Delhi District Court
State vs Kishan Lal @ Kartik Ors on 26 October, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC)-02,
SOUTH DISTRICT, SAKET COURTS, DELHI
PRESIDED OVER BY : SH. VISHAL PAHUJA
CNR No. DLST01-000671-2014
SC NO. 7008/2016
STATE V. Kishan LAL @ KARTIK AND OTHERS
FIR NO. 524/14
PS: AMBEDKAR NAGAR
U/S: 302/307/148/120B IPC
AND U/S 25/27/54/59 ARMS ACT
State
Versus
1. Kishan Lal @ Kartik,
s/o S/o Sh. Hira Lal,
r/o H.no. H-1st/295,
Madangir, New Delhi
2. Shahrukh,
s/o Sh. Ishaq,
r/o H.no. G-1st/205,
Madangir, New Delhi.
3. Amit,
s/o Sh. Veerpal,
r/o H.no. F-212,
Dakshinpuri, New Delhi.
.... Accused Persons
DATE OF INSTITUTION : 29.10.2024
DATE OF RESERVING JUDGMENT : 19.10.2024
DATE OF JUDGMENT/ ORDER : 26.10.2024
FINAL ORDER : Acquitted
JUDGMENT
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused persons namely Kishan Lal @ Kartik, Shahrukh and Amit pursuant to charge sheet filed by police station Ambedkar Nagar U/s 302/307/148/120B Indian Penal Code (hereinafter referred to as FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 1 of 35 IPC) and u/s 25/27/54/59 of The Arms Act subsequent to the investigation carried out by them in FIR No. 524/14.
2. Brief facts of the case are that on 05.08.2014 an information was received by SI A.K. Jha vide DD no. 33A regarding stabbing and firing incident. SI A.K. Jha along with HC Mukesh reached at the spot i.e. Sonar Market, Shop no.
A-21, Madangir where they found one Hero Splendor Motor Cycle no. DL9SY9417 lying and blood was found scattered inside and outside the said shop. On enquiry, it was found that the injured has been shifted to AIIMS Trauma Centre by PCR van. Thereafter, SI A.K. Jha reached at AIIMS Trauma Centre where he received DD no. 54B qua MLC no. 442660/14 of injured Sachin who was brought dead. Sh. Ram Singh, brother of the deceased was present at the AIIMS Trauma Centre whose statement was recorded by SI A.K. Jha.
3. As per the statement of Sh. Ram Singh, while he was going towards Sunar Market, Madangir at about 03.00 PM and when he reached at Shop no. A21, Sunar Market, he saw his brother Sachin along with his friend was coming from Center Market on a motorcycle. Complainant was standing at shop no. A21 and he saw 4-5 boys including CCL 'S @ C', Shahrukh, CCL 'S' and other boys whom he already knew having knives and pistol in their hands were coming from front and shouting 'maaro maaro' and going towards Center Market. All the aforesaid boys stopped the motorcycle of deceased Sachin and inflicted injuries upon him by stabbing knife several times. The FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 2 of 35 pillion rider of the motorcycle ran away from the spot. In order to save his life, brother of complainant i.e. deceased Sachin ran inside the shop A21 and there also all the said boys followed him and again stabbed him with knives. On hue and cry raised by Sh. Ram Singh all the boys fled away from the spot. Someone from the crowd called at 100 number. Complainant put his brother in auto and while he was heading towards the hospital PCR van reached there and took him to Trauma Center where he was declared brought dead by the doctors. On the basis of the statement of the complainant i.e. Ex. PW3/A, present FIR was registered.
4. During the investigation, accused persons were arrested and the weapons of offence were recovered from their possession. The investigating agency seized various exhibits during the investigation, obtained forensic opinions and recorded statement of the witnesses. After the conclusion of the investigation carried out in the FIR no. 524/14, police filed the charge sheet against the accused persons namely Kishan Lal Kartik, Shahrukh and Amit for commission of offence U/s 302/307/148/120B IPC and u/s 25/27/54/59 of The Arms Act.
5. Vide Order dated 05.11.2014 Ld. Metropolitan Magistrate concerned took cognizance of the offences. The accused persons were called upon to face the trial. Accordingly, they were supplied with the charge sheet and other relevant documents in compliance to section 207 Code of Criminal Procedure (hereinafter referred as Cr.P.C.). Thereafter, the FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 3 of 35 present matter was received by way of committal to the Court of Sessions on 17.11.2014. A supplementary charge sheet was also filed at a later stage before the Court of Sessions. Copy of the same was supplied to the accused persons.
CHARGE
6. Vide order dated 26.08.2015, charge for the offences punishable u/s 120B/148/302/307 IPC r/w section 149 IPC was framed by the Ld. Predecessor of this Court against the accused persons namely Kishan Lal @ Kartik, Amit and Shahrukh and separate charges for the offence punishable u/s 25/27 of The Arms Act were framed against accused Shahrukh and Amit to which they pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
7. Prosecution examined total 17 (seventeen) prosecution witnesses (hereinafter referred to as PW) in order to prove its case in the Court.
8. PW1 Sh. Rajender Singh was the witness to the dead body identification of deceased Sachin. Dead body identification statement is Ex. PW1/A. PW1 was cross examined on behalf of accused.
9. PW2 Sh. Chanderbhan deposed that on 05.08.2014 at about 02.30 or 03.00 PM, he came to know that his cousin Sachin FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 4 of 35 was stabbed by 4-5 boys at Central Market, Madan Gir. PW2 further deposed that he immediately rushed towards the side of H-I and saw that some boys were firing there. PW2 further deposed that in the meantime, he received information from his another cousin namely Sh. Ram Singh from Trauma Centre that Sachin had expired and thereafter he went to Trauma Centre. PW2 identified the accused persons before the court during trial to be the same persons who were firing at the place of incident. PW2 was cross examined on behalf of accused.
10. PW3 Sh. Ram Singh deposed that on 05.08.2014 at about 03.00 PM he had returned from the market and saw that 4- 5 boys were coming from his back side and his brother Sachin was coming from his front side. PW3 further deposed that all 4-5 boys were shouting 'maaro maaro'. Those 4-5 boys were consisting of accused persons namely Kishan Lal @ Kartik and accused Shahrukh along with other associate namely CCL 'S' and CCL 'S @ C'. PW3 pointed out towards accused persons CCL 'S' and CCL 'S @ C'. being the said boys who came shouting from his back side and assaulted the victim. PW3 further deposed that accused Kishan Lal @ Kartik along with his other associates were armed with knives and pistol. PW3 further deposed that his brother was on bike along with one other boy namely Aman @ Lala who ran away from the spot when brother of PW3 was assaulted by accused persons.
11. PW3 further deposed that the accused persons gave knife blows to his brother who fell down from the motorcycle FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 5 of 35 and he ran towards the market and entered into a cloth shop in the name of Jyoti. PW3 further deposed that accused persons along with other associates also entered the said shop forcibly and assaulted his brother with knives. PW3 and other public persons gathered at the spot, raised alarm, meanwhile accused persons ran away from there. PW3 further deposed that someone informed the police but police did not reached there. PW3 further deposed that he lifted his brother into TSR and when they started moving, a PCR van reached at the spot. PW3 transferred his brother/deceased Sachin from TSR in PCR which took him to Safdarjung Hospital where Sachin was declared brought dead. PW3 further deposed that when accused persons were running away from the spot they were waiving their knives and pistol in the air and shouting.
12. PW3 further deposed that one SI came at the hospital and recorded his statement as Ex. PW3/A. PW3 further deposed that at his instance police prepared the site plan of the place of incident and photographs were taken of both the spots i.e. where his brother was assaulted at first and at the cloth shop later. PW3 further deposed that police had lifted blood from the spot and took his blood stained clothes into their possession vide memo Ex. PW3/B. PW3 further deposed that police officials got the case registered. PW3 further deposed that on 06.08.2014 he identified the dead body of his brother in mortuary of Trauma Centre vide statement Ex. PW3/C and the dead body of his brother was handed over to him and his uncle Rajender.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 6 of 35
13. PW3 further deposed that on 18th day, however, month not remembered of the year 2014, he was called for participating in TIP of accused persons and he had identified accused Kartik and CCL 'S'. PW3 further deposed that on 25.09.2014 he was called at Delhi Gate by Insp. Yashwant and he identified accused Amit before the court during trial. PW3 further deposed that after 4-5 days of his visit to Delhi Gate he was called at the spot by the police where the police team was also present and there he pointed out the places and the manner how the incident had taken place. PW3 identified his blood stained clothes as Ex. P1. This witness also deposed that accused persons have also done firing near the house of Mantosh X-1, 125-126 as well as near H.no. E- 1, 273. The photographs are exhibited as Mark A1 to A8. PW3 was cross examined on behalf of accused.
14. PW4 Sh. Mayur @ Deva deposed that he was acquainted with accused persons being residents of the same vicinity. PW4 further deposed that 1.5/2 years back at about 02.30 PM, a quarrel had taken place between him and one boy namely Machhi and his 2-3 associates and they had open fire upon him and his wife and assaulted him. PW4 further deposed that he saved himself and his wife by jumping towards the side of Satsang/Gurudwara and rushed to another house and thereafter, he made a call to the police at 100 number. Police reached there and he was taken to police station. PW4 further deposed that the police officials inquired about the incident as well as about the assailants and shown him CCTV footage and made enquiry from him if anyone of the boys appearing in CCTV footage and thereafter, he told that he knew accused Shahrukh and Kartik. FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 7 of 35 PW6 Ms. Neeru Nagarwal deposed on the same lines as that of PW4 Sh. Mayur @ Deva being his wife. As PW4 and PW6 did not support the case of the prosecution, hence, they were cross examined by Ld. Additional PP for the state with the permission of the court as well as on behalf of accused.
15. PW5 HC Mohan Singh was the duty officer who proved and exhibited on record the copy of DD no. 33A as Ex. PW5/A. PW5 was not cross examined on behalf of accused.
16. PW7 Smt. Neelam deposed that on 5th August, year do not remember, at about 03/04.00 PM she along with her husband was present at the roof of his house and suddenly they heard noise in the gali. PW7 further deposed that they heard a sound of firing and thereafter, they rushed towards balcony and from there they saw that there were 4-5 boys who were having kattas and knives in their hands and they were running in the gali. PW7 further deposed that her husband made a complaint to the police. PW8 Sh. Inder Kumar deposed on the same lines as that of PW7. PW7 and PW8 failed to identify the accused persons and did not support the case of prosecution in its entirety, hence, they were cross examined by Ld. Additional PP for the state with the permission of the court. PW7 and PW8 were not cross examined on behalf of accused.
17. PW9 Sh. Rajesh Kumar deposed that the date and year of the incident not remembered but it was in the month of August at about 4-5 PM when he was inside his house, he heard noise FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 8 of 35 coming from outside and he saw that there was crowd opposite shop no. 21 where a boy was lying inside the shop smeared with blood. PW9 further deposed that as he was the President of the market he made a call at 100 number from his mobile phone no. 9990776778 and after about 15-20 minutes police reached at the spot and took the boy in the PCR van. PW9 further deposed that one boy was present at the spot who was perhaps the brother of the victim or resident of rear gali. PW9 exhibited on record the seizure memo of DVR and AC adopter as Ex. PW9/A and DVR as Ex. PW9/1. PW9 further deposed that after hue and cry, when he reached at the spot, he had seen that five boys were running towards Megha Mall carrying some articles like weapons. As PW8 did not support the case of prosecution in its entirety, hence, he was cross examined by Ld. Additional PP for the state with the permission of the court. PW9 was cross examined on behalf of accused.
18. PW10 Sh. Amar Singh was the registered owner of motorcycle make Hero Honda Splendor bearing no. DL-9SY- 9417 who got released the said motorcycle on superdari vide superdarinama Ex. PW10/A. The copy of his voter ID and PAN card is Ex. PW10/B. PW10 identified the photographs of the said motorcycle as Ex. PW10/C and C1. The motorcycle is Ex. PW10/P1. PW10 was cross examined on behalf of accused.
19. PW11 Sh. Deepak Taneja deposed that his shop is situated at A-21, Central Market, Madangir, New Delhi. PW11 further deposed that he do not remember the date and year FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 9 of 35 however it was the month of August. On the date of incident about 3-4 years ago at around 12-1 PM, he was present at his shop and one boy came in injured condition and fell in his shop. PW11 further deposed that at that time, 4-5 other boys were also present standing there who were having gun and revolver. Those boys started pointing gun on the said injured boy and PW11 went inside the shop and hid himself behind the counter and due to alarm raised by public, the said boys ran away from there. PW11 further deposed that somebody from the market made call at 100 number and PCR reached there and took the injured to hospital. PW11 further deposed that local police officials also came and lifted samples. Later on, he closed his shop and went to his home. PW11 failed to identify the accused persons and did not support the case of prosecution in its entirety, hence, he was cross examined by Ld. Additional PP for the state with the permission of the court. PW11 was cross examined on behalf of accused.
20. PW12 Sh. Rizwan Khan deposed that he was General Secretary of the Central Market Association, Madangir and was also running a jewellery shop. PW12 further deposed that there was a surveillance system in the central market, Madangir and CCTV cameras were installed within the market. The control room of the CCTV camera is situated in the market and the same was in his control and he used to check control room if any CCTV camera was out of order. PW12 further deposed that the police never demanded to provide them any CCTV footage nor he provided. PW12 further deposed that in the year 2014, he was also not asked by the police official to provide any CCTV footage to the police nor he provided the same at the asking of FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 10 of 35 Sh. Rajesh Soni, who was the President of the Market Association. As PW12 did not support the case of prosecution in its entirety, he was cross examined by Ld. Additional PP for the state with the permission of the court. PW12 was cross examined on behalf of accused.
21. PW13 Kamlesh stated that date, month and year of the incident not remembered but on the date of the incident at about 1-1.30 PM, he after hearing the noise came out and saw crowd outside his house where public was talking about some firing incident. PW13 made a call at 100 number through his mobile number 9999272906. PW13 failed to identify the accused persons and did not support the case of prosecution in its entirety, hence, he was cross examined by Ld. Additional PP for the state with the permission of the court. PW13 was not cross examined on behalf of accused.
22. PW14 ASI Deshpal Singh was the duty officer who proved and exhibited on record the copy of FIR as Ex. PW14/A, endorsement on rukka regarding registration of FIR as Ex. PW14/B, certificate u/s 65B of Indian Evidence Act as Ex. PW14/C. PW14 was not cross examined on behalf of accused.
23. PW15 SI Sajjan Kumar exhibited on record the detailed report of scene of crime as Ex. PW15/A. PW15 was cross examined on behalf of accused.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 11 of 35
24. PW16 Insp. A.K. Jha deposed qua his role and manner in the investigation. PW16 deposed that on 05.08.2014 on receipt of DD no. 33A i.e. Ex. PW5/A he along with HC Mukesh reached at the spot i.e. Shiv Shakti Market, Subzi Mandi where he came to know that an incident of firing and stabbing had occurred in the Sonar Market in front of shop no. A21. After reaching there he came to know that the injured has been shifted to AIIMS Trauma Centre. PW16 further deposed that upon reaching Trauma Centre, he received DD no. 54B whereby injured Sachin was declared brought dead. PW16 further deposed that he met eye witness Ram Singh who was the brother of the deceased. Statement of witness Ram Singh was recorded i.e. Ex. PW3/A. PW16 exhibited on record the seizure memo of motorcycle lying on the spot as Ex. PW16/1, blood in stick, earth control, blood stained earth control vide seizure memo Ex. PW16/2.
25. PW16 further deposed that thereafter he along with crime team and complainant reached at H-1st 125/126, Madangir where incident of firing had occurred. On inspection of the spot, two empty cartridge cases were found lying outside the house in the gali, sketch of the same was prepared vide sketch memo Ex. PW16/3 and same were taken into possession vide memo Ex. PW16/4. PW16 further deposed that he prepared tehrir Ex. PW16/5 and got FIR registered. PW16 further deposed that he handed over all the exhibits and case property to IO Insp. Yashwant Singh. PW16 further deposed that IO Insp. Yashwant Singh prepared three site plans i.e. Ex. PW16/6 to Ex. PW16/8, the death report as Ex. PW16/9 and request letter Ex. PW16/10 FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 12 of 35 for conducting postmortem examination of deceased Sachin. PW16 further deposed that proceedings were thereafter conducted qua CCLs S, Amit, S @ C. PW16 further exhibited on record the documents already relied upon by PW1 and PW3. PW16 further deposed that IO arrested accused Kishan Lal @ Kartik and Shahrukh vide memo Ex. PW16/11 and Ex. PW16/12. PW16 further deposed that exhibits were handed by the doctor that were seized vide seizure memo Ex. PW16/13. PW16 identified accused Kishan Lal @ Kartik and Shahrukh before the court during trial. He also identified the case property i.e. motorcycle bearing no. DL-9SY-9417, two empty cartridge case, clothes of complainant, photographs of motorcycle. The clothes are Ex. P1 (Colly). PW16 further exhibited on record the FSL reports as Ex. PW16/P1 (Colly). The empty cartridges are Ex. EC1 and EC2. PW16 was cross examined on behalf of accused.
26. PW17 ACP Yashwant Singh being the investigating officer deposed qua his role and manner in the investigation of the present case. PW17 deposed more or less on the same lines as that of PW16 Insp. A.K. Jha and relied upon the documents already exhibited on record in the testimony of PW1, PW3 and PW16. Apart from that, PW17 exhibited on record sketch of knife recovered from the right dub of the pant of CCL 'S' and accused Amit @ Golu as Ex. PW17/1 and Ex. PW17/3 and seized the same vide memos Ex. PW17/2 and Ex. PW17/4. PW17 further deposed that a pistol was recovered from the possession of CCL 'S @ C' the sketch of same is Ex. PW17/5 and same was seized vide memo Ex. PW17/6. PW17 further deposed that a pistol was recovered from the dub of his co FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 13 of 35 associate CCL 'S' and sketch of the same was prepared vide memo Ex. PW17/7 and same was seized vide memo Ex. PW17/8.
27. PW17 further deposed that accused Kishan Lal @ Kartik was apprehended by Ct. Suresh and on his cursory search, one knife was recovered from his right dub of the wearing pant and its sketch was prepared vide memo Ex. PW17/9 and same was taken into possession vide seizure memo Ex. PW17/10. PW17 further deposed that that accused Shahrukh was apprehended by Ct. Vineet and on his cursory search, one knife was recovered from the left dub of wearing pant of accused Shahrukh and its sketch was prepared vide memo Ex. PW17/11 and same was taken into possession vide seizure memo Ex. PW17/12. PW17 further deposed that he arrested accused Kishan Lal @ kartik and Shahrukh vide memo Ex. PW16/11 and Ex. PW16/12, conducted their personal search vide memos Ex. PW17/13 and Ex. PW17/14 and recorded their disclosure statements vide memos Ex. PW17/15 and Ex. PW17/16 respectively. PW17 thereafter prepared the pointing out memo as Ex. PW17/17. PW17 further deposed that he recorded the statements of witnesses, collected DD entries. PW17 further deposed that MLC of deceased was placed on record as Ex. PW17/18.
28. PW17 also moved an application for obtaining the PCR forms vide application Ex. PW17/19 and collected PCR forms regarding call of present incident as Ex. PW17/20 (Colly). PW17 identified accused persons before the court during trial and FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 14 of 35 also identified the clothes of the complainant already exhibited as Ex. P1 (colly), pistol recovered from accused Shahrukh as Ex. PW17/P1, pistol recovered from CCL 'S' as Ex. PW17/P2, knife recovered from CCL 'S' is Ex. PW17/P3, knife recovered from accused Amit @ Golu as Ex. PW17/P4 and one knife recovered from possession of accused Kishan Lal @ Kartik as Ex. PW17/P5, another knife recovered from the possession of CCL 'S' is Ex. PW17/P6 and DVR is Ex. PW9/1. PW17 was cross examined on behalf of accused.
29. During trial accused persons admitted the genuineness of preparation of documents by recording their statement u/s 294 Cr.P.C. i.e. DD entries no. 35A, DD entries no. 35A, 36A, 42A, 43A, all dated 05.08.2014. All are exhibited as Ex. A1 (Colly-running into 4 pages), DD entry no. 9A dated 06.08.2014. Same is Ex. A2, DD entry no. 2B dated 07.08.2014. Same is Ex. A3, Photographs (8 in numbers) along with negatives. Same are exhibited as Ex. A4 (colly), TIP proceedings of accused Kishan Lal @ Kartik conducted by Ld. Metropolitan Magistrate. Same is Ex. A5 (running into 3 pages), PM report of Sachin bearing no. TC480/14. Same is Ex. A6, Date of birth certificate of accused Amit along with pasting file. Same is Ex. A7 (running into 6 pages), TIP proceedings of accused Amit conducted by Sh. Dinesh Kumar, Ld. Metropolitan Magistrate. Ex. A8 (running into 4 pages), 3 acknowledgments of case acceptance by FSL along with three respective road certificates running into 6 pages. Same are Ex. A9 (Colly), Date of birth certificate of accused Shahrukh alongwith pasting file. Same is Ex. A10 (running into 13 pages), date of birth certificate of accused Kishan Lal @ Kartik alongwith pasting file. Same is Ex. A11 (running into 10 pages), FSL report bearing no.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 15 of 35 SFSL-DLH-4539-CO-586-19 dated 30.07.2019 prepared by Dr. V.S. Pandhare. Same is Ex. A12 (running into 2 pages), Scaled site plan prepared by Insp. Mahesh Kumar. Same is Ex. A13, Sanction u/s 39 of Arms Act dated 01.04.2015 prepared by Sh. Chandan Chaudhary. Same is Ex. A14 (running into two pages), FSL report bearing no. FSL-2014/F-7122 dated 13.02.2015 prepared by Dr. N.P. Waghmare. Same is Ex. A15 (running into three pages), FSL report bearing no. FSL-2014/DNA-7249 dated 25.02.2015 prepared by Dr. L. Babyto Devi). Same is Ex. A16 (running into 3 pages), Road certificate bearing no. 67/21/15. Same is Ex. A17, opinion given by Dr. Mahesh Kumar from the department of forensic medicines, AIIMS dated 02.04.2015 as Ex. FA1, FSL report no. 2014/P- 7139/PHY-333/14 dated 29.06.2015 as Ex. FA2.
30. Prosecution did not wish to examine any other witness, hence in view of the submissions made by Ld. Additional PP for the state, PE was closed vide order dated 24.09.2024.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
31. Statement of accused persons were recorded separately U/s 313 Cr.P.C in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them. It is stated by accused persons that they have been falsely implicated in the present case. They are innocent and have nothing to do with the present case. Accused persons opted not to lead any defence evidence.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 16 of 35 ARGUMENTS:
32. Ld. Additional PP for State has argued that prosecution witnesses have supported the case of prosecution and their testimony have remained unrebutted. The forensic evidence lead on record has also corroborated and supported the case of prosecution that connects to the culpability of the accused persons. The weapons of offence have also been recovered from the possession of the accused persons. That on a combined reading of testimony of prosecution witnesses, offences U/s 120B/302/307/148 IPC r/w section 149 IPC and u/s 25/27 of the Arms Act are proved against the accused persons beyond reasonable doubt.
33. On the other hand, Ld. Counsel for accused persons has argued that there is no legally sustainable evidence against the accused persons. It is further argued that the testimony of star witness Ram Singh is not trustworthy as it contained material discrepancies and his presence on the spot is highly doubtful. It is further argued that the accused persons have been falsely implicated in this case and the weapons of offence are also planted them and as such the recovery shown to have been effected has not been proved beyond reasonable doubt. It is further stated that all the independent public witnesses have turned hostile and not supported the case of the prosecution. The prosecution has failed to prove its case beyond reasonable doubt, thus, on the aforesaid grounds accused persons deserves to be acquitted.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 17 of 35 FINDINGS:
34. Arguments adduced by Ld. Additional PP for State and Ld. Defence Counsels for the accused persons have been heard. Evidences and documents on record perused carefully.
35. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused persons have been indicted for the offences u/s 120B/302/307/148 IPC r/w section 149 IPC and u/s 25/27 of The Arms Act. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused persons not guilty for any offence charged herein and they deserve acquittal for the following reasons:-
36. The case of prosecution is based upon direct evidence and several public witnesses have been examined by the prosecution in this case out of which the cousin brother of the victim i.e. PW3 Ram Singh is the star witness of the prosecution being the eye witness on whose testimony the prosecution has heavily relied upon. Before proceeding with the discussion of other public witnesses, this court deems it appropriate to take the testimony of PW3 Ram Singh first for the purpose of appreciation. Bare perusal of the testimony of PW3 reveals that there are material discrepancies and infirmities in his version recorded at different stages which renders his testimony highly doubtful and does not inspire the confidence of the court to act upon. It is also to be noted that the identity of the accused FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 18 of 35 persons by PW3 also could not be established beyond reasonable doubt.
36.1. First and foremost, PW3 in his examination in chief has not categorically identified the accused persons by their name and face. Further, PW3 pointed out two of the accused persons present in court as CCL 'S' and 'S @ C' during his examination in chief whereas both the CCLs were not present in the court.
PW3 in his previous statement Ex. PW3/A stated to have known to the accused persons well before the incident whereas during his cross examination he denied to have seen them prior to the incident. He further stated that he is not able to connect the faces of the accused persons with their names. This is a major variation in the stand of PW3 as per as identity of accused persons is concerned.
36.2. Further, PW3 in his examination in chief stated that on 25.09.2014 he was called by the IO at Delhi Gate where he identified accused Amit in the court. It is pertinent to note that during TIP proceedings pertaining to accused Amit conducted on 11.08.2014, PW3 failed to identify him as the assailant. Further, the date given by PW3 qua the identification of accused Amit is also of variance. Nowhere PW3 has identified accused Amit by face in his deposition.
36.3. PW3 stated in his examination in chief that on the 18 th day, month not remembered in the year 2014, he was called for participation in TIP proceedings of accused Kartik and CCL 'S' who are present in the court today also were identified by him in the TIP proceedings. It is relevant to note that the CCL 'S' was not present in the court when examination in chief of PW3 was FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 19 of 35 recorded nor PW3 has identified the accused Kishan Lal @ Kartik in TIP proceedings as no TIP proceedings pertaining to him were conducted during investigation as he refused to participate in the same so the statement of PW3 to this effect is found to be false.
36.4. Further, PW3 in his examination in chief, while answering to the leading question put by Ld. Additional PP for the state stated that he identified accused Shahrukh, Kartik and CCL 'S' and 'S @ C' by visiting Delhi gate. It is important to note that accused Shahrukh and Kartik were never produced before the Juvenile Justice Board at Delhi Gate and being major they were produced before the District Court, Saket at the first instance, so the statement of PW3 claiming to have identified accused Shahrukh and Kartik at Delhi gate also turns out to be false.
36.5. At one place in his examination in chief PW3 stated to have seen and identified accused Kishan @ Kartik on 04.09.2014 when he was being produced by SI A.K. Jha in the court whereas during his cross examination PW3 stated to have seen accused Kishan Lal @ Kartik in the police station after two three days of the incident which is again a contradictory statement made by PW3. Another contradictory statement made by PW3 during his cross examination is that he was called by the police in the police station after 2-3 days of the incident after the arrest of the accused persons and thereafter he never met or saw the accused persons till he came before the court for his deposition. Meaning thereby his claim of identifying accused Kishan Lal @ Kartik on 04.09.2024 is false. This statement of PW3 is incomplete FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 20 of 35 contradiction to his claim of identifying the accused Kishan Lal @ Kartik on 04.09.2014 and also none of the police witness has corroborated the fact of PW3 visiting police station after 2-3 days of incident or identifying the accused there.
36.7. During his cross examination PW3 stated that name of accused Shahrukh came to his knowledge from the people in the market as they told him about his involvement in the incident after about 2-3 days of the incident and he further told the police about the names of the assailants after 2-3 days of the incident. This statement of PW3 coupled with the admission that he saw CCTV footage of the incident in television in different news channels makes it doubtful that PW3 witnessed the incident himself and it appears that he identified the accused Shahrukh only upon getting information from the people in the market or from the CCTV footage which he saw in news channels.
37. The aforesaid contradictory statements and the discrepancies in the statements of PW3 clearly shows that PW3 has not been able to identify the accused persons beyond reasonable doubt.
38. Apart from the aforesaid statements there are other material discrepancies and infirmities that have appeared in the testimony of PW3 which indicates and probablizes the absence of the PW3 on the spot at the relevant point of time when the incident took place and it does not rule out the possibility of introduction of the PW3 as eye witness to the incident at a later stage.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 21 of 35 38.1. First and foremost, PW3 admitted during his deposition that he is not visible in the CCTV footage that captured the incident which negates his presence at the spot. Secondly, PW3 admitted during his cross examination that he did not make any call to the police or his family members during the period of assault and also did not intervene to save his deceased cousin brother Sachin which seems to be very surprising and unusual as even if it is considered that PW3 was scared to intervene in the assault but he admittedly had the mobile phone with him from which he could have made call to the police or his family members seeking help to save the deceased but he did not do so. PW3 stated nothing as to what presented him to seek help by making phone call to police and others. The aforesaid circumstances creates doubt in the presence of PW3 on the spot.
38.2. The absence of the PW3 is also probable from the fact that the IO who claimed to have prepared the site plan Ex. PW16/7 at the instance of PW3 has failed to reflect the position of PW3 in the site plan from where he witnessed the incident. PW11 Deepak Taneja who was present in his shop where the deceased was assaulted has categorically stated during his cross examination that none of the relative or family member of the accused came there at the time of incident. Similarly, PW9 Rajesh Kumar Soni during his cross examination stated that none of the persons present in the crowd had claimed to be the relative of injured. Thus, in view of the above also a doubt is created regarding the presence of PW3 at the place of incident.
38.3. Further, PW3 in his previous statement Ex. PW3/A stated to have witnessed the incident of assault while he was FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 22 of 35 standing in front of Shop no. A-21 whereas on the contrary during his examination in chief PW3 stated to have been present at a distance of 22 sq. yards from the place and in his cross examination the distance is stated to be 32 sq. yards from the place where incident took place. Admittedly, the incident of assault took place in front of and in the shop no. A-21 so claim of PW3 being present at the spot becomes doubtful in view of the his admission that he is not visible in the CCTV footage capturing the incident of assault 38.4. Further, PW3 in his examination in chief has stated that accused persons were coming from his back side whereas in his previous statement Ex. PW3/A he stated that they were coming from front side. During cross examination, PW3 could not tell as to who was the person or which of the accused had given first knife blow to the victim. PW3 during his cross examination stated that he along with the help of his tauji Amar Singh picked up the victim from the spot and put him into the TSR whereas PW10 Amar Singh has not stated anything about his presence in his testimony nor corroborated the version of PW3 which further makes the presence of PW3 doubtful.
38.5. PW3 during his cross examination stated that police did not meet him on the day of incident either at the spot or in the hospital and further stated that police recorded his statement regarding the incident at the police station. This statement of PW3 is contrary to his claim made in his examination in chief whereby he stated that one sub inspector reach in the hospital and made inquiry from him and recorded his statement. PW3 during his cross examination stated that police has recorded his FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 23 of 35 statement only once at the police station but he do not remember the date and he do not remember after how many days it was recorded and he further admitted that his statement was not recorded on the day of incident. The aforesaid statements made by PW3 are major variations with respect to his place and time of recording of the statement by the police and this inconsistency goes to the root of the case of the prosecution affecting its credibility.
39. Ld. Additional PP for the state has argued that the FSL report Ex. A12 shows that DNA of blood stained clothes Ex. P1 of the complainant Ram Singh matched with that of the deceased which shows the presence of the complainant at the spot. No doubt the FSL report Ex. A12 has not been disputed or disproved by the accused persons but this is only a corroborative piece of evidence which does not conform with the testimony of PW3 in view of material infirmities. It is admitted by PW3 during his cross examination that his residence was less than half a kilometer away from the place of incident and it is possible that he came at the spot after the incident happened and while taking the injured to the hospital his clothes got blood stains but beyond reasonable doubt it cannot be said that his presence is established at the time of happening of the incident. It is also pertinent to note that PW3 in his previous statement recorded u/s 161 Cr.P.C. stated that the police lifted the exhibits and seized at the spot in his presence but none of the seizure memo pertaining to the exhibits seized at the spot bears the signatures of PW3 as the witness. Even the site plan exhibited as Ex. PW16/7 which allegedly prepared by the IO at the instance of PW3 does not FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 24 of 35 bear his signatures.
40. The discrepancies, infirmities and contradictions appearing in the testimony of PW3 as discussed in preceding paragraphs are material enough to demolish the root of the case of prosecution and renders the testimony of PW3 as blemished, tainted and full of doubts resulting in loosing its credence. Thus, the argument of Ld. Additional Public Prosecutor does not hold much merits.
41. The other material witness examined by the prosecution is PW2 Chander Bhan. As per this witness he has seen the accused persons firing in front of H.no. H-1 while they were running away from the place where deceased was assaulted. There are material discrepancies and contradictions in the version of PW2 that have appeared during his cross examination which makes his testimony highly unreliable.
41.1. PW2 in his examination in chief stated that when he came to know that his cousin Sachin has been stabbed by 4-5 boys at Central Market Madangir, he immediately rushed towards the side of H-1 and saw that some boys were firing there. On the contrary, PW2 in his previous statement recorded u/s 161 Cr.P.C. claim to have directly reached trauma Centre on having the information about the incident. The aforesaid contradiction is a material contradiction which creates doubt in the version of PW2 regarding witnessing the accused persons firing near H-1.
41.2. Further, PW2 stated in his examination in chief that he received information from his cousin Ram Singh from Trauma FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 25 of 35 Centre that Sachin has died but this fact has not been corroborated by PW3 in his testimony as nowhere he stated to have called Chander Bhan informing about the death of Sachin rather, PW3 during his cross examination stated that Chander Bhan came to know about the incident from other persons. During his cross examination PW2 stated to have received second call from Ram Singh after about 10-15 minutes when he had seen firing incident but again this fact has not been corroborated by the testimony of PW3 Ram Singh.
41.3. In his examination in chief, PW2 stated to have directly gone to Trauma Centre after receiving call from Ram Singh whereas during his cross examination PW2 stated that after seeing the firing incident he had gone to his house from where he along with his father went to AIIMS Hospital. There is major variation in the sequence of events as stated by PW2 in his testimony.
41.4. During cross examination, PW2 was confronted with his previous statement Ex. PW2/DA where the fact of witnessing the firing incident as stated in his examination in chief was not found recorded therein. Hence, it is a major improvement made by PW2 in his deposition. PW2 could not tell the name of the accused persons present in the court and admitted to have identified them since they were standing in front of them. PW2 further could not tell as to which of the accused was firing when questioned during cross examination. PW2 further admitted during cross examination that he had not stated to the police in his statement that he can identify the assailants nor did he make any call to the police after seeing the firing incident.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 26 of 35
42. The aforesaid discrepancies, infirmities and contradictions appearing in the testimony of PW2 are material enough to wash away his credibility, thus cannot be relied upon.
43. Prosecution has examined independent public witnesses regarding the firing incident and the assault that is PW4 Mayur @ Deva, PW6 Neeru Nagarwal, PW7 Neelam, PW8 Inder Kumar, PW11 Deepak Taneja and PW13 Kamlesh. None of the aforesaid public witnesses have identified the accused persons as assailants in this case in their deposition.
43.1. PW4 was cross examined by the accused and during his cross examination this witness categorically stated that none of the accused present in this court were involved in the incident that took place on 05.08.2014 at about 2.15 PM. This witness was also cross examined by the Ld. Additional PP for the state whereby he reiterated his denial qua the role of the accused persons in this case. Similarly, PW6 Neeru who is the wife of PW4 also failed to identify the accused persons as the assailants in this case. She denied telling the name of any assailant to the police as she was not acquainted with them. During her cross examination by the Ld. Additional PP for the state as well she denied the role of the accused persons as the assailants in this case.
43.2. PW7 Neelam in his examination in chief failed to identify the accused persons as the boys whom she claimed to have seen firing while running in the gali. During her cross examination, by the Ld. Additional PP for the state also she failed to identify the accused persons. Similarly PW8 Inder FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 27 of 35 Kumar, husband of PW7 also failed to identify the accused persons as those boys whom he saw running in the gali after firing.
43.3. PW11 Deepak Taneja in whose shop no. A-21 the deceased was assaulted by the accused persons also failed to identify the accused persons as the assailants in this case. He further categorically denied in his examination in chief the fact that police recorded his statement and also denied that police made any enquiries from him. PW11 was also cross examined by the Ld. Additional PP for the state and during the same also he categorically denied the role of the accused persons being the assailants in this case.
43.4. PW13 Kamlesh is also claimed to the witness to the firing incident has categorically denied seeing any person making firing or having any weapon while recording his examination in chief. During his examination by the Ld. Additional PP of the state he was asked about the identity of the accused persons to which he replied that he has never seen them at any occasion.
44. In view of discussion above it can be seen none of the independent public witness examined by the prosecution has supported the case of the prosecution on material aspects including the identity of the accused persons being the assailants. Thus, their testimony is also of no help to the case of prosecution.
45. Apart from the ocular evidence, prosecution has relied upon electronic evidence in the form of CCTV footage in which FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 28 of 35 the incident was captured. Two witnesses namely PW9 Sh. Rajesh Kumar Soni and PW12 Rizwan Khan were examined in this regard but bare perusal of their testimony reveals that they did not support the case of the prosecution in any manner as they turned hostile completely.
45.1 PW9 Rajesh Kumar Soni in his examination in chief stated that police obtained his signatures on the bottom of one plain/blank paper in the police station which as per prosecution is the seizure memo of DVR and AC adopter exhibited as Ex. PW9/A. During his examination in chief, PW9 categorically denied signing the seizure memo of the DVR and he also denied seeing the faces of those boys who were running away as captured in the CCTV footage contained in DVR. Further, during his cross examination by the accused, PW9 again admitted to have not witnessed any seizure made by the police at the spot. This witness even could not state with certainty if the DVR Ex. PW9/1 was given to the police or not. Thus, in view of the discussion above, testimony of PW9 cannot to be said to be of any help to the case of prosecution.
45.2 PW12 Rizwan Khan who is also one of the witness to the seizure memo Ex. PW9/A also denied his signatures on the said document when his attention was drawn to the same. PW12 in his examination in chief specifically stated that police never demanded any CCTV footage nor he provided the same. He also denied to have recorded his statement before the police at any stage in the present case. This witness was cross examined by Ld. Additional PP for the state and during his cross examination he was confronted with the DVR to which PW12 stated that the said FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 29 of 35 DVR does not belong to the market and it was never seized by the IO in his presence. PW12 further stated that DVR is still installed in the market till date. PW12 was cross examined by the accused and during his cross examination PW12 stated that he did not see any CCTV footage containing, stabbing or assaulting incident nor any DVR was given to the police. Thus, the deposition of PW12 also failed to support the case of the prosecution in any manner. Thus, in view of the deposition of PW9 and PW12 the seizure of DVR cannot be said to be proved beyond reasonable doubt.
45.3 Further, DVR PW9/1 was run on computer system during the recording of deposition of PW17 ACP Yashwant Sival but no video data could be seen or traced despite best efforts by the court staff (computer branch). The DVR was sent to FSL for forensic examination during the investigation. As per the report Ex.A12 dated 30.07.2019, the data could not be retrieved from the DVR or the hard disk made available to the forensic lab. As such the CCTV footage contained in the DVR was never able to be played in the court during the evidence nor it could be proved in accordance with law. Hence, the electronic evidence relied by the prosecution is also found to be of no help to the case of the prosecution.
46. Now coming to the aspect of recovery of the weapon of offence from the accused persons at the time of their arrest. As per the prosecution, desi katta Ex.PW17/P1 was recovered from the possession of accused Shahrukh vide seizure memo Ex. PW17/12, one knife Ex. PW17/P4 was recovered from the FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 30 of 35 possession of accused Amit vide seizure memo Ex. PW17/4, another knife Ex. PW17/P6 was recovered from the possession of accused Kishan Lal @ Kartik vide seizure memo Ex. PW17/10 The seizure memos does not bears the signatures of any independent public persons. No sincere efforts were made by the police to join the independent public persons in the recovery proceedings. In absence of joining of any public witness to the recovery proceedings, the recovery of desi katta, pistol and knife cannot be said to be proved beyond reasonable doubt. In this regard reliance is being placed on the case law reported as "Anoop Joshi Vs. State" 1992(2) C.C. Cases 314(HC) wherein it has been held that :
"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
47. Hence, in view of discussion above the recovery of the weapons of offence cannot be said to be proved beyond reasonable doubt. As the recovery of the pistol and knife has not been proved beyond reasonable doubt from the possession of FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 31 of 35 accused persons namely Shahrukh and Amit, the ingredients of offence u/s 25/27 of The Arms Act could not be proved. Thus, no offence u/s 25/27 of the Arms Act could be established on record against the accused Shahrukh and Amit.
48. Moreover, as per the FSL report Ex. A15, the two empty cartridge cases EC1 and EC2 that were seized during the investigation vide seizure memo Ex.PW16/4 were not found to be capable of chambering and firing from the country made pistol 'F1' which was seized from accused Shahrukh. Thus, the FSL report does not attribute any connection with the weapon of offence recovered from the accused Shahrukh in this case.
49. PW16 Insp. A.K. Jha in his examination in chief stated that he recorded the statement of the complainant Ram Singh whereas during his cross examination he denied to have recorded the statement of complainant himself and said that the IO might have recorded the same. This statement of PW16 also is a major discrepancy with respect to the presence of complainant Ram Singh at the time of incident. Further PW16 admitted during his cross examination that there is no reference in the MLC of injured regarding being brought by or admitted by his brother Ram Singh in the hospital. Now if the complainant has accompanied or took the injured to the hospital and got him admitted then the name of Ram Singh could have been depicted in the MLC which is not the case herein. This also creates doubt qua his presence. There is another major contradiction in the version of PW16 as during his cross examination he stated that FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 32 of 35 complainant Ram Singh identified the accused Shahrukh as assailant outside the court room when he was being produced before the Ld. Magistrate concerned but this fact was not found recorded in his previous statement recorded u/s 161 Cr.P.C. when confronted during his cross examination. Thus, this contradiction also creates doubt if the complainant Ram Singh identified the accused Shahrukh during the investigation.
50. PW17 IO ACP Yashwant Sival during his cross examination stated that except recording the statement of Ram Singh and his signatures on the seizure memo of the blood stained clothes, he was not made attesting witness to any other proceedings. PW17 failed to explain as to why he did not join the complainant Ram Singh as witness to the seizure memos vide which the exhibits were lifted at the spot including the old empty cartridge cases. PW17 further admitted during his cross examination that the site plan prepared by him at the instance of complainant Ram Singh Ex. PW16/7 does not bear the signatures of Ram Singh nor his position is reflected therein. PW17 also admitted the same status with respect to other two site plans prepared at the instance of respective witnesses namely Mantosh and Mayur @ Deva. PW17 stated during his cross examination that no CDR of witness Ram Singh was obtained by him to establish his presence at the spot. The aforesaid discrepancies in the version of PW17 as discussed above also creates doubt in the manner of investigation as well as qua the presence of PW3 Ram Singh.
FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 33 of 35
51. The testimony of star witnesses examined by the prosecution are not of sterling character as there are material variations in their testimony so their testimony cannot be relied upon. Reliance is placed upon the judgment passed by Hon'ble Apex Court in case titled as Rai Sandeep alias Deepu v. State of NCT of Delhi AIR 2012 Supreme Court, 3157 . In view of the material discrepancies appearing in the testimony of the eye witnesses and other prosecution witnesses including the lapses on the part of investigating officer, the whole story of the prosecution has become improbable under the cloud of doubts. The variations and contradictions appearing in the testimonies as discussed above affects the root of case of the prosecution and are material enough to demolish its credibility. The testimony of the star witnesses containing material discrepancies does not inspire the confidence of the court to act upon.
52. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt if any in the prosecution story and such reasonable doubt entitles the accused to acquittal.
53. In view of the material inconsistencies as discussed above, this Court is of the view that prosecution has failed to prove its case beyond reasonable doubt. Hence, the benefit of FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 34 of 35 doubt is liable to be extended to the accused persons. Therefore, the accused persons namely Kishan Lal @ Kartik, Shahrukh and Amit are hereby acquitted of the charges levelled against them in the present case.
Digitally signed by VISHAL VISHAL PAHUJA Date: PAHUJA 2024.10.26 15:18:27 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 26.10.2024 ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS
Containing 35 pages all signed by the presiding officer.
Digitally signed by VISHALVISHAL PAHUJA PAHUJA Date:
2024.10.26 15:18:33 +0530 (VISHAL PAHUJA) ASJ (FTC) -02 SOUTH DISTRICT SAKET COURTS FIR no. 524/14 State v. Kishan Lal @ Kartik and others Page no. 35 of 35