW6 further deposed in his crossexamination that he had also gone to Max Hospital alone on his motorcycle in the same evening, where Sachin had already been admitted but did not had any talk with anyone there nor could remember if he had made any phone call or received any SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 9 of 31 call there. He deposed that the police officials were present in the hospital but they did not meet him. He failed to remember the ward or floor of the hospital where Sachin was admitted.
9. The testimony of PW6 is totally contradictory to the testimony of PW12 HC Sunil Kumar of PCR and the Incharge of the PCR Van R66 which reached the spot on receiving the call. PW 12 had deposed that the call was received at 6.32 pm from one Girish Kumar and on the way to the spot, he made a phone call to the caller on his mobile phone on which he was told by the caller that Sachin had been stabbed by neighbour namely Ajay and that he is taking the injured to Max Hospital. The fact that PW6 denied having made any other call or having received any call after intimating the PCR about the incident, belies the version of PW12 and the information recorded in the PCR Form Ex.PW11/A.
10. The testimony of PW6 is further contrary to the testimony of PW1 on material aspects. It was deposed by PW1 in his cross examination that he had seen PW6 Girish while he was shifting Sachin into the car and was known to him and had asked him to call at 100 number. This fact was never deposed by PW6 that he made the call to the PCR on the asking of PW1. It was also deposed by PW1 that he had not told PW6 as to how Sachin had received injuries or who caused the injuries to him. If that is so, how Girish would have informed the PCR that Sachin had been stabbed by Ajay which is recorded in the PCR Form Ex.PW11/A in the column meant for 'report received from van' where it is recorded that on 17.4.2012, at 19:26:30 'caller Girish ne phone par batlaya ki Sachin S/o Shab Ram age 18/20 years R/o above ko Ajay jo padosi hai ne jhagre mein chaku mara hai jisko lekar Max Hospital me SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 10 of 31 lekar aaye hain jo pet mein chaku laga hai aur hosh mein hai' (Caller Girish informed on phone that Sachin has been stabbed with a knife by his neighbour Ajay and who has been brought to Max Hospital and who is conscious). This vital and important fact was never deposed by PW6. It is also to be noted that the incident took place at about 6.30 pm whereas the second information/report was dispatched by the PCR Van at 7.26 pm and therefore, there was sufficient time for manipulation. It is also worthwhile to note that in the first information given to the PCR by PW6 Girish , neither the name of the injured nor of the assailant was mentioned and it is simply recorded in the PCR Form Ex.PW11/A at 18:35:38 that 'Gali No. 9 ke paas Shashi Garden Mayur Vihar PhaseI ek admi ko chaku mar diya hai jisko hospital le gaye hain . Send police' (One person has been stabbed and has been taken to hospital). Thus, it is clear that when PW6 made the phone call to the PCR, he was neither aware about the name of the injured nor of the assailant, contrary to the deposition of PW1 who deposed that he had told him that Sachin had been stabbed.
11. It is also worth noting that PW6 deposed that he had seen the injured being taken in a white car and it was being driven by the uncle of the deceased while the brother of the deceased was sitting on the back. This fact is again contrary to the version of PW1 who deposed that the said car belonged to one of his neighbour Sanjeev who was driving it.
12. It is further noteworthy that PW23/IO in his cross examination deposed that during recording of the statement of Girish (PW6), he never mentioned about the presence of PWs Vipin or Vinod (PW1 and PW2) at the spot at the relevant time. PW6 also deposed that SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 11 of 31 he had gone to the hospital on his bike on the same evening where some relatives of the deceased were present but did not talk to anyone in the hospital. On the contrary, PW1 had deposed that he had not seen or met PW6 Girish either at the hospital or around his house during the next 34 days. Thus, the presence of PW6 at the spot becomes highly doubtful and no reliance can be placed on his testimony.
13. PW2 Vinod Kumar was examined as an eyewitness to the incident. He was the uncle of the deceased and hence, was a highly interested witness. He deposed that he was running a grocery shop and that on 17.4.2012, at about 6.30 pm, he had gone to purchase a recharge coupon for his mobile phone and when he reached at the corner of Gali No. 10, Shashi Garden, he saw that accused Vijay had caught Sachin and accused Ajay was stabbing him on his chest with a knife. He further deposed that Vipin (PW1) brother of Sachin also reached the spot. He also deposed that when he went towards the accused, both of them fled away and Sachin fell down on the floor who was lifted by him and they both took him to Max Hospital in a car.
14. It is relevant to note that though he was an eyewitness to the incident and had taken the injured to the hospital and also an interested witness but despite that his statement U/S 161 Cr. PC was recorded on 18.5.2012, i.e. after about one month of the incident. No explanation for this inordinate delay in recording of the statement of such an important eyewitness to the incident has come either from PW2 or from the IO/PW23. It was deposed by PW2 that the IO came to his house to record his statement whereas the IO/PW23 deposed that PW2 Vinod came alone to the PS on his own on 18.5.2012 and he recorded his statement. It was SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 12 of 31 also deposed by PW23 that he demanded evidence from him about his presence at the spot at the time of incident but none was given by him and he believed his statement after cross questioning and verification.
15. In State of UP Vs. Shri Krishan AIR 1971 SC 87 and Prem Narayan & anr. Vs. State of Madhya Pradesh (Appeal (Cri.) No. 1131 of 2000 decided on 29.11.2006), it was held that :
"The delay in recording the statement U/S 161 Cr. PC without proper explanation is fatal to the prosecution".
Thus, the possibility of this witness having been introduced subsequently to fill up the lacunae by the IO cannot be ruled out.
16. On merits, PW2 in his crossexamination deposed that he was having his kiryana shop at Mandawali near his house and located in a market place. He also deposed that the market near his shop have various other shops including that of electronic, mobile phones, food items etc which remain open from 10.00 am to 10.00 pm. He also deposed that he himself operates his shop and there is no one to look after it in his absence. However, he clarified that on 17.4.2012, since his wife was unwell, he had not opened his shop in the evening. He further deposed that on the said date, he was going on foot in Gali No. 10 to a shop to purchase recharge coupon which is in Gali No. 1. If the mobile shops were easily available near his shop as deposed by him, there was no occasion for him to travel such a distance from Mandawali to Shashi Garden on foot to purchase recharge coupon which are nowadays available at every corner. Thus, the reasoning given by this witness for going towards the place of incident does not appeal to the senses.
In his further crossexamination, PW2 deposed that he had watched SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 13 of 31 the incident for 24 minutes but by the time he reached to Sachin, the accused had fled away and that he saw the incident from a distance of about 78 steps. He also deposed that he and PW1 reached near Sachin almost simultaneously. This version of PW2 is also quite surprising. He deposed that he watched the incident for 24 minutes but never deposed that he made any hue and cry or exhorted the accused or rushed to stop them or save the victim. A close relative such as PW2, was expected to have acted more swiftly than to keep watching the deceased being stabbed by the assailants.
PW2 also made improvements from his statement U/S 161 Cr. PC when he deposed that he saw Ajay stabbing Sachin on his chest with a knife, which fact was not recorded in the said statement and was duly confronted with it. He was further confronted with his said statement where he had not stated that Sachin had fell down on the road and Vipin lifted him. He also admitted that he had not stated in his statement U/S 161 Cr. PC that he and Vipin had rushed the deceased to Max Hospital in a car.
It was further deposed by PW2 in his crossexamination that the clothes of PW1 Vipin got stained with blood and some blood also fell in the car. He also deposed that some blood fell on the spot and it spilled on the way from the spot to the car while they were carrying Sachin. Similarly, PW1 had also deposed that lot of blood had spilled on the road and it also came on the clothes of the two accused and also on his clothes. However, the witness from the Crime Team, i.e. PW17 who had taken the photographs of the spot and PW18 who was the Crime Team Incharge, deposed that only two drops of blood were found on the place of incident.
SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 14 of 31 PW18 in his crossexamination specifically deposed that he had inspected the entire area around the spot and even on the road but no blood was found anywhere except the two spots mentioned by him. Even the photograph proved by PW17 as Ex.PW17/A to PW17/F show only two drops of blood at the spot, thus belying the version of PW1 and PW6, as aforesaid.
If PW2 had lifted the deceased, there was every possibility of the blood of the deceased coming on his clothes as well. It was so deposed by him in his crossexamination that few blood stains came on his clothes. However, the IO/PW23 deposed that he had not seized the clothes of PW2 as they were not related to the investigation . He also deposed that he had verified if the clothes of PW2 were stained with blood or not but the said witness told him that he had not touched the injured and blood had not come on his clothes and therefore, there was no occasion for him to seize his clothes. There is a clear contradiction between the testimony of PW2 and PW23/IO regarding this material fact.
The contradictions and improvements in the testimony of PW2, as pointed out herein above, as well as the delay in recording of his statement U/S 161 Cr. PC without any explanation makes him an untrustworthy witness and no reliance can be placed on his testimony.
17. The main eyewitness cited by the prosecution was the real brother of the deceased namely PW1 Vipin. Needless to say that he was also a highly interested witness.
18. It was deposed by PW1 that on 16.4.2012, his cousin Inderjeet and his friend had a quarrel with accused Vijay on the issue of passing urine infront of the house of Vijay which was settled with the SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 15 of 31 intervention of the elders. He further deposed that on 17.4.2012, at about 66.15 pm, the deceased left the house for the market and after sometime he also left the house on his motorcycle to meet a friend. When he reached Gali No. 10, Shashi Garden he saw that at the corner of the gali, accused Vijay had caught the deceased from behind and accused Ajay was saying that he would kill him and took out a knife from his pocket and gave multiple stabs on the chest of the deceased, where after both the accused fled away from there while he was parking the motorcycle. He further deposed that the deceased fell down and was bleeding and in the meanwhile, his uncle Vinod (PW2) reached the spot and they both took the deceased to Max Balaji Hospital in the car of a neighbour. He also deposed that another neighbour Girish (PW6) informed the PCR which reached the hospital and recorded his statement vide Ex.PW1/A. On the next day, he identified the dead body of his brother vide memo Ex.PW1/B and received it vide memo Ex.PW1/C. On 18.4.2012, in the evening, he pointed out the place of incident to the police which also seized his blood stained clothes. He was crossexamined by the Ld. Addl. PP for the State wherein he deposed that the police might have lifted the blood from the spot on 17.4.2012 but denied that he had shown the place of occurrence to the police on 17.4.2012 and was duly confronted with his statement U/S 161 Cr. PC. He identified his clothes as seized by the police in the Court as also both the accused.
In his crossexamination, he deposed that the car in which the deceased was taken to the hospital belonged to his neighbour Sanjeev and was a white colour i10 car. This fact was also deposed by PW2 in his crossexamination who also deposed that Sanjeev was driving the said SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 16 of 31 car. However, the said car was never seized by the police nor any blood stains were lifted from it. More surprisingly, the said person Sanjeev whose car was allegedly used to shift the deceased to the hospital, was neither examined as a witness nor his statement was recorded U/S 161 Cr. PC to lend corroboration to the testimonies of PW1 and PW2 on a material aspect. Thus, a vital link evidence stands missing and the chain of events has been broken. In the absence of Sanjeev having been examined and his car being seized and searched for traces of blood of the deceased, despite PW1 having knowledge about his address, it cannot be accepted that the deceased was shifted in his car to the hospital.
PW1 deposed that while shifting the deceased, his blood came on his clothes. The clothes of the witness were sent for FSL examination which were found to be having human blood but it could not be ascertained that it was of the deceased. Hence, it cannot be said that the blood found on the clothes of PW1 was that of the deceased.
It was further deposed by PW1 in his crossexamination that he was using a mobile phone at the time of incident but did not provided its number and deposed that he was not using the same mobile and number at the time of his deposition. It was rightly argued by Ld. Counsel for the accused that he deliberately did not provided the said number to the IO as it would have disclosed his location at the time of incident.
The conduct of PW1 at the time of incident was also quite unnatural, as deposed by him. He deposed that he also proceeded from his house on his motorcycle, after sometime after the deceased had gone. However, he did not specify the time gap but it is quite natural that if he followed the same route as of the deceased, he would have caught him up, SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 17 of 31 being on the motorcycle since the deceased was on foot. He deposed that he saw the accused had caught hold of the deceased and heard accused Ajay threatening to kill the deceased but watched him being stabbed by Ajay. It must have taken sometime, maybe few seconds, after the accused had threatened the deceased and had taken out the knife and had stabbed him. PW1 was on a motorcycle and on seeing his real brother being in such a situation could have rushed to the accused on his bike or at least would have exhorted the accused and have raised a hue and cry but nothing as such was deposed by him. On the contrary, he deposed that after stabbing, the accused ran away and he parked his motorcycle. No normal person in such a circumstance, would first like to park his motorcycle then to reach his brother to help him when he was seeing him being stabbed and rather would have banged the accused with his motorcycle or at least would have just dropped it, without caring to park it. However, in his further crossexamination , PW1 deposed that his uncle Vinod reached the spot at the same moment when he reached there and at that time, accused Ajay and Vijay were running from the spot, thus, contradicting his earlier testimony when he deposed that he saw the accused stabbing his brother. Further more, as argued by Ld. Defence Counsel, in the entire investigation, there is no mention of the motorcycle of PW1 nor its location was shown in the site plan Ex.PW10/A . Thus, the conduct of PW2 was quite unnatural as is apparent from the discussion of his testimony.
It was further deposed by PW1 that the deceased was put in the car after about 1012 minutes of the incident. During this period, he made no attempt to call the police though, as deposed by him, he was having a SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 18 of 31 mobile phone and on the contrary, he asked PW6 to inform the PCR. What he did during this period of 1012 minutes is not known. This again reflects his unnatural conduct. PW6 in this regard deposed in his cross examination that he made the phone call after 10 minutes upon reaching the spot. Thus, the time and manner of informing the police is also doubtful.
19. Neither PW1 nor PW2 or PW6 deposed that they had informed the parents of the deceased. There is no other witness who has been examined by the prosecution who deposed this fact, yet the parents reached the hospital. PW14, father of the deceased deposed that he received the information about the incident from the daughter of his brother at about 06:30 pm. How the said daughter came to know came to know about it and that too, at 06:30 pm, is still not known. PW14 further deposed that he received another call while returning home that deceased has been admitted in the hospital, but could not remember as to who made the said call. Thus there is no clarity as to how the father of the deceased was informed about the incident.
20. PW1 also made improvements in his testimony from his statement recorded U/S 161 Cr. PC, Ex.PW1/A and was duly confronted with it. He deposed that his uncle Vinod (PW2) also came at the spot and that he and Vinod took Sachin to Max Balaji Hospital in the car of a neighbour and that his another neighbour Girish informed the police on 100 number. All these facts were not stated by him in Ex.PW1/A and thus, he made material improvements. In light of the above discussion, the presence of PW1 at the spot and his having seen the incident becomes highly doubtful.
SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 19 of 31
21. The above discussion shows that the three main witnesses of the prosecution out of which two claimed to be eyewitnesses, are not reliable witnesses and no credence can be given to their testimonies. Even their presence at the spot has become highly doubtful. Apart from that, there are various other lacunae and loop holes in the prosecution case which require mention and discussion.
22. According to the prosecution and the IO/PW23, he recorded the disclosure statement of accused Ajay. In the said disclosure statement Ex.PW13/J, there is absolutely no mention of the presence of coaccused Vijay and thus, is against the prosecution case. Similarly, accused Vijay since the inception had taken a plea that he was at his office at the time of incident from where he proceeded at 6.00 pm and that he was not present at the spot. He himself visited the PS and met the IO on 17.4.2012 when he was interrogated but was let off. He was subsequently arrested on 24.4.2012 when he was called at the PS. It reflects two things, as pointed out by Ld. Defence Counsel, that firstly, the FIR was not recorded on 17.4.2012 and secondly, his disclosure statement was not voluntary. These facts further reflect that that there was no evidence of his presence at the spot and accused Vijay was implicated subsequently, may be under pressure of the complainant side.
23. The clothes of accused Vijay were also seized by the IO. PW1 had deposed that blood of the deceased had come on his clothes as well but in the FSL examination Ex.PW23/X3, no blood could be detected on his shirt. Similarly, PW1 had also deposed that the blood of the deceased also came on the clothes of accused Ajay and as per the IO, the wearing clothes of Ajay, which he was allegedly wearing at the time SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 20 of 31 of incident and were allegedly recovered at his behest from Agra from the house of his friend, were also seized and subjected to forensic examination. However, as per Ex.PW23/X3, no blood was found on his Tshirt and the blood found on his jeans was opined to be dissimilar to the blood of the deceased in the DNA profiling. It is highly unlikely that if a person stabs another on the chest, the blood of the victim would come on the pant of the offender and the likelihood is that the blood would come on his shirt. On the contrary, the prosecution has claimed that the blood of the deceased came on the pant of accused Ajay but that too was not found to be of the deceased in the DNA profiling. Hence, the entire case of the prosecution becomes doubtful.
24. It is also worthwhile to mention that the clothes of accused Ajay which he was wearing at the time of incident, were allegedly recovered from the house of his friend namely Priyesh at Agra on his pointing out, which fact was proved by PW20 SI Manish Bhati. However, the said friend Priyesh who had also signed on the recovery memo of the said clothes was never examined as a witness nor was cited as a witness though he was a material witness for the prosecution. Moreover, the clothes so recovered were never proved to be that of accused Ajay. This recovery is based on the sole statement of accused Ajay. It is settled law that no inculpatory statement of an accused can be used against him. The IO nowhere deposed that he had tried to put on those clothes on accused Ajay to verify that they belonged to him. The said clothes were also not got identified from PW1 and PW2 in the court to be of accused Ajay as the same clothes which he was wearing at the time of incident. Hence, the recovery of clothes cannot be used against accused Ajay. It is also highly SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 21 of 31 improbable that a person would travel by public transport from Delhi to Agra with blood stained clothes without being noticed by anyone including police officials of either Delhi or UP.
25. It has been admitted by the IO/PW23 in his cross examination that the exact time of the incident could not be confirmed during investigation. He deposed that it occurred between 6.006.30 pm. It was also deposed by PW1 and PW2 in their crossexamination that the incident took place on the corner of Gali No. 10 and infront of a confectionery store namely Rajeev Namkeen wala and opposite Mahalaxmi Jewellery Shop. They both also deposed that the market remain open in the area upto 910 pm. PW2 deposed that 56 persons gathered at the spot at the time of incident. Similarly, PW6 also deposed that 2025 persons were present when he reached the spot. If that is so, the incident must have been witnessed by the nearby shopkeepers and the other public persons but no investigation was done to ascertain if any of the shopkeeper or other public person had seen the incident nor statement of any of the said shopkeeper/public persons was recorded to lend independent corroboration.
26. The medical evidence on record is also not satisfactory. The alleged eyewitnesses PW1 and PW2 had deposed that the accused had stabbed the deceased on his chest. As per the prosecution version there were three stab injuries on the chest of the deceased. PW7 who had conducted the postmortem upon the deceased also described three incised wounds, one on the left side and two on the right side of the chest but apart from that, he also deposed that there was an incised stab wound of 1.8 X .8 cm and 4 cm deep over the left buttock of the deceased. This last SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 22 of 31 injury remains totally unexplained. It is not the case of any of the eye witness that the deceased was also stabbed on his buttock .
27. Furthermore, PW7 also observed various abrasions on the right elbow, right eye lower lid, lateral and right eyebrow and over bridge of the nose alongwith a lacerated wound over lateral end of left eyebrow. He also observed multiple abrasions spreading upto 11 X 4 cm over the left side of lower back and another abrasion of 3 X .8 cm over the back left scapular region. In the crossexamination, PW7 deposed that the abrasions were possible by friction against rough surface and hard object while lacerated wounds were possible by blunt force impact caused by hard object. It is nobody's case that the deceased was dragged on the road for any reason or even for being taken to the hospital and up to the car, resulting in abrasions as aforesaid. It is also not the case of the prosecution that the deceased was given blows either with fists or any other hard object resulting in abrasions on his elbow and the area around his eyes. Thus, the injuries on the person of the deceased does not confirm to the manner in which PW1 and PW2 have deposed about the incident.
28. PW7 in his crossexamination admitted that the injuries as shown in the postmortem report, were possible with the alleged weapon of offence or any other similar weapon/instrument. Thus, there was no conclusive finding that the fatal injuries were caused by the weapon which was allegedly recovered at the behest of accused Ajay.
29. Another glaring lapse in the prosecution case is that it has not been proved on record that after registration of the FIR, a copy thereof was sent to the Ilaqa MM. Though in the last line of the FIR, it is SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 23 of 31 mentioned that a copy of the FIR is being sent to the senior officers and Ilaqa Magistrate through Special Messenger Ct. Sandeep but the said constable was neither cited nor examined as a witness. Further more, column No. 15 of the FIR meant for recording the date and time of dispatch to Court is lying blank which gives an apprehension to the fact that the FIR was antetimed.
30. The importance of recording the FIR and the requirement of dispatching the copy thereof to the area Magistrate within 24 hours with the consequences fraught with danger was highlighted by the Hon'ble Apex Court in Meharaj Singh Vs. State of UP 1994 SCC (Cri) 1391. It was observed by the Hon'ble Apex Court as under :
"One of the checks is a receipt of the copy of the FIR, called a special report in the murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless of course the prosecution can offer a satisfactory explanation of the delay in dispatching or receipt of the copy of FIR by the local Magistrate".
The said judgment was relied upon by the Hon'ble Supreme Court in Sudarshan Vs. State of Maharashtra (2014) 12 SCC 312. In the instance case, there is no evidence that the copy of FIR was dispatched at all to the ilaqa Magistrate, thus, giving rise to grave suspicion that the FIR was antetimed.
31. It is the case of the prosecution itself that accused Ajay had also sustained injuries on the same day and almost at the same time when the incident took place. It is the defence raised by Ajay that on that day, at about 6.457.00 pm, 57 persons entered his house and attacked upon him as a result of which he sustained injury on his left hand and had fled SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 24 of 31 away. Those persons then chased him. This fact was deposed by DW6.
32. It was also deposed by PW22 that on 17.4.2012, he received DD No. 18A and 20A Ex.PW8/C and PW8/E regarding stab injury by knife in a quarrel. He accordingly reached LBS Hospital with Ct. Rai Bahadur and obtained the MLC of accused Ajay whom he identified in the Court. He further deposed that Ajay was under treatment at that time. However, in the meanwhile, he came to know that another injured was admitted at Max Hospital and therefore, he went there and handed over the MLC of Ajay to SI Sudhir. In the crossexamination he denied having recorded any statement of Ajay and further deposed that he could not make any inquiry from him.
33. The MLC of accused Ajay is also on record which mentions alleged history of assault and also mentions an incised wound on the left wrist joint measuring 1 cm X 0.2 cm and a lacerated wound at the mid perital region of 1 cm X 0.2 cm. No investigation was conducted regarding the said injuries on the persons of the accused and they remain unexplained. In light of the above, the defence raised by the accused and as put to PW22 assumes importance that on that day at about 7.00 pm 57 persons including Amit, Inderjeet Bhati, Sanjeev and others barged into his house and started beating him and attacked him with knife as a result of which he sustained the said injuries.
34. The accused also examined DW6 Manoj, a person who used to iron clothes infront of his house, who deposed the said fact. He was crossexamined by Ld. Addl. PP for the State but nothing came out in his crossexamination which could doubt his credence. The deposition of PW22 and the fact that accused Ajay sustained injury which remained SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 25 of 31 unexplained and was admitted in the hospital at about 7.35 pm on 17.4.2012 itself (as per the MLC Ex.PW3/A) further belies the version of PW1, PW2 and PW6 that they had seen the said accused and Vijay running away after the incident because they had not mentioned about any injury which Ajay had sustained during the incident.
35. Accused Vijay had taken plea of alibi and according to him, he was posted at EOW Cell, Mandir Marg, New Delhi, as on the date of incident. He further claimed that he was present in the Office till 6.00 pm. This fact was verified and also deposed by DW1 Ins. Sanjay Kumar Incharge of RTI Cell, EOW, DW2 HC Amit Rana also posted in the same Branch and DW3 HC Bhupender also posted in the RTI Branch of EOW Cell. They all deposed that accused Vijay was present in the office on 17.4.2012 and had left after 6.00 pm. Though no attendance record was produced by any of the said witnesses but their testimony regarding the presence of the accused in the office could not be shattered. Even the IO of this case PW23 admitted in his crossexamination that he had verified that accused Vijay was at EOW Mandir Marg, at around 6.00 pm, upon making inquiries from HC Bhupender, Ct. Rajnish, HC Amit and Ins. Sanjay but had not recorded their statements. He further admitted that he had not collected the duty chart of the accused and deposed that since he had inquired the related persons who were on duty, therefore, he had not collected the said record. It is, thus, confirmed that accused Vijay was on duty at his Office at EOW Cell on the day of incident and remained there till about 6.00 pm.
36. PW9 Shri Rakesh Soni of MTNL proved the call detail records of mobile No. 9868241187 and 9013823877, both registered in SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 26 of 31 the name of Shri Nain Singh, father of accused Vijay and were being used by the said accused. He also proved the location chart as Ex.PW9/H for the said mobile numbers. As per the said chart, the location of the mobile number 9013823877 of accused Vijay at 6.12 pm was at ITO, at 6.16 pm it was at Vikas Marg and at 6.32 pm it was at Mayur ViharI. At 6.39 pm, it was at Mayur ViharII and at 6.43 pm, it was at Ganesh Nagar while at 7.04 pm, it was at Mayur ViharII. Similarly, the location of the other mobile number 9868241187 was at Vikas Marg at 6.16 pm and at Mayur Vihar at 6.28 pm while at 6.48 pm it was at Mayur ViharII which continued upto 6.48 pm. The incident took place at the corner of Gali No. 10 at Shashi Garden and the approximate time of incident which is gathered from the ruqqa and MLC of the deceased is about 6.15 pm. The said location chart shows that at that time, accused Vijay was at Vikas Marg and it is impossible for any person to reach Shashi Garden which is near Mayur ViharI even by 6.30 pm, considering the peak traffic on the said road at that time. Hence, the plea of alibi raised by accused Vijay is reasonable and has to be accepted.
37. It is also the case of the accused, as submitted by the Ld. Counsel, that the deceased was assaulted by someone else and he was first taken to nearby Kukreja Hospital but this fact was concealed by the IO while filing the charge sheet. In order to prove this fact, accused examined DW4 ASI Akhilesh Kumar who was then posted at PS Pandav Nagar and had received DD No. 19A at about 6.40 pm. He deposed that he alongwith Ct. Ram Kumar reached at Kukreja Hospital at about 6.45 pm where at the reception he was informed that one person having injury on his chest from Shashi Garden had come to the hospital at about 6.20 SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 27 of 31 6.25 pm. He further deposed that the receptionist further informed that after 57 minutes, the relatives including brother of the injured followed and started quarrelling with the hospital staff as it was not equipped to tackle such situation and then decided to take him to some other hospital. He further deposed that he had not recorded the statement of the receptionist. He deposed that the injured had already left the hospital before he reached there. He also deposed that there is a shop of Raju Car Seat Cover run by Shri Tara Chand (DW5) near the Hospital. There was no material crossexamination of this witness. Thus, it has been proved by the accused that the deceased was first taken to Kukreja Hospital and not directly to Max Hospital as per the prosecution case. No reason appears for concealing this fact since small hospitals are seldom equipped to deal with such grievous injuries and also since they are reluctant to admit police cases.
38. DW5 Shri Tara Chand, an employee of the Raju Car Seat Cover Shop identified his shop in the photographs Ex.DW4/DA and DB . He deposed that he knew both the accused as also the deceased and his brother Vipin since he reside in the same area where they reside. He further deposed that on 17.4.2012, he was present at his shop and at about 6.15 pm he saw the deceased having injury on the front side of his chest going towards Kukreja Hospital and after 57 minutes, 1012 persons entered the hospital and he also went there out of curiosity where he saw Sachin sitting on a chair while his brother Vipin was repeatedly asking him as to what happened and who caused the injury but Sachin was not in a position to speak. He also deposed that the other persons were raising a hue and cry and asking the hospital staff to admit Sachin but they were SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 28 of 31 refusing saying that they were not well equipped. He further deposed that thereafter, those persons took Sachin in a black colour Maruti Dzire car to another hospital. In the crossexamination, he provided the details and reasons of knowing the accused and the deceased. Again , his truthfulness could not be challenged in the crossexamination by Ld. Addl. PP. The testimony of this witness clearly make the entire case of the prosecution highly doubtful.
39. It is needless to say that the defence witnesses are to be given same treatment as the prosecution witnesses. Reference can be made to the judgment in Dudh Nath Pandey Vs. State of UP AIR 1981 911. Hence, once the defence witnesses are found to be trustworthy and reliable, their evidence can be safely accepted, as in the instant case.
40. Lastly, the prosecution has relied upon the recovery of the weapon of offence, i.e. knife, at the pointing out of accused Ajay from an open drain on 21.4.2012, i.e. after about four days of the incident. It was alleged to have been recovered from a drain adjoining the wall of Sanjay Jheel. The said knife was also sent for FSL examination but as per the report Ex.PW23/X3, no DNA profile could be generated from the said knife, probably due to degradation of the DNA. Hence, it cannot be said that the said knife was used in the incident. Apart from that, the recovery of knife is also doubtful as it was affected from an open place. It was admitted by the IO/PW23 that the place of recovery was a public place and there was lot of public movements and it was also accessible to the public. Such a recovery cannot be used against the accused under Section 27 of the Arms Act until and unless it is shown that the place where the knife was hidden was within the exclusive knowledge of the accused and SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 29 of 31 was not visible and accessible to the general public.
41. In State of Himachal Pradesh Vs. Jeet Singh (1999) 4 SCC 370, the Hon'ble Apex Court held that :
"What is important is not whether the place was accessible to others but whether the object was ordinarily visible to others".
It was observed that if the object was hidden within the special knowledge of the accused and which was not accessible and visible to others then the recovery of that object is admissible against the accused under Section 27 of The Indian Evidence Act.
42. Thus, in light of the above discussion it can be safely said that the accused have created reasonable doubt in the prosecution case. In Anand Ramchandra Chougule Vs. Sidarai Laxman Chougala & ors. 2019 SCC online SC 974, relied upon by the Ld. Defence Counsel, the Hon'ble Apex Court observed as under :
"The burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence. An accused is not required to establish or prove his defence beyond all reasonable doubt, unlike the prosecution. If the accused takes the defence, which is not improbable and appears likely, there is material support in such defence, the accused is not required to prove anything further. The benefit of doubt must follow unless the prosecution is able to prove its case beyond all reasonable doubt."
43. In view of the above discussion and the legal position , there is no hesitation to hold that the prosecution has not been able to prove its case against both the accused beyond reasonable doubt. The defence taken by the accused is not only reasonable but also probable. Hence, both the SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 30 of 31 accused namely Ajay and Vijay are hereby acquitted of the charges framed against them under Section 302/34 IPC. Accused Ajay is also acquitted of the charge framed against him under Section 25/27 Arms Act. They are set at liberty.
File be consigned to Record Room. Digitally signed by SANJAY SANJAY ANNOUNCED IN OPEN COURT SHARMA SHARMA Location: Delhi Date: 2019.09.19 ON 19th day of September 2019 15:40:33 +0530 (SANJAY SHARMAI) Addl. Sessions Judge05 (Shahdara) Karkardooma Courts, Delhi SC No. 561/2016 FIR No.121/2012 State Vs. Ajay etc. PS Pandav Nagar 31 of 31