Delhi District Court
State vs (1)Shanu @ Shahrukh on 21 October, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : KARKARDOOMA COURTS, DELHI
SC No.17/2012
Unique Case ID No.02402R0090192012
FIR No.06/2012
Police Station Kalyan Puri
Under Section 302/34 IPC
State Versus (1)Shanu @ Shahrukh
S/o Kamal Ahmed
R/o 13/397, Kalyan Puri, Delhi.
(2)Babu @ Mohd. Azam
S/o Noor Mohd.
R/o 1/291, Trilok Puri, Delhi.
Date of Institution : 16.04.2012
Date of judgment reserved : 09.10.2014
Date of judgment : 21.10.2014
JUDGMENT
Two accused persons, namely, Shanu @ Shahrukh and Babu @ Mohd. Azam have been sent to face trial by the police of PS Kalyan Puri for the offences punishable under Section 302/34 IPC. 2 Briefly stating, the facts of the prosecution case are SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 1 of 28 that on 10.01.2012, a DD No.27A Ex.PW14/K was received in the police station to the effect that one boy had been stabbed in H.No. 13/391, Kalyan Puri, 13 Block, Delhi. Said DD was assigned to SI Rahul Kumar (PW12) who reached the spot and found a lot of blood in the street. It was revealed that injured was taken to LBS Hospital. SI Rahul Kumar (PW12) reached LBS Hospital and collected MLC of injured Sabbir who was declared dead by the doctor. In this regard, a DD No.29A Ex.PW14/L was lodged in the police station from the hospital. On receipt of said DD, Insp. Om Singh (PW14) reached LBS Hospital and met SI Rahul Kumar (PW12). Dead body of deceased was inspected which revealed that there was a wound on his chest. One eye witness of the incident, namely, Ziyauddin (PW3) met in the hospital and his statement Ex.PW3/A was recorded. 3 In his statement Ex.PW3/A, the complainant Ziyauddin (PW3) has stated that he had been residing at 13/391, Kalyan Puri and in the adjoining street, he had been running a Kabab shop. On 10.01.2012 at about 08.30 p.m., he and his servant Sabbir (deceased) were present at their shop. Sabbir was preparing Kababs while the complainant was sitting at the counter. Accused Babu and Shanu, who were known to him prior to incident, came to their shop. SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 2 of 28 Both the accused had eaten Kabab and started moving. When Sabbir asked for the payment of Kabab, both the accused hurled abuses on him and said that he did not know them and was asking for payment. Thereafter, altercation ensued between deceased Sabbir and both the accused persons. Accused Babu caught hold of Sabbir and when Ziauddin was about to intervene, accused Shanu attacked Sabbir with knife as a result of which Sabbir fell down and thereafter both the accused persons fled away from there. On hearing noises, Shahid Bhai and Shakeel also reached there and then Sabbir was removed to LBS hospital where he died.
4 Insp. Om Singh (PW14) made his endorsement Ex.PW14/A on the statement Ex.PW3/A of the complainant and sent Ct. Ranvir to the police station with the direction to hand over rukka to the duty officer for registration of FIR. In the police station, duty officer ASI Satyan Pal Singh (PW1) registered the FIR Ex.PW1/B and made his endorsement Ex.PW1/A on the rukka. He also made DD entries Ex.PW1/C to Ex.PW1/F. The dead body was shifted to mortuary of LBS Hospital. Insp. Om Singh (PW14) along with SI Rahul and complainant reached at the spot. The crime team was called at the spot. Spot was photographed by Ct. Satinder (PW2). He proved SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 3 of 28 the negatives as Ex.PW2/A and photographs as Ex.PW2/B1 to B4. Investigation of the case was assigned to Insp. Om Singh (PW14). He prepared site plan Ex.PW14/B at the instance of complainant. The blood on gauze, earth control and blood stained earth control were seized from the spot vide seizure memo Ex.PW12/A. 5 During the course of investigation, on receipt of secret information, accused persons were apprehended. Both the accused were arrested vide arrest memos Ex.PW3/J1 and J2 and their personal searches were conducted vide memos Ex.PW3/K1 and K2. Blood stained shirts Ex.P2 & Ex.P3 of both the accused were seized vide memos Ex.PW3/D and Ex.PW3/E. Accused Shanu got recovered knife Ex.P1 from near a wall of Fish Market. The knife was seized vide seizure memo Ex.PW3/C after preparing its sketch Ex.PW3/B. Both the accused took the police party to the place of incident and pointed out the same vide pointing out memo Ex.PW3/F. Their disclosure statements Ex.PW3/G and Ex.PW3/H were recorded. The case property was deposited in malkhana vide entries Ex.PW11/A. 6 The IO prepared inquest papers Ex.PW14/C. The dead body was identified by Mohd. Israel, father and Mohd. Kalim, brother in law of deceased vide statements Ex.PW14/D and SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 4 of 28 Ex.PW14/E. Postmortem on the dead body of deceased was conducted by Dr. Vinay Kumar Singh (PW8) vide report Ex.PW8/A. After postmortem, dead body of deceased was handed over to father of deceased vide handing over memo Ex.PW14/H. After postmortem, doctor handed over sealed parcels which were seized vide memo Ex.PW14/J. On 08.07.2014, Dr. Vinay Kumar Singh (PW8) received an application from IO for giving subsequent opinion along with one sealed parcel containing knife. PW8 examined the knife, prepared sketch and gave opinion that injury no.1 mentioned in postmortem report Ex.PW8/A was possible from the questioned knife. PW8 proved his subsequent report as Ex.PW8/B. 7 The scaled site plan of the place of incident was prepared by HC Sonu Kaushik (PW6). The exhibits of the case were sent to FSL vide RC Ex.PW11/B & Ex.PW11/C. Exhibits were examined in FSL by Sh. Naresh Kumar (PW13), Sr. Scientific Officer (Biology) vide biological report Ex.PW13/A and serological report Ex.PW13/B. Sh V. Sankarannarayan, Sr. Scientific Officer, DNA, FSL examined the exhibits of the case biologically as well as done DNA analysis vide report Ex.PW15/A. 8 After completion of the investigation, the challan was SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 5 of 28 put up in the court of the Metropolitan Magistrate, where accused persons were supplied with the copies of documents of the prosecution and then, the case was committed to the Sessions Court for the trial of the accused persons.
9 The charge under section 302/34 IPC was framed against both the accused on 04.05.2012 which reads as under: "That on 10.01.2012 at about 8.30 p.m. in the street adjoining H.No.13/391, Kalyan Puri, Delhi within the jurisdiction of PS Kalyan Puri, you both in furtherance of your common intention committed the murder of Sabbir by giving knife blows on his chest and thereby you both committed an offence punishable under section 302/34 IPC".
10 Accused persons pleaded not guilty to the charge and claimed trial.
11 In support of its case, prosecution has examined 15 witnesses. PW3 Ziyauddin is the alleged eye witness of the incident, whereas PW5 Mohd. Shaqil and PW7 Shahid are public witnesses. PW1 ASI Satyapal Singh, PW2 Ct. Satinder, PW4 Ct. Ranbir, PW6 HC Sonu Kaushik, PW10 Ct. Arvind, PW11 HC Khiloo Singh, PW12 SI Rahul and PW14 Insp. Om Singh are the police officials/officers. PW9 Dr. P.C. Sahu prepared MLC of deceased whereas PW8 Dr. SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 6 of 28 Vinay Kumar Singh conducted postmortem on the dead body of deceased. PW13 Sh. Naresh Kumar and PW15 Sh.V. Sankarannarayan examined the exhibits in FSL.
12 The statements of the accused persons have been recorded under Section 313 Cr.PC in which they stated that they are innocent and have been falsely implicated in the present case. They have stated that no recovery was effected from them and the knife was planted. They have stated that they were lifted by police from their house on the night intervening 10/11.01.2012. Their signatures were obtained on blank papers. Accused persons opted not to adduce any defence evidence.
13 I have heard Ld. Addl. PP for the State as well as Ld. counsel for accused Shanu and Ld. amicus curiae for accused Babu. I have carefully gone through their submissions and meticulously gone through the entire material available on record. 14 It is argued by the Ld. Addl. PP that the prosecution has produced enough material on record to establish the guilt of the accused persons that they committed the murder of deceased. It is further argued that PW3 Ziyauddin is the eye witness to the incident and he supported the case of prosecution. Though, he changed his SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 7 of 28 version in his cross examination, but his testimony cannot be discarded in toto. It is further argued that knife was got recovered from by accused Shanu which also corroborates the case of prosecution that the murder was committed by the said knife.
15 On the other hand, it has been argued on behalf of accused that there is no evidence on record to connect the accused persons with the commission of murder of deceased. It is further argued that the sole alleged eye witness of the incident PW3 Ziayuddin has demolished the case of prosecution in his crossexamination. PW3 has stated that he had not seen the assailants and no such incident had taken place in his presence. PW3 is not trustworthy and no conviction can be recorded on the basis of his testimony. Remaining two public witnesses PW5 & PW7 are not the eye witnesses of the incident. It is further argued that prosecution has failed to prove the recovery of knife at the instance of accused Shanu beyond reasonable doubt as no public person was associated in its recovery. It is further argued that prosecution has not been able to prove its case against accused persons beyond reasonable doubt, therefore, they are entitled for acquittal. Incident of murder 16 Case of the prosecution is that on 10.01.2012, SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 8 of 28 deceased Sabbir was given knife blows on his person which resulted into his death.
17 To prove the factum of death of deceased, witness SI Rahul (PW12) deposed that on 10.01.2012, he was entrusted a call vide DD No.29A from the duty officer regarding stabbing with knife to a boy in gali near H.No.13/391, Kalyan Puri. PW12 along with Ct. Jagpal reached at the spot where PW12 came to know that one Shabbir had been stabbed by two boys and the injured had been removed to LBS Hospital. Blood was lying at the spot. Ct. Jagpal was left at the spot to safeguard the same and PW12 proceeded to LBS Hospital where he collected MLC of injured Shabbir. Meanwhile, Insp. Om Singh also reached the hospital. The injured was declared brought dead.
18 Dr. P.C. Sahu (PW9) has deposed that he was posted as CMO LBS Hospital. On 03.01.2012 (it should be 10.01.2012) at about 8.45 p.m., one Sabir was brought to hospital with the alleged history of assault. On examination, PW9 found the patient unconscious, BP and pulse were not record able. One stab wound measuring 2cm X 1 cm with severely bleeding was noticed on the left upper chest. In spite of all efforts, patient could not be survived. SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 9 of 28 Body of the deceased was referred for postmortem. PW9 prepared MLC Ex.PW9/A. 19 As per MLC Ex.PW9/A of the deceased Sabir, he sustained one stab wound measuring 2cm X 1cm deep severely bleeding on left upper chest. The deceased was declared dead at 08.50 p.m. 20 It is the case of the prosecution that deceased died due to injuries stab wound sustained by him on 10.01.2012. The postmortem on the dead body of deceased was conducted by Dr. Vinay Kumar Singh (PW8) vide report Ex.PW8/A. According to him, aftr examination, he observed following external injuries : (1)Incised stab wound 3.4 X 1.7cms, obliquely present over left side of chest, 131 cms above heel and 10.05 cms from middle line, chest cavity deep, margins sharp and regular, medial and acute.
21 PW8 Dr. Vinay Kumar Singh deposed that on internal examination in continuation of injury No.1, he observed skin, subcutaneous tissue, muscles, between first and scond rib, pleura, upper lobe of left lung 1.5X0.7 cms, about 2 liters of blood present in cavity, upper lobe collapsed, both lungs pale. All other internal lungs SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 10 of 28 were also pale. As per his opinion, the cause of death was hemorrhagic shock consequent upon stab injury to the chest caused by single edged sharp cutting weapon/knife. All injuries were ante mortem in nature and recent in duration. Injury no.1 was sufficient to cause death in ordinary course of nature. Time since death was about 38 to 46 hours prior to postmortem. He proved his postmortem report as Ex.PW8/A. 22 In view of the postmortem report Ex.PW8/A, I am of the considered opinion that the injuries sustained by the deceased were ante mortem in nature. The stab wound on the chest of the deceased was opined to be sufficient to cause death of deceased in ordinary course of nature. Consequently, I am of the firm view that the deceased died due to the injuries received by him in the incident dated 10.01.2012.
23 The question which remains to be answered is whether the said injuries on the person of deceased were caused by the accused persons or not, is to be dealt with in the later part of the judgment.
Identification of accused persons 24 It is alleged against the accused persons that they in SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 11 of 28 furtherance of their common intention committed murder of deceased by giving knife blows on his person of deceased which resulted into death of the deceased.
25 The case of the prosecution solely rests upon the testimony of alleged eye witness/complainant Ziyauddin (PW3). It is claimed by the prosecution that PW3 witnessed the incident of giving knife blow by accused persons to the deceased. It is also claimed that PW5 Mohd. Shaqil and PW7 Shahid are the corroborative witnesses to the incident of murder.
26 The complainant Ziyauddin (PW3) in his deposition has testified that he was doing business and running a meat shop in Kalyanpuri, Delhi. One Sabbir was working at his shop. On 10.01.2012 at about 8.30 p.m., PW3 along with his employee Sabbir was present in the shop. Sabbir was preparing Kabbab and PW3 was present near to him at some distance from the counter near the door of his shop. Meanwhile, accused Babu along with accused Shanu came to the shop of PW3. Accused Babu and Shanu took Seekh Kabab and after finishing them, they started returning back from the shop. Sabbir asked the accused persons for payment of Kabbab. Accused Babu intimidated Sabbir and refused to make payment and then accused SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 12 of 28 Babu started abusing. Meanwhile, accused Shanu assaulted Sabir while accused Babu had caught hold Sabbir. Accused Shanu assaulted with knife and gave knife blow on upper portion of chest of Sabbir. Sabbir fell down due to knife blow caused by accused Shanu. Sahid and Sakeel came there and took Sabbir to hospital, while accused persons ran away from the spot. Sabbir was taken to LBS Hospital where he was declared dead. PW3 also reached the hospital where police also reached and his statement Ex.PW3/A was recorded. Thereafter, he returned back to the spot with police official and pointed out the spot. Police prepared site plan at his instance. Both the accused were apprehended. Accused Shanu got recovered a knife from behind Fish Market. IO prepared sketch Ex.PW3/B of the knife and took into police possession vide memo Ex.PW3/C. Blood stained shirts of both the accused were seized vide memo Ex.PW3/D and Ex.PW3/E. Both the accused persons pointed out the place of incident vide memo Ex.PW3/F. Accused persons made disclosure statements Ex.PW3/G and H. They were arrested and their personal searches were conducted vide memos Ex.PW3/J1 & J2 and Ex.PW3/K1 & K2. 27 During crossexamination, PW3 has stated that his house was situated just adjacent to his meat shop. He had heard heard SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 13 of 28 the noise of quarrel and then he came out of his house and he found his servant Sabbir in a pool of blood. PW3 took him to LBS Hospital on a rehri (cart) where Sabbir was declared dead. Family members of Sabbir also reached as the police had informed them. Postmortem was conducted next day. PW3 has stated that he had not seen anyone assaulting or stabbing his helper/servant Sabbir. When he came out, the assailant had already run away. He stated that his signatures were taken by the police on some blank papers. None of the accused was arrested in his presence and recovery of knife was also not affected in his presence. PW3 further stated that he deposed earlier in the Court at the instance of police officials who had told PW3 that they had recorded his statement and he had to depose accordingly. He could not say how many papers police officials obtained his signatures. He categorically stated that he had not witnessed the incident. He remained in the hospital from 9.00 p.m. of 10.01.2012 to 1.30 a.m. of 11.01.2012. During that period, police had not made any inquiry from him or recorded his statement.
28 There are material contradictions in the testimony of PW3 complainant/alleged eye witness. In his examination in chief, he has stated that he had seen the incident from his own eyes and that he SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 14 of 28 had seen both the accused assaulting deceased Sabbir. But in his crossexamination, PW3 contradicted his examination in chief. He has stated that he had not witnessed the incident as he was inside his house. He had not seen any of the assailants as when he came out of his house, the assailant had already run away.
29 The material contradictions in the testimony of PW3 which makes his testimony unreliable and unworthy of credence are that in his examination in chief, he has stated that at the time of incident, he was present in his shop along with his employee deceased Sabbir, but in his crossexamination, he changed his version. In cross examination, he stated that he was inside his house at the time of incident.
30 In his examination in chief, PW3 stated that when his employee Sabbir asked for payment of the Kababs which the accused persons had consumed, both the accused firstly abused, then intimidated and then accused Shanu gave knife blow to Sabbir and at that time, accused Babu had caught hold of Sabbir. But in his cross examination, he completely changed his version by stating that he was not present in his shop at the time of incident. He had heard the noise of quarrel and then he came out of his shop and found Sabbir in a pool SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 15 of 28 of blood. He further stated that he had not seen anyone assaulting or stabbing Sabbir. When he came out of his house, the assailant had already run away. He categorically stated that he had not witnessed the incident.
31 In his examination in chief, PW3 stated that his statement was recorded by the police in the hospital, but in his cross examination, he changed his version by stating that he remained in the hospital from 9.00 p.m. of 10.01.2012 to 1.30 a.m. of 11.01.2012, but during that period, police had not made any inquiry from him nor recorded his statement. It is matter of record that the statement Ex.PW3/A was the basis for registration of FIR of the present case. The complainant (PW3) himself put the case of prosecution in doubt as he stated that his statement was not recorded by the police uptill 1.30 a.m. of 11.01.2012, when he remained present in the hospital. The perusal of FIR Ex.PW1/B of the present case shows that it was registered at 10.45 p.m. of 10.01.2012. The testimony of complainant (PW3) creates a serious doubt about the registration of FIR as the complainant has stated that his statement was not recorded by the police uptill he remained present in the hospital i.e. uptill 1.30 a.m. Of 11.01.2012.
SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 16 of 28 32 There is another glaring contradiction in the testimony of PW3 with regard to apprehension of accused persons and recoery of knife. The complainant (PW3) in his examination in chief has stated that accused persons were apprehended in his presence, knife was got recovered by accused Shanu, its sketch was prepared, knife was seized, accused persons were arrested, their disclosure statements were recorded and they pointed out the place of occurrence. He also stated that he had signed the documents with regard to above proceedings. But in his crossexamination, he changed his version. In cross examination, PW3 stated that none of the accused was arrested in his presence. He categorically stated that his signatures were taken by the police on some blank papers. He could not say on how many papers police officials obtained his signatures. He categorically stated that he deposed earlier in the Court at the instance of the police officials. It also raises a suspicion about the testimony of complainant that it was a voluntary statement or the tutored statement.
33 In this regard, I have gone through the ratio of judgment of Hon'ble Apex Court in case of Shyamal Ghosh Vs. State of West Bengal AIR 2012 SC 3539 in which it was held that when omissions amount to a contradiction creating a serious doubt about the SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 17 of 28 truthfulness or creditworthiness of the witness and other witnesses also make material improvements or contradictions before the Court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. In another judgment titled State of Gujarat Vs. Ratansingh @ Chinubhai Anopsinh Chauhan MANU/SC/0026/2014, the Hon'ble Apex Court dismissed the appeal of the State while observing that the evidence led by the prosecution was not only contradictory, inconsistent and improbable, but it also suffered from vice of improvements and therefore, it was held to be unreliable.
34 In the present case also, as discussed above in detail, there are material contradictions and improvements in the testimony of the complainant (PW3), the alleged eye witness which makes him unreliable and unworthy of credence. The above referred testimony of complainant cannot be relied upon to base the conviction as a serious doubt has crept in with regard to truthfulness of the witness. 35 The prosecution has also examined another public witness PW5 Mohd. Shaqil. PW5 has deposed that he was running a meat shop. On 10.01.2012 at about 8/8.30 p.m., he had offered Namaj in Sitara Masjid, Block 13 Kalyanpuri and when he came in the gali, SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 18 of 28 he heard the noise of Pakro Pakro and saw that one Sabir who was working in the meat shop of Ziauddin was lying pooled in blood in the gali. Thereafter, PW5 along with Ziauddin, Shahid and some other persons took the injured Sabir to LBS Hospital where he was medically examined and was declared dead.
36 There is nothing in the testimony of PW5 Mohd.
Shaqil to connect any of the accused with the commission of crime of the present case. As per testimony of PW5, when he came out of Masjid after offering Namaj, he heard the noise of Pakro Pakro and saw that Sabir was lying in the street in a pool of blood. He has not stated that he had seen any of the assailant assaulting the deceased. As per his testimony he had removed the injured to hospital where he was declared dead. So, there is nothing in the testimony of PW5 to connect accused with the murder of deceased.
37 The next public witness examined by prosecution is PW7 Shahid. PW7 has deposed that on 10.01.2012 at about 8.30 p.m., when he came out from Sitara Masjid, Block 13, Kalyanpuri after offering Namaj, he heard noise in the gali. He immediately rushed towards the gali and saw that both the accused were running in the gali. Near shop of Ziyauddin, PW7 saw that one Sabbir working on SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 19 of 28 the meat shop of Ziyauddin was lying pooled in blood in the gali. PW7 along with Shakil and Ziyauddin took injured Sabbir to LBS Hospital where he was declared dead. His statement was recorded by the police. Subsequently, his statement u/s 164 Cr.P.C. Ex.PW7/A was recorded.
38 The only incriminating evidence came in the testimony of PW7 is that when he came out from Masjid after offering Namaj, he heard the noise in the street and when he proceeded towards the same, he saw both the accused persons running in the street. When he reached the spot, he saw Sabbir in the street in a pool of blood and thereafter, deceased was removed to hospital. As per his testimony, he had not witnessed the incident of stabbing or assaulting of deceased by the accused persons. He is not the eye witness of the incident. In his statement recorded u/s 164 Cr.P.C. Ex.PW7/A also, PW7 stated that he had seen the accused persons running in the gali. It is not the case of the prosecution also that PW7 was the witness of the incident. When the alleged eye witness of the incident i.e. complainant Ziyauddin (PW3) himself has not fully supported the case of prosecution and found to be unreliable, the testimony of PW7 cannot be said to be corroborative in nature. So, the testimony of PW7 is of no help to the SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 20 of 28 prosecution as it in no way connects any of the accused with the commission of crime of the present case.
39 Rest of the witnesses examined by the prosecution are either formal witnesses or official witnesses who are not concerned with the incident of the present case. The prosecution has not brought any other evidence on record to establish that the accused persons were present at the spot at the time of incident or that they gave knife blows to the deceased which resulted into his death. The testimony of witnesses of the spot i.e. Ziyauddin (PW3), Mohd. Shaqil (PW5) and Shahid (PW7) is of no help to the case of prosecution inasmuch as testimony of PW3 found to be unreliable and unworthy of credence, whereas PW5 and PW7 are not the witnesses of incident. 40 In view of above analysis of testimony of PW3, PW5 and PW7, I am of the considered opinion that prosecution has failed to prove the identity of accused persons being the assailants. The prosecution has further failed to establish beyond reasonable doubt that accused persons inflicted knife blows to the deceased at the spot on the day of incident.
Recovery of knife 41 Case of the prosecution is that when accused Shanu @ SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 21 of 28 Shahrukh was arrested, he made disclosure statement Ex.PW3/H and in pursuance thereof he got recovered knife Ex.P1 from near the wall of Fish Market. It is alleged by the prosecution that this was the same knife with which murder of deceased was committed by the accused persons.
42 It has been argued by Ld. defence counsel that recovery of knife is in dispute as no public witness was associated in recovery of the knife. It is further argued that same was planted upon the accused. It is submitted that the complainant who was the only public witness associated with the recovery of alleged knife, has not fully supported the case of prosecution and has stated that neither any of the accused was arrested in his presence nor any recovery of knife was effected in his presence.
43 Investigating Officer Insp. Om Singh (PW14) has deposed that during investigation, when they reached Kondli Bridge, secret informer gave information that accused involved in the present case were present in their rented premises C/o House of Rajesh in Village Ghazipur. Thereafter, the secret informer took the police party to the house of Rajesh and pointed out the house. PW14 and SI Rahul with complainant Ziyauddin and other staff conducted raid where both SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 22 of 28 the accused persons were apprehended. They were arrested vide memos Ex.PW3/J1 and J2 and their personal searches were conducted vide memos Ex.PW3/K1 and K2. Accused Shanu got recovered knife Ex.P1 used in the crime from near a wall of Fish Market. Its sketch Ex.PW3/B was prepared and it was taken into possession vide memo Ex.PW3/C. 44 During cross examination, Insp. Om Singh (PW14) stated that he did not record the statement of landlord of accused Babu and Shanu. He further stated that people from the vicinity were not joined in the arrest of accused persons. Similar was his reply with regard to landlord and other inmates of the said house. 45 SI Rahul (PW12) who was associated with the IO during arrest of accused persons and recovery of alleged knife by accused Shanu, during his crossexamination, has stated that the landlord of the house of accused Shanu was Rajesh. He further stated that nobody from the vicinity made party to the arrest of Shanu. 46 From the testimony of IO (PW14) and SI Rahul (PW12) it is apparent that public persons were present at the house of accused Shanu when he along with his coaccused was arrested. No effort has been made by the IO to join any independent witness to the SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 23 of 28 arrest of accused persons and recovery of knife. The IO was duty bound to make sincere efforts to join independent witnesses in the recovery of knife.
47 The complainant Ziyauddin (PW3) who was the sole public witness associated in the alleged recovery proceedings of knife, has demolished the case of prosecution. In his crossexamination, PW3 has stated that none of the accused was arrested in his presence nor recovery of knife was effected in his presence. He has also stated that his signatures were taken by the police on some blank papers. He further stated that he could not say on how many papers, police officials obtained his signatures.
48 Keeping in view the statement of the complainant, who was the sole public witness in the alleged recovery of knife by accused Shanu, a doubt is cast about the case put up by the prosecution with regard to manner of arrest of accused persons and recovery of knife by accused Shanu. In similar circumstances, the Division Bench of our Hon'ble High Court in case titled Chander Pal Vs. State 1999 (1) RCR (Criminal) 150 has held that if independent witnesses are not associated in the recovery in pursuance of provisions of Section 27 of the Indian Evidence Act, then such recovery is not reliable. In another SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 24 of 28 case reported in State Vs. Ramesh 1989 II A.D. (Delhi) 42, the Hon'ble Division Bench has held that if public persons are not associated in the recovery then the provisions of Section 100 of Cr. PC are not followed and such recovery becomes doubtful. 49 So far as subsequent opinion Ex.PW8/B of doctor (PW8) with regard to use of allegedly recovered knife in committing murder of deceased is concerned, it is of no help to the prosecution as the recovery of knife at the instance of accused Shanu has not been convincingly established nor the role of accused in committing murder of deceased has been clearly established.
50 The report of FSL expert Ex.PW13/A shows that blood was detected on blood samples collected from the spot and clothes of deceased. As per Biological report Ex.PW13/B, blood of 'A' group was detected on the underwear of deceased. However, as per DNA report Ex.PW15/A, DNA profile could not be developed for shirts of accused persons and blood of deceased due to degradation/inhibitors. Since only partial DNA profile was developed, comparison could not be made. In this view of the matter, the prosecution cannot get any help from the FSL reports to connect the accused persons with the commission of crime of the present case. SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 25 of 28 51 Consequently, it is held that prosecution has failed to prove beyond reasonable doubt recovery of knife at the instance of accused Shanu @ Shahrukh.
Conclusion 52 The prosecution has failed to establish on record beyond reasonable doubt that accused persons were present at the spot at the time of incident or they committed the murder of deceased Sabbir. The case of the prosecution is solely rests upon the testimony of alleged eye witness/complainant Ziyauddin (PW3). This witness has made inconsistent testimony. There are material contradictions and improvements in the testimony of PW3. In his crossexamination, he has completely demolished the case of prosecution during which he has stated that at the time of incident, he was inside his house and came out of his house on hearing the noise of quarrel. When he came out, he found his servant Sabbir in a pool of blood. He has also stated that he had not seen anyone assaulting or stabbing the deceased. He also stated that he had not witnessed the incident. 53 The complainant (PW3) has also stated that his signatures were taken by the police on some blank papers. He further stated that he could not saw o how many papers, police officials SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 26 of 28 obtained his signatures. The testimony of complainant has created a serious doubt about the case of prosecution. As per his testimony, his signatures were obtained by police on blank papers. The testimony of complainant is not reliable and trustworthy.
54 Apart from complainant (PW3), the prosecution also examined two other public witnesses PW5 Mohd. Shaqil and PW7 Shahid. As per testimony of PW5 and PW7, they are not the eye witnesses of the incident. They had not seen the deceased being assaulted by anyone. As per these witnesses, they had seen the deceased in the street in a pool of blood when they came out of Masjid. Though PW7 has stated that he had seen the accused persons running in the street, but he has not seen the accused persons assaulting the deceased. Therefore, the testimony of these witnesses is of no help to the prosecution to connect the accused persons with the offence of the present case.
55 The prosecution has also failed to prove beyond reasonable doubt the recovery of knife at the instance of accused Shanu @ Shahrukh allegedly used by him in the commission of murder of deceased. No independent public witness was associated with the recovery of said knife. The sole public witness associated in SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 27 of 28 the recovery of the knife is the complainant (PW3) but he has not supported the case of prosecution during crossexamination. He has stated that neither any of the accused was arrested in his presence nor recovery of knife was effected in his presence.
56 The prosecution has also failed to bring any other material or evidence on record to establish that accused persons gave knife blows on the person of deceased on the day of incident, which ultimately resulted into death of the deceased. 57 In view of the foregoing discussion, both the accused persons, namely, Shanu @ Shahrukh and Babu @ Mohd. Azam are hereby acquitted from the charge framed against them under Section 302/34 IPC.
58 Both the accused, in judicial custody, be released forthwith subject to compliance of Section 437A of Cr.P.C., if not required in any other case.
Announced in the open Court ( P.S. TEJI )
Dated: 21.10.2014 District & Sessions Judge (East)
Karkardooma Courts, Delhi
SC No.17/2012 State vs Shanu @ Shahrukh etc. Page 28 of 28