Delhi District Court
State vs Naushad Etc on 22 November, 2024
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 44527/2015
CNR No. DLNE01-000158-2012
FIR No. 124/2012
PS Jyoti Nagar
U/s 302/307 R/w section 34 of IPC, 1860.
STATE VERSUS NAUSHAD & ORS.
Date of Committal : 01.08.2012
Date of Arguments : 08.11.2024
Date of Judgment : 22.11.2024
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 4
3. Prosecution Evidence 6
4. Admitted Documents & Plea of the Accused 18
Person
5. Submissions made on behalf of the State 18
6. Submissions made on behalf of the Accused 20
Person
7. Relevant Law & the Case Laws 23
8. Appreciation of Evidence 30
9. Conclusion & Findings 35
Digitally signed by
ATUL ATUL AHLAWAT
AHLAWAT Date: 2024.11.22
11:26:20 +0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/22.11.2024
CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 1/37
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 44527/2015
CNR No. DLNE01-000158-2012
FIR No. 124/2012
PS Jyoti Nagar
U/s 302/307 R/w section 34 of IPC, 1860.
Brief Details of the Case & Memo of Parties
STATE VERSUS NAUSHAD & ORS.
Date of Committal : 01.08.2012
Date of Arguments : 08.11.2024
Date of Judgment : 22.11.2024
Brief details of the case
A) Case FIR No. : 124/2012
B) Charges framed under section : 302 R/w section 34 of
IPC, 1860 against all
the accused persons.
C) Name of the complainant/Informant : SI Krishan Pal Singh
CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 2/37
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.11.22
11:26:27
D) Name of the accused persons : (1) Naushad
S/o Yunish
R/o 1393, Tulshi
Niketan, Sahibabad,
Ghaziabad, UP.
(Proceedings qua him
stood abated vide
order dated
05.03.2024).
(2) Asif
S/o Late Asgar Ali
R/o Kaccha Arthala,
Mohan Nagar,
Ghaziabad, UP
(Proceedings
qua him stood abated
vide order dated
16.10.2015).
(3) Mohd. Hussain
@ Moni
S/o Late Asgar Ali
R/o Kaccha Arthala,
Mohan Nagar,
Ghaziabad, UP and
also at,
H. No. 13, Akash
Vikas Colony,
Bullandshahr Road,
Hapur, UP.
E) Plea of the accused persons : Not guilty
CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 3/37
Digitally signed
by ATUL
AHLAWAT
ATUL
AHLAWAT Date:
2024.11.22
11:26:34
+0530
F) Final Order : Acquittal
G) Date of Order : 22.11.2024
JUDGMENT
(Pronounced on the 22nd day of November, 2024) Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 26.04.2012, when DD no. 79B was registered at PS Jyoti Nagar at 11.12 PM, wherein it was recorded that " Harnam Palace, Gokulpuri Gol Chakkar ke pas Maruti Showroom ke saamne ek aadmi ko chaku se mara hai jo hosh me hai" . The said call was made from mobile no. 9278404390 and same was marked to SI Krishan Pal Singh for further action.
2. The Inquiry Officer SI Krishan Pal Singh reached the spot alongwith Ct. Ajay Malik and found that since there was a wedding function taking place at Harnam Singh Palace, there were lot of public persons present on the spot. It came to the knowledge of the IO that the victim/injured was already shifted to GTB Hospital by the officials of the PCR van. There were no eye witnesses found on the spot and since it was raining at that time, no blood was found lying scattered around the spot.
CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 4/37 Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.11.22 11:26:39 +0530
3. Thereafter, the IO reached GTB Hospital and obtained the MLC no. A1809/12, Ex. PW26/A of an unknown male, aged about 25 years and in the said MLC the concerned doctor had opined the injured to be "unfit for statement". Furthermore, as per the said MLC, the injured had received a sharp deep injury on the right hand side of his abdomen and a deep wound above his left elbow, with a sharp edged weapon. In the hospital as well, no ocular witnesses were found.
4. Upon the basis of the MLC, the committing of an offence punishable u/s 307 IPC, 1860 was found out and the present case FIR was registered at PS Jyoti Nagar on 27.04.2012. During the investigation, the injured/victim Mohd. Rizwan had expired in GTB Hospital during the treatment. Thereafter, section 302 IPC, 1860 was added in the present case. Thereafter, the eye witness namely Ishan @ Munna S/o Yasin came to the PS and his statement u/s 161 Cr.PC was recorded by the IO. After completing the investigation, IO filed the chargesheet before the court of Ld. Metropolitan Magistrate Court u/s 302/307/34 IPC, 1860 against the accused persons.
5. After compliance of section 207/208 Cr.P.C, the case was committed by the Court of Ld. MM before this court on 01.08.2012. Thereafter, the charges were framed by my Ld. Predecessor on 17.08.2012 u/s 302 r/w section 34 of Indian Penal Code, 1860 against accused persons. The accused persons pleaded not guilty and they had claimed trial.
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2024.11.22 11:26:47 +0530
6. During the trial, accused Asif S/o Late Asgar Ali had expired and vide order dated 16.10.2015, passed by the Ld. Predecessor of this Court, proceedings qua him stood abated.
7. During the trial, accused Naushad S/o Yunish had also expired and vide order dated 05.03.2024, passed by the Ld. Predecessor of this Court, proceedings qua him also stood abated.
Prosecution Evidence:
8. To prove its case, the prosecution has examined 26 (Twenty Six) witnesses and out of the said witnesses, there are 7 public witnesses, 16 formal witnesses, 1 medical witness and 2 Investigating Officers:
9. Public Witnesses:-
(9.1.1) PW-1 is Master Nisaruddin @ Shahrukh (child witness) and he is the ocular witness as per the case of the prosecution. His testimony was recorded without oath, since he was less than 12 years at the time of recording of his testimony. He had deposed that his family comprised of his mother, a brother and a sister, since his father had expired some 5 to 6 months ago. He categorically deposed that he did not knew any person by the name of Rizwan or that the said person was married to one Tarannum.
(9.1.2) PW-1 Master Nisaruddin @ Shahrukh had further deposed CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 6/37 Digitally signed by ATUL AHLAWAT ATUL Date: AHLAWAT 2024.11.22 11:26:54 +0530 that he never lived or resided in the house of the deceased Rizwan or that the wife of the deceased had kept him in their house or that the deceased and his wife used to treat him like their own child. He further categorically deposed that he had not witnessed the alleged incident. Furthermore, he never knew accused Naushad or the fact that accused Naushad was a friend of the deceased. He further categorically deposed that accused Naushad never asked him to join the pick pocketing activities. He further deposed that he did not knew co-accused Mohd. Hussain @ Moni and Asif. He categorically deposed that he did not witness any incident, wherein accused Asif (since deceased) had caused knife injury to the deceased on his abdomen or that accused Asif had caused knife blow injury on the face of the deceased. He further deposed that he had never joined the investigation of the present case and since he is not the ocular witness, he could not identify the accused persons.
(9.1.3) PW-1 Master Nisaruddin @ Shahrukh was declared hostile and at the request of Ld. Addl. PP for the State, he was cross examined at length by Ld. Addl. PP for the State, however, nothing material came out in his cross examination.
(9.2.1) PW-2 is Mosheen and he is the ocular witness as per the case of the prosecution. He had deposed that he was carrying his trade as the seller of cigarette etc., near the liquor vend situated in Harsh Vihar, Delhi. He had deposed that his younger brother Ishan @ Munna was working in the cloth ironing business. He had feigned his ignorance regarding the alleged incident in question. He had categorically deposed CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 7/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:26:59 +0530 that he had not witnessed any incident on 26.04.2012.
(9.2.2) PW-2 Mosheen was declared hostile and at the request of Ld. Addl. PP for the State, he was cross examined at length by Ld. Addl. PP for the State, however, nothing material came out in his cross examination.
(9.3.1) PW-3 is Juber Ahmed and he is the ocular witness as per the case of the prosecution. He had deposed that he had one brother and two sisters and his father was a truck driver by profession. He had categorically deposed that he did not knew the deceased and had volunteered that he had once travelled in an auto rickshaw belonging to the deceased, however, he could not say whether the said rickshaw was being driven by the deceased or someone else. He further deposed that he did not knew any boy by the name of Shahrukh and the accused persons were also not known to him.
(9.3.2) PW-3 Juber Ahmed was declared hostile and at the request of Ld. Addl. PP for the State, he was cross examined at length by Ld. Addl. PP for the State, however, nothing material came out in his cross examination.
(9.4.1) PW-4 is Sachin and as per the prosecution story, the call on 100 number was made by him. He had deposed that he was a student and on 26.04.2012, he was present in banquet hall namely Harnam Palace to attend the wedding of his friend Mukul. At 11.11 PM, when he came out CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 8/37 Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.11.22
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of the said banquet hall, he saw that public persons had gathered outside the said hall and he saw one person was lying on the road and the said person was having a knife injury on his abdomen and the knife was stuck in the body of the injured person. Thereafter, he made the call to the police on 100 number and later his statement was recorded by the police officials.
(9.5.1) PW-5 is Ishan @ Munna and he is the ocular witness as per the case of the prosecution. He had deposed that he was in the profession of steam ironing the clothes. He further deposed that he has never worked as a TSR Driver and never drove a TSR having registration no. UP14-CT-7663. He had categorically deposed that he never knew accused Naushad and he never received any call on his mobile phone from the said accused Naushad.
(9.5.2) PW-5 Ishan @ Munna further deposed that he had never received any information on his mobile phone that his brother Mosheen was standing outside Harnam Palace with the deceased. He further categorically deposed that he had not reached the said spot and had not witnessed any such incident.
(9.5.3) PW-5 Ishan @ Munna was declared hostile and at the request of Ld. Addl. PP for the State, he was cross examined at length by Ld. Addl. PP for the State, however, nothing material came out in his cross examination. He was duly confronted with his statement recorded CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 9/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:27:10 +0530 u/s 164 Cr.PC, Ex. PW4/B, however, he had categorically deposed that he was taken before the Ld. MM due to the pressure exerted by the police officials. He had also categorically deposed that he was afraid that the police officials would beat him up, if he did not toe to the line and did not give his statement before the Ld. MM. He further categorically deposed during his cross examination conducted by Ld. Defense Counsel that he was given threats by the police that if he did not depose on their lines, then they would falsely implicate him in a murder case. Furthermore, prior to his statement being recorded before the Ld. MM, he was given beatings by the police officials and was harassed and pressurized. His signatures were obtained on certain blank papers by the police officials and he had never witnessed the alleged incident.
(9.6.1) PW-6 is Tarannum and she is the wife of the deceased. She is not the ocular witness as per the case of the prosecution. She had deposed that her husband deceased Mohd. Rizwan was an auto rickshaw driver by profession and he used to drive the TSR in the area of Bhopura to Ghaziabad. She had correctly identified the accused persons who were present in Court, including accused Mohd. Hussain @ Moni. She had further deposed that all the 3 accused persons including accused Naushad and Asif, who had later expired during the trial, were also working as auto rickshaw drivers and they were in friendly relations with her late husband Mohd. Rizwan. The accused persons used to frequently visit their house and all the 3 accused persons and her late husband used to adjust their professional jobs by interchanging duties on auto rickshaws, which they used to ply.
CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 10/37
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.11.22
11:27:16
+0530
(9.6.2) PW-6 Tarannum had further deposed that 4 days prior to the
death of her husband, her husband Mohd. Rizwan had informed her that he had entered into a quarrel with all the 3 accused persons on an issue of a passenger to be ferried in the auto. Thereafter, on the next day in the evening hours, her husband had received a call from accused Naushad and the said call was received by her husband while the phone was kept on speaker mode. The entire conversation was heard by her and in the said call accused Naushad had threatened her husband that he could do whatever he wanted to do and accused Naushad would do what he had to do.
(9.6.3) PW-6 Tarannum had further deposed that around 2 ½ months prior to the death of her husband, her husband had brought Master Shahurkh to their house and she was told by Master Shahrukh that he was not happy and settled in his family and thereafter, her husband offered him to stay with them and to drive the auto rickshaw for them, as and when it was required. Thereafter, Master Shahrukh started residing with him. She further deposed that she did not knew Mosheen personally, however, she knew that he was the brother of one Munna. She further deposed that about 15 days prior to the death of her husband she received the phone call from Mosheen and the said phone call was received by her, since her husband had gone to his parents house and she was being told that Mosheen had some work for her husband. At that time, said Mosheen was present in the auto which was parked outside her house and when she went outside to meet him, he introduced himself as CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 11/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:27:22 +0530 brother of Munna. She further deposed that Juber had also been working with her husband for around one year prior to his death and the said Juber was also in the auto driving profession and he used to reside with her and her husband during that one year period.
(9.6.4) PW-6 Tarannum had further deposed that around 2-3 days prior to the death of her husband, accused Naushad came to their house in the morning of 23.04.2012 and asked her husband to forget their past quarrels and her husband believed on the assurances given by accused Naushad. She had taken some photographs containing date and time stamp to establish that on the said day Master Shahrukh and her husband was together and to show that all the accused persons were well known to her late husband. On 02.07.2013, PW6 Tarannum produced certain photographs which are marked as Mark X-1 to X-4, in which her late husband could be seen with PW Master Shahrukh and she and her sister- in-law could also be seen in the said photograph. She had further deposed that her late husband had also told her that accused Naushad had threatened to kill him.
(9.6.5) PW-6 Tarannum had further deposed during her cross examination conducted by Ld. Defense Counsel that her late husband Rizwan was not a pick-pocketer. She was duly confronted with her earlier statement recorded u/s 161 Cr.PC dated 27.04.2012, Ex. PW6/DA, wherein, it was so recorded. The entire deposition of hers was confronted from her earlier statement Ex. PW6/DA, since the same was not recorded in the earlier statement and her entire deposition was an CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 12/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:27:27 +0530 improvement from her earlier statements.
(9.7.1) PW-23 is Zinat and she is the mother of accused Naushad. She had deposed that TSR No. UP14CT-1162 was registered in the name of her son accused Naushad, however, later on it was transferred in her name through power of attorney. The said TSR, Ex. PW23/1 was taken by her on superdari vide superdarinama, Ex. PW23/A.
10. Formal Witnesses:-
(10.1.1) The prosecution has sought to prove the recording of the statement of eye witness Ishaan @ Munna u/s 164 Cr.PC through the testimony of PW7 Sh. Jitender Singh, the then Ld. Metropolitan Magistrate, KKD Courts. The statement of Ishaan @ Munna was brought on record as Ex. PW4/B and the said statement was recorded by PW7, upon the application moved by the IO, vide Ex. PW7/B. During his cross examination conducted by Ld. Defense Counsel, PW7 had denied the suggestion that the statement Ex. PW4/B was recorded after he was put under pressure by the police officials or that PW7 had not verified from the witness as to whether he was tutored or not or the fact that his statement was given voluntarily or not.
(10.2.1) Through the testimony of PW8 R. K. Singh, Nodal Officer, Bhartiya Airtel Ltd., the prosecution has brought on record the CAF of mobile phone no. 9278404390, Ex. PW8/A and CAF of mobile phone no. 9871559297, Ex. PW8/B and the CDR of the said mobile phones CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 13/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:27:33 +0530 vide Ex. PW8/C and PW8/D respectively. The call ID chart was exhibited as Ex. PW8/G. (10.3.1) The prosecution has sought to prove the copy of the FIR, Ex. PW9/B, endorsement, Ex. PW9/C on the rukka and DD No. 79B dated 26.04.2012, Ex. PW9/A, through the testimony of Duty Officer, PW9 HC Rishi Pal.
(10.4.1) Through the testimony of PW10 HC Nanak Chand, the prosecution has sought to prove that PCR Vehicle B-31 which was stationed under Gokulpuri flyover had reached the spot after a call was marked to it by Police Control Room through PW19 SI Harshayak Singh (Dispatch Operator) at 11.10 PM on 26.04.2012. Upon reaching the spot, PW10 found that one person was lying on the spot with blood around his body and he lifted the injured and took him to GTB Hospital in the PCR van. During his cross examination conducted by Ld. Defense Counsel, PW10 had deposed that good number of public persons were present near the spot since there was a wedding going on and since the victim was lying unconscious and was critically injured, he immediately took him to the hospital, instead of making any inquiries from the public persons. He had categorically deposed that he had not seen the knife on the body of the victim, being stabbed on the back of the injured.
(10.5.1) The crime team report, Ex. PW24/A was brought on record through the testimony of In-charge Mobile Crime Team, PW24 Inspector CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 14/37 Digitally signed by ATUL AHLAWAT ATUL Date:
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U. Bala Shankaram and it had come in his testimony that no photographs of the crime scene was taken since nothing could be detected from the crime scene.
(10.6.1) The scaled site plan, Ex. PW22/A was brought on record through the testimony of the Droughtsman, PW22 ASI Sonu Kaushik.
(10.7.1) The copy of the register no. 19 and 21 containing relevant entries at serial no. 1141/12 and 1163/12, Ex. PW16/A and Ex. PW16/B respectively alongwith copy of the Road Certificate no. 70/21/12, was sought to be proved by the prosecution through the testimony of the MHCM PW16 ASI Krishan Pal, and the RC certificate was handed over by MHCM PW16 ASI Krishan Pal to PW20 HC Chander Pal, who had deposited the same before FSL Rohini and the acknowledgment receipt was handed by PW20 to PW16.
(10.8.1) The initial call made to the police vide DD no. 79B, Ex. PW9/A was marked to Inquiry Officer, PW11 SI K. P. Singh and he alongwith PW-15 HC Ajay Malik had reached the spot and found that since it was raining, everything was wet and injured had already been removed to the hospital by the PCR. Thereafter, PW11 and PW15 went to the GTB Hospital and collected the MLC of the victim, wherein, he was declared "unfit for statement". No eye witnesses were found on the spot or in the hospital. PW11 made an endorsement Ex. PW11/A on the said DD entry and prepared the rukka and got the FIR registered.
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Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.11.22
11:27:47
+0530
(10.8.2) It has further come in the testimonies of PW11 SI K. P.
Singh and PW15 HC Ajay Malik that on 27.04.2012, they had joined the investigation alongwith IO PW25 ACP Rakesh Kumar and the IO had prepared the inquest papers and the dead body was identified by the relatives of the deceased. The postmortem of the dead body was got conducted by the IO and the body was handed over to the family members of the deceased. The sealed envelops alongwith the sample seal were handed over to PW11 Ct. Ajay Malik by the concerned doctor and they were taken into possession by the IO vide seizure memo, Ex. PW11/B. (10.8.3) It has further come in the testimonies of PW11 SI K. P. Singh, PW18 ASI Fayaz Ahmed that they had accompanied the IO PW25 ACP Rakesh Kumar and the eye witness Ishaan @ Munna and at the pointing out of the said eye witness, accused Naushad was arrested vide memo, Ex. PW11/C. His personal search was conducted vide memo, Ex. PW11/D. (10.9.1) The arrest of accused Arif and Mohd. Hussain @ Moni and their personal search and disclosure statements were sought to be brought on record by the prosecution through the testimonies of PW12 SI Prem Pal Singh, PW13 ASI Satish, PW17 ASI Yogander Maan and PW14 HC Jitender, who had all joined the investigation alongwith the IO PW25 ACP Rakesh Kumar.
(10.10.1) Through the testimony of the Investigating Officer PW25 CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 16/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:27:53 +0530 ACP Rakesh Kumar, the prosecution has sought to prove the entire investigation carried out in the present case. He had deposed that the knife in question was recovered through accused Asif (since deceased) and the same was seized by him vide seizure memo, Ex. PW25/G. As per his deposition, accused Asif took out the knife from beneath his bed and produced the same before him and the accused Asif had also informed him that after the commission of the present offence, the accused had washed out the said knife.
(10.10.2) Through the testimony of the Investigating Officer PW25 ACP Rakesh Kumar, the prosecution had also sought to bring on record the clothes being worn by the accused Mohd. Hussain @ Moni at the time of the commission of the alleged offence. His T-shirt and lower were exhibited as Ex. P-3 and Ex. P-4 respectively. During the cross examination conducted by Ld. Defense Counsel, IO PW25 ACP Rakesh Kumar had deposed that he did not get the DNA profiling of the alleged blood found on the clothes of the accused persons, with the clothes of the deceased.
11. Medical Witness:-
(11.1.1) PW-26 is Dr. Parmeshwar Ram. He had deposed on behalf of the Dr. Gaurav Kaushal, the then JR, GTB Hospital and he had identified the handwriting and signatures of Dr. Gaurav Kaushal on the MLC Ex. PW26/A. CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 17/37 Digitally signed by ATUL AHLAWAT ATUL Date:
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Admitted Documents & Plea of Accused:
12. After completion of prosecution evidence, PE was closed. The statement of the accused Mohd. Hussain @ Moni was recorded under Section 313 Cr.P.C., in which he had pleaded innocence.
13. Vide his statement recorded u/s 294 Cr.PC, accused Mohd.
Hussain @ Moni had admitted the Post Mortem Report and the same was exhibited as Ex. A-1. He has further admitted the subsequent opinion dated 23.05.2012 given by Dr. Ashok Najan, the then Junior Demonstrator, GTB Hospital and the same was exhibited as Ex. A-2.
14. After completion of prosecution evidence, PE was closed. The statement of the accused persons was recorded under Section 313 Cr.P.C., in which they had pleaded innocence.
15. The accused persons chose not to lead any Defense Evidence.
16. I have heard the arguments advanced by Sh. Kamal Akhter, Ld. Additional PP for the State, Sh. Sanjeev Bhardwaj, Ld. Counsel for accused Mohd. Hussain @ Moni. I have minutely gone through the evidence brought on record and the material aspects of the case.
Submissions made on behalf of the State:
17. It has been argued by the Ld. Addl. PP for the State that the CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 18/37 Digitally signed by ATUL AHLAWAT ATUL Date:
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prosecution has proved beyond reasonable doubt that on 26.04.2012 at about 11.00 PM, opposite Harnam Palace Banquet Hall, situated on main Wazirabad Road, accused Mohd. Hussain @ Moni in furtherance of his common intention shared with co-accused Naushad (since deceased) and co-accused Asif (since deceased) had committed the murder of deceased Mohd. Rizwan, by giving knife blow injuries to him and the said assault was carried out by the accused persons with the intention of causing such bodily injuries in the abdomen of the victim, and they knew it to be likely to cause death and was sufficient in the ordinary course of nature to cause death of deceased Mohd. Rizwan. Therefore, all the ingredients of the offence punishable u/s 302/34 IPC, 1860 are made out in the present case.
18. It is further submitted by the Ld. Addl. PP for the state that the medical evidence has duly proved that the deceased Mohd. Rizwan had died during the treatment after he had received a knife stab injury on his abdomen. He was declared dead by the concerned Doctor on 27.04.2012. As per the postmortem report, Ex. A-1, the concerned doctor had opined the cause of death as "Hemorrahagic shock as a result of ante-mortem stab injury to abdomen produced by double edged sharp weapon, and injury no. 3 i.e. the incised stab wound measuring 2.5 cm x 0.2 cm x 10 cm found present over lateral aspect of right buttock 1.5 cm bellow ileac creast and 18 cm from mid line in front of body, was sufficient to cause death in ordinary course of nature". Furthermore, as per the subsequent opinion Ex. A2, the knife Ex. PW13/P-1 i.e. one knife with double edged sharp pointed metalic blade with wooden handle and the injuries CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 19/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:28:10 +0530 mentioned in the PM Report Ex. A-1 were opined to be "possible with the weapon", examined by the concerned doctor. Therefore, the prosecution has been able to establish that the death of the deceased Mohd. Rizwan was caused by the knife Ex. PW13/P-1, which was recovered through accused Asif (since deceased) and the accused persons in furtherance of their common intention with each other had committed the murder of the deceased.
Submission made on behalf of the Accused:
19. It is submitted by the Ld. Counsel for the accused Mohd. Hussain @ Moni that the prosecution had produced 25 witnesses to prove its case. Out of the said 25 witnesses, the case of the prosecution depended heavily on the testimony of four ocular witnesses namely PW-1 Nisaruddin @ Shahrukh, PW-2 Mosheen @ Mohsin, PW-3 Juber Ahmed and PW-4 Ishaan @ Munna. All the said alleged eye witnesses had not supported the case of the prosecution and they had turned hostile during the time of deposition before this Court. None of the said alleged eye witnesses had identified the accused persons before this court. It has categorically come in their testimonies that they could not identify the accused persons including accused Mohd. Hussain @ Moni, as they had not witnessed the alleged incident. The identity of the accused persons could not be established by the prosecution, therefore, the accused persons can not be convicted for the offences in question.
20. It is submitted by the Ld. Counsel for the accused that the CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 20/37 Digitally signed by ATUL AHLAWAT ATUL Date:
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prosecution could not bring on record any circumstantial evidence to support their case. It had come in the testimony of PW11 SI K. P. Singh and IO PW25 ACP Rakesh Kumar that no ocular witnesses were found on the spot or in the hospital where the deceased was taken for treatment. Furthermore, no blood stains were found on the spot, since it was raining at the time of the alleged incident. There was no effort made by the IO to search for the CCTV footage of the cameras installed near the scene of alleged occurrence. Furthermore, as per the case of the prosecution, the alleged incident took place in front of a banquet hall, where a wedding function was going on. It has specifically come in the testimony of the formal witnesses that public persons were present on the spot as huge crowd had gathered there, yet no independent public person was interrogated and cited as a prosecution witness.
21. It is submitted by the Ld. Counsel for the accused that in the present case the recovery of the knife is allegedly shown through accused Asif, who had died during the trial and proceedings qua him have already stood abated. However, the said recovery is highly doubtful and untrustworthy, since, it has categorically come in the testimony of PW4 Sachin, who is the caller who made the call to the police on 100 number that after the incident had already taken place, he saw that number of public persons were collected outside the banquet hall and he saw that the deceased was lying on the road and he was having a knife injury in his abdomen and the said knife was present there, while stuck in the said injury. Therefore, the prosecution story whereby accused Asif got the knife recovered from his house is highly unbelievable and the entire CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 21/37 Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.11.22 11:28:22 +0530 recovery is rendered untrustworthy, in light of the categorical testimony of PW4 Sachin.
22. It is submitted by the Ld. Counsel for the accused that the present case is a classic case of misuse of the powers by the police officials, wherein instead of tracing out the real culprits, the IO has framed the present accused persons in the present case upon the alleged tip given by the secret informer. The entire case of the prosecution, as far as involvement of the accused Mohd. Hussain @ Moni is concerned is based upon his disclosure statements, which has no evidentiary value in the eyes of law, since there is no recovery effected through him.
23. It is submitted by the Ld. Counsel for the accused that during the time of investigation, none of the alleged eye witnesses had identified the accused Mohd. Hussain @ Moni, since no TIP was got conducted by the IO.
24. It is submitted by the Ld. Counsel for the accused that the IO Inspector Rakesh Kumar (PW25 ACP Rakesh Kumar) had recorded two statements of the wife of the deceased, namely Tarannum u/s 161 Cr.PC, i.e. Ex. PW6/DA and Ex. PW25/C and in the said statements, the wife of the deceased had not named accused Mohd. Hussain @ Moni and she had not expressed any suspicion upon the said accused. Her entire testimony which was recorded in Court when she stepped into the witness box as PW6 is marred with inherent improvements and contradictions. Therefore, even the motive behind the alleged incident CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 22/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:28:27 +0530 could not be proved by the prosecution.
Case Laws:
25. In the background of the above, I shall now discuss the evidence brought on record in the present case. It is trite law that the accused persons can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr" , Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
26. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary. "Evidence" under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 23/37 Digitally signed by ATUL AHLAWAT ATUL Date:
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substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt.
27. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
28. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
29. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 24/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:28:40 +0530 derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.
30. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
31. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
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32. The word "prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
33. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domain.
34. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 26/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:28:50 +0530 it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v. State of Madras", 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 27/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:28:56 +0530 insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
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2024.11.22 11:29:01 +0530 In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 29/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:29:06 +0530 entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."
Appreciation of Evidence:
35. In the background of the abovesaid decisions, I shall now appraise the evidence brought on record. In the present case, the prosecution has been able to prove beyond reasonable doubt that through the testimony of PW 26 Dr. Parmeshwar Ram that the injured patient Mohd. Rizwan was admitted in GTB Hospital on 26.04.2012 at around 11.35 PM and as per the request for postmortem Ex. PW25/D, the injured had succumbed to the injuries on 27.04.2012 at about 12.30 PM. His death summary Ex. PW 25/A was also brought on record. The MLC of the injured Mohd. Rizwan was duly proved by the prosecution through the testimony of PW-26 Dr. Parmeshwar Ram. The said MLC Ex. PW 26/A had brought on record the result of the local examination, whereby it was recorded by the concerned doctor that, "there was incised wound 3x1 cm at right lumbar region with active bleeding and 5x1 cm incised wound at left arm, which was bone deep".
36. As per the Post Mortem Report Ex. A-1, which was duly admitted by the accused vide his statement recorded u/s 294 Cr.PC on 30.08.2024, the cause of death was opined by the concerned Doctor who conducted the Post Mortem of the deceased was mentioned as "Hemorrahagic shock as a result of ante-mortem stab injury to abdomen produced by CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 30/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:29:11 +0530 double edged sharp weapon, and injury no. 3 i.e. the incised stab wound measuring 2.5 cm x 0.2 cm x 10 cm found present over lateral aspect of right buttock 1.5 cm bellow ileac creast and 18 cm from mid line in front of body, was sufficient to cause death in ordinary course of nature".
37. As per the Post Mortem Report, Ex. A-1, the injury no.3 found over the lateral aspect of right buttock on the body of the deceased was opined by the concerned doctor to be sufficient to cause death in the ordinary course of nature. Therefore, the prosecution has been able to prove, the death of the deceased Mohd. Rizwan, as well as the injuries received by him upon his person and also the opinion of the doctors who had conducted his medical examination and Post-Mortem.
38. Coming to the testimony of the alleged ocular witnesses, their entire deposition is not coming to the aid of the prosecution. All the alleged eye witnesses namely PW-1 Master Nisaruddin @ Shahrukh, PW-2 Mosheen @ Mohsin, PW-3 Juber Ahmed and PW-5 Ishaan @ Munna have all turned hostile before this Court. They had all categorically deposed that they had not seen the alleged incident and refused to identify the accused persons, including accused Mohd. Hussain @ Moni.
39. The injured person was admitted in GTB Hospital on 26.04.2012 at about 11.35 PM and till the time of his death on 27.04.2012 at about 12.30 PM, he was not fit for giving any statement to the IO. Since, the victim was not in a position to give statement, there was no dying declaration in the present case. As per his MLC, Ex. PW26/A, he was CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 31/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:29:16 brought to the hospital in unconscious state and his B.P. was not recordable and his pulse was extremely feeble. It is not the case of the prosecution that the first informant i.e. PW4 Sachin had spoken to the deceased prior to his death and it was also not deposed by PW10 HC Nanak Chand that the injured victim had informed him about the names or other details of the assailants. Therefore, the entire prosecution case was dependent upon the testimony of the ocular witnesses only.
40. The testimony of PW6 Tarannum, who is the wife of the deceased is also not inspiring any confidence, since there are material improvements in her testimony from her previous statements.
Furthermore, she had not witnessed the incident in question and her entire testimony has been contradicted by the testimonies of other material public witnesses. She is undoubtedly an interested witness and considering the nature of her testimony, it needed to be corroborated on material aspects, which is completely missing in the present case.
41. Although proceedings qua accused Naushad and Asif have already stood abated, however, it is pertinent to mention here that the entire recovery of the knife through the possession of accused Asif is highly tainted and rendered unbelievable in light of the categorical testimony of PW4 Sachin who had stated that "I saw a person lying on road and he was having a knife injury in his abdomen and the knife was there stuck in body in that injury." Therefore, when the independent public witness had arrived on the spot after the alleged incident, when the assailants had already fled away from the spot, the knife which was used in giving stab CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 32/37 Digitally signed by ATUL AHLAWAT ATUL Date:
AHLAWAT 2024.11.22 11:29:22 +0530 blows to the deceased was still lying stuck inside the body of the deceased Mohd. Rizwan. Therefore, the said knife magically vanishing from being stuck inside the body of the deceased and later appearing in the house of co-accused Asif (since deceased) after more than one week of the alleged incident, when on 03.05.2012, the IO alongwith his police team, the secret informer and a child witness reaches Kaccha Arthala, Sahibabad, Ghaziabad and the knife is transported to beneath the bed of accused Asif in his house and the same is produced by him before the IO and he innocently informs the IO that after the alleged incident, the knife has been washed by him. Lastly, the IO simply believes the alleged explanation, so as to avoid sending the said knife to the FSL for forensic examination and his own admission during the cross examination that the said knife which was allegedly recovered in the case was easily available in the market, casts serious doubts upon the entire investigation. Therefore, the entire testimonies of the IO PW25 ACP Rakesh Kumar, PW12 SI Prem Pal Singh, PW17 ASI Yogander Maan and PW14 HC Jitender are rendered highly unbelievable in light of the testimony of informant PW4 Sachin.
42. In the present case, the prosecution has been able to prove the death of the deceased Mohd. Rizwan. As per the case of the prosecution, there were no less than 4 ocular public witnesses, who had albeit completely gone hostile and had not supported the case of the prosecution. The identity of the accused Mohd. Hussain @ Moni could not be established by the prosecution. Therefore, he cannot be convicted for the offences in question. Suspicion, however, grave, cannot take CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 33/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:29:28 +0530 place of proof.
43. In a case based on circumstantial evidence, the settled law is that the circumstantial from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, as held by the Hon'ble Supreme Court of India in "Hanuman Govind Nargundkar Vs. State of MP " AIR 1952 SC 343, "Bodh Raj Vs. State of J&K" AIR 2002 SC 3164 and "Sharad Birdhichand Sarda Vs. State of Maharashtra " AIR 1984 SC 1622 and "C. Chenga Reddy and Ors. Vs. State of A.P. " (1996) 10 SCC 193.
44. It is also settled law that accused has to only proboblized the defense and he is presumed to be innocent till he is proved to be guilty. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam " (2012) 2 SCC 34 and " Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79.
45. There is another golden thread which runs through the web of CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 34/37 Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2024.11.22 11:29:33 +0530 administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted, as held by the Hon'ble Supreme Court of India in "Kali Ram Vs. State of Himanchal Pradesh" AIR 1973 SC 2773.
Conclusion & Findings:
46. The improvements and the inherent contradictions in the testimony of the prosecution witnesses had certainly raised doubts in the mind of the Court and the effort of the Criminal Court is not to be prowl for imaginative doubts, unless is doubt is of a reasonable dimension and is what judicially conscientious mind entertains with some objectivity, otherwise no benefit can be claimed by the accused. In the present case the doubts raised from the testimony of the prosecution witnesses cannot be set to be merely imaginative and the same has been borne from the record of the present case. The said doubts are not merely imaginary or trivial in nature and it has dented the entire case of the prosecution. The burden of proof cast upon the accused persons is governed by the principle of "preponderance of probabilities" and in light of the discussion above, the accused persons in the present case have been able to raise reasonable doubts against the prosecution version of events and the hypothesis as propounded by the accused persons that they have been falsely implicated in the present case at the instance of the wife of the deceased. With the evidence brought on record, it cannot be said that the chain of prosecution witnesses and the evidence brought on record was CNR No. DLNE01-000158-2012 State Vs. Naushad & Ors FIR No. 124/2012 Page no. 35/37 Digitally signed by ATUL AHLAWAT ATUL Date:
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so complete, so as to not leave any reasonable ground consistent with the innocence of the accused person.
47. When the entire evidence of the present case is cumulatively read and appreciated in the background of the settled principle of law and in the light of the evidence adduced by the prosecution, wherein the identity of the accused persons could not be established and none of the material prosecution witnesses could identify them before this court. Therefore, the testimony of formal witnesses is not worthy of acceptance and there is a serious shadow of doubt cast upon it and not worthy of inspiring any confidence. Hence, they strike at the very root of the prosecution story rendering it to be improbable and unbelievable. Therefore, in the opinion of this Court, there is no doubt that the prosecution has miserably failed to prove its case beyond reasonable doubt and hence, accused Mohd. Hussain @ Moni S/o Late Asgar Ali is acquitted of the charges for committing the offences punishable u/s 302/34 Indian Penal Code, 1860 and he shall be set at liberty.
48. The accused had already filed his bail bonds u/s 437A Cr.PC and the same shall remain in force for a period of six months from today. All the other bail bonds/surety bonds stands canceled and the earlier surety except for surety given u/s 437A Cr.PC stands discharged.
49. The case property, if any, be released to the rightful owner as per the law and the applicable rules, subject to the orders of the Hon'ble Appellate Court(s).
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Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.11.22
11:29:47
+0530
50. File be consigned to the record room after due compliance.
Announced in the open court on 22.11.2024.
This judgment consists of 37 pages and all of them have been digitally signed by me.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2024.11.22
11:29:54
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/22.11.2024.
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