Delhi District Court
State vs Mohd. Illiyas S/O Late Mohd. Zahiruddin ... on 12 August, 2014
IN THE COURT OF SH. DINESH BHATT, ASJ07 (CENTRAL)/ TIS
HAZARI COURTS, DELHI
Sessions Case No.:34/14
Unique ID no.:02401R0061042014
State Vs Mohd. Illiyas S/o Late Mohd. Zahiruddin R/o H. No. 2263, Katra Chandi
Wali, Turkman Gate, Delhi
Case arising out of:
FIR no. : 73/13
Police Station : Chandni Mahal
Under Section : 302/34 IPC
Date of Institution : 21/01/2014
Date on which order was reserved : 02/08/2014
Date of Decision : 12/08/2014
J U D G M E N T:
1. This is a case U/s 302 IPC r/w section 34 IPC.
2. The case of the prosecution is that on 12/05/2013 at about 06:42 p.m. they received a complaint about stabbing of a person near Gali Chamrewali near Chitli Kabar Turkman Gate. PCR was deputed. Police reached the spot and found blood on the ground and it was told that the victim had been taken to LNJP hospital. Police reached LNJP hospital where MLC was received with history of physical assault/stab on 12/05/2013 at 05:30 p.m. The victim was having lacerated incised would on center of chest. IO returned to SC no.:34/14 Page 1/16 the spot, crime team was called, photographs were taken, earth control and blood sample were converted into sealed parcel. IO returned to LNJP hospital where victim was unfit for statement. Mohd. Asim being eye witness gave his statement that when he was coming out of his house he saw Uber son of Illiyas having fight with Mohd. Mehmood (deceased). Suddenly Uber hit the victim with knife on his chest and ran away. He tried to catch him but was unable to apprehend him. The victim was bleeding profusely. Accordingly, he picked him up and called his brother Asif. Thereafter, they took the victim to LNJP hospital. Consequently, case U/s 307 IPC was registered. Thereafter, IO prepared site plan, FIR was lodged. Mohd. Uber (JCL) was searched but was not found. The Doctor at LNJP hospital had handed the clothes of victim in sealed cover to the IO. On 14/05/2013 Shahjahan Begum mother of JCL Uber handed over her son to IO. On the pointing out of JCL Uber knife was recovered from his almirah who admitted use of the said knife on 12/05/2013 for stabbing the victim. Sketch of knife was prepared and the knife was sealed and seized. Thereafter, JCL Uber was sent to observation home. On 14/05/2013 victim was declared fit for statement and gave his statement that on 12/05/2013 at about 05:30 p.m. Mohd. Illiyas accused and his son Uber were together, he had stopped Uber from teasing a girl on which accused had remarked to kill the victim. Consequently, accused caught hold of the victim from behind while his son Uber stabbed with knife on his chest. Thereafter, both the accused fled from the site. In the meanwhile his nephew Asim arrived at the spot. His other nephew Asif also arrived and both nephews took him to the hospital. He had regained consciousness and was feeling better and therefore, had given the statement. The victim however, died on 16/05/2013 in the hospital. Consequently, the dead body was shifted to mortuary. On 17/05/2013 section 302 IPC was added. Postmortem was conducted. Blood sample in gouge and sample seal was handed over to the IO. Postmortem report was received as per which, SC no.:34/14 Page 2/16 death was caused due to penetrating injuries of the chest which was sufficient in ordinary course to cause death. The weapon of offence was sharp cutting weapon. Opinion of expert was received which supported the use of the recovered knife in the offence in question. Accused was not traced. Consequently, was declared PO on 15/10/2013. On 29/10/2013 on information of secret informer accused was apprehended and arrested.
3. Prosecution has examined 28 witnesses.
4. PW1 was Incharge Crime Team who inspected the scene of crime and prepared report Ex. PW1/A.
5. PW2 was posted as photographer in Mobile Crime Team and on instructions of IO had taken 05 photographs of scene of crime Ex. PW2/A with the negatives being Ex. PW2/B.
6. PW3 Mohd. Tasleem stated that on 12/05/2013 while he was in the market he had seen his brother Asif and Asim carrying a person on Scooty to LNJP hospital who had been stabbed. On asking of his brother he had called Police on 100. His statement was recorded.
7. PW4 has stated that on 17/05/2013 he was handed over copy of FIR for being delivered to DCP and Area Magistrate and he had delivered the said copies to DCP Central and Ld. MM/THC. After supplying the copy he reached back to Police Station and his statement was recorded.
8. PW5 had identified the dead body of Mohd. Mehmood on 17/05/2013 and his statement Ex. PW5/A was recorded to the said effect.
9. PW6 Mohd. Asif has stated that he had not seen the incident in question and taken his uncle Mohd. Mehmood to the hospital on his Activa Scooty and admitted him in SC no.:34/14 Page 3/16 LNJP Hospital. The said Mohd. Mehmood died after about 23 days in the hospital. He was declared hostile and stated that he did not know anything about the role of the accused Mohd. Illiyas in the incident in question.
10. PW7 also turned hostile and stated that he did not know anything about the case but identified his signatures at point A on Ex. PW7/B i.e. statement of deceased Mohd. Mehmood. He also stated that he had only disclosed the name of Uber S/o Mohd. Illiyas in his statement.
11. PW8 Mohd. Asim is the main eye witness and stated that on 12/05/2013 at about 05:00 to 05:30 p.m. when he had came out of his house ; in the corner of the gali he saw Uber causing injuries with Chhuri on body of his uncle Mohd. Mehmood deceased ; he raised alarm ; on this Uber fled away ; he had called his brother Mohd. Asif and with his help had taken the deceased to LNJP hospital where deceased was admitted and remained alive for 03 days ; he reported the matter to Police ; his complaint being Ex. PW8/A. Father of Mohd. Uber i.e. accused was also present in the gali at the time of incident who was arrested vide memo Ex. PW8/B having his signatures at point A. Personal search of Mohd. Illiyas dated 29/10/2013 was Ex. PW8/C. Disclosure of Mohd. Illiyas was Ex. PW8/D and pointing out memo is Ex. PW8/E. All signed by him at point A. He turned hostile on other aspects stating that accused Mohd. Illiyas had not played any role in the murder of Mohd. Mehmood. He was only standing in the gali when his son Uber was inflicting injury on the person of Mohd. Mehmood.
12. PW9 was Duty Officer at PS Chandni Mahal and on receipt of rukka had registered FIR. Computerized copy being Ex. PW9/A. Endorsement on rukka was Ex. PW9/B and certificate U/s 65B of Evidence Act is Ex. PW9/C. Copy of FIR was handed SC no.:34/14 Page 4/16 over to Const. Surender for being given to SI Balwant.
13. PW10 identified the dead body of Mohd. Mehmood on 17/05/2013. Dead body was handed over to them vide memo Ex. PW10/B.
14. PW11 stated that on 12/05/2013 at 06:20 p.m. he had reached the spot and had seen blood stains on the ground. At 06:35 p.m. SI Ram Niwas and Incharge Police came to the spot but no eye witness was found. After leaving him and Const. Ankit on the spot. SI Ram Niwas left for LNJP hospital. After sometime Const. Surender also reached the spot. IO also returned, crime team was called, earth control and blood sample were lifted and converted into sealed parcel with seal of BS. At night SI Ankit came to the spot and with help of Mohd. Asim prepared site plan.
15. PW12 was with PW11 and has deposed similarly.
16. PW13 had reached the spot where he found blood stains and left Const. Ankit and Const. Sushil Kumar at the site, he informed the Police Station and went to JPN Hospital where MLC was collected which he further handed over to SI Balwant Singh and had prepared social background record of JCL Uber.
17. PW14 recorded the DD entry no. 27 Ex. PW14/A on 12/05/2013, whereby the first information of incident was given to Police on no. 100.
18. PW15 Const. Surender on 12/05/2013 on information by duty officer reached the site and found other police officers, Crime Team had reached the spot which took photographs and inspected the site, blood and earth control was lifted, converted into sealed pulanda. He alongwith SI Balwant left for hospital where injured was found unfit for statement. Eye witness Asim met him and IO recorded his statement Ex. PW8/A. Rukka was prepared which was taken by him to Police Station for lodging of FIR. He returned with the SC no.:34/14 Page 5/16 FIR. Blood stained cloth of injured alongwith sample seal were taken and seizure memo was prepared signed by said witness. On 14/05/2013 JCL Uber was apprehended and interrogated and he got recovered Churri from the almirah. Sketch of Churri Ex. PW15/C was prepared. Churri was converted into sealed pulanda and seizure memo prepared. Witness identified the Churri Ex. PX.
19. PW16 on 02/07/2013 collected 05 sealed pulandas alongwith sample seal and deposited the same with FSL Rohini and deposited the receipt with MHC (M).
20. PW17 on 07/08/2013 had collected sealed pulanda of knife and deposited the same with Department of Forensic Sciences, MHC (M).
21. PW18 on 12/05/2013 on receiving call had filled the form and forwarded the information to concerned Police Station. The form being Ex. PW18/A.
22. PW19 on 29/10/2013 had joined investigation alongwith Inspector Vinod Kumar. Mohd. Asim had met them at Chitli Kabar. At 10:00 a.m. they had received secret information that accused was present at his residence. Accused was apprehended, arrested, personal search conducted vide Ex. PW8/B and Ex. PW8/C. Accused had made voluntarily disclosure statement Ex. PW8/D. Accused led the Police party and pointed out the place of incident. IO prepared pointing out memo Ex. PW8/E. Witness correctly identified accused in court.
23. PW20 Deputy Director, FSL Rohini stated that on 12/05/2013 had received 05 sealed pulanda and had examined the said 05 sealed pulanda and prepared his detailed report Ex. PW20/A.
24. PW21 on 27/05/2013 had taken rough notes and measurement of site thereby prepared scaled site plan Ex. PW21/A. SC no.:34/14 Page 6/16
25. PW22 was posted as MHC (M) and had received 03 pulanda and one sample seal on 12/05/2013. One pulanda on 14/05/2013, one sealed pulanda on 17/05/2013 and entered the same in register no. 19. The entries being Ex. PW22/A to Ex. PW22/C. On 02/07/2013 had sent 05 pulandas through Ct. Ravinder alongwith two sample seals to FSL Rohini who after deposit, handed over receipt. On 07/08/2013 had sent another pulanda for FSL examination. Photocopy of Rcs being Ex. PW22/D and acknowledgment of FSL being Ex. PW22/E.
26. PW23 on 12/05/2013 had examined the patient Mohd. Mehmood vide MLC no. 92951 and the alleged history was noted as physical assault/stab as stated by patient and brought by. He had prepared the MLC Ex. PW23/A and signed at point A. After primary treatment patient was referred to surgery emergency.
27. PW24 on 13/05/2013 was posted as Senior Resident department of surgery Lok Nayak Hospital. On 12/05/2013 patient Mohd. Mehmood had been admitted in surgery department by Dr. Mahesh Aggarwal. The patient was unfit for giving statement on 12/05/2013 & 13/05/2013. On 14/05/2013 at 04:00 p.m. He had again examined Mohd. Mehmood and had found him unfit for statement. At 09:00 p.m. on the same day he had again examined the patient and found patient being fit accordingly certified him fit to give statement vide his noting at point E on Ex. PW23/A signed by him at point E1.
28. PW25 on 16/05/2013 prepared the death summary Ex. PW25/A of patient Mohd. Mehmood.
29. PW26 on 17/05/2013 on receiving inquest papers from Inspector Vinod Kumar had conducted postmortem on the dead body of Mohd. Mehmood and prepared postmortem report Ex. PW26/A. She had found two injuries i.e. (1) stitched wound 4.8 cm long, SC no.:34/14 Page 7/16 curvilinear, present over front of chest in midline and on right side. (2) multiple brownish scabbed abrasions present over back of lower 1/3rd of left arm 1 cm above elbow joint in an area of 4 cm x 3.5 cm. and the opinion of death was due to haemorrhage and shock consequent upon penetrating injury to the chest which was sufficient to cause death in the ordinary course of nature. On 07/08/2013 pulanda of weapon of offence was produced before her by IO. The seal of pulanda was opened. She had prepared the diagram Ex. PW26/B and had giver her detailed report Ex. PW26/C. From her opinion injury no. 1 as mentioned in postmortem report on the body of the deceased was possible by the weapon examined her and any weapon similar to the same. This witness was not crossexamined on behalf of accused.
30. PW27 on 17/05/2013 had taken over the investigation of the case after Section 302 IPC was added. He alongwith other Police officials had gone to MMC mortuary for postmortem of deceased Mohd. Mehmood. He had recorded statement of Mohd. Mehfoos and Mohd. Fasim regarding identification of body. He had prepared inquest papers. Brief facts being Ex. PW27/1. Copy of statement of Mohd. Mehmood was Ex. PW7/B. After postmortem dead body was handed to relatives of the deceased. He had collected the blood sample and sample seal from the hospital vide Ex. PW27/3. He had sent special report to Area Magistrate and recorded his statement. On 19/05/2013 he recorded statement of Aftab. On 27/05/2013 draftsman was called who had taken rough notes and measurements from the spot. During investigation exhibits were sent for FSL and the FSL reports were Ex. PW20/A. The opinion of Doctor of Forensic Department about weapon of offence was Ex. PW26/C. He had applied for proclaimed offender proceedings against present accused who was declared proclaimed offender. On 29/10/2013 accused on pointing out of Asim and on tip of secret informer was arrested at 11:00 a.m. from his house. Accused was interrogated who SC no.:34/14 Page 8/16 had made his disclosure statement Ex. PW8/D and signed by him at point X. Accused had thereafter, led the Police party to the place of incident and pointed out the place of incident and thereafter, on completion of file had sent the file for judicial verdict.
31. PW28 was first IO of the case. On receiving DD at about 06:40 p.m. on 12/05/2013 had reached the spot and found HC Sushil Kumar and Const. Ankit on the spot. Blood was lying on the spot. No eye witness was found. He received information that injured had been taken to LNJP. After leaving some Police officials on the spot he went to LNJP hospital where he was handed over MLC of the injured. No eye witness was found. He again reached spot and had called the crime team on the spot, earth control and blood was lifted which was converted into sealed pulanda. He again reached the hospital where he found injured unfit for statement. There he met public witness Mohd. Asim and recorded his statement. He made endorsement Ex. PW28/1 and handed over the rukka to Const. Surender who after lodging FIR came back. He recorded statement of PWs. On 14/05/2013 had arrested juvenile Uber and on his pointing out recovery of Churri was made. He had converted the knife into sealed pulanda, sealed the same, prepared seizure memos. On 14/05/2013 after Doctor had declared him fit for statement. He had recorded statement of injured Mohd. Mehmood Ex. PW7/B signed by him at point X and by public witness at point A & B. On 16/05/2013 he came to know that injured had expired. Dead body was shifted to mortuary and further investigation was marked to Inspector Vinod Kumar. He had also joined further investigation of the case with second IO. During his investigation he had received sealed pulanda of clothes of deceased alongwith sample seal which he had taken into possession vide Ex. PW15/B. After postmortem dead body of deceased was handed over to relatives of the deceased. He identified the Churri recovered at the instance of accused Uber, sketch being Ex. PW15/C. He had also identified blood gouge lifted from the SC no.:34/14 Page 9/16 spot Ex. PY. Earth control lifted from the spot is Ex. PZ.
32. Statement of accused U/s 313 Cr. PC had been recorded. Accused had stated that he was falsely implicated in the case. He stated that he was not present at any place near the place of incident on the date and time alleged. He also stated that he alongwith his wife had themselves produced JCL Uber before the Police at PS Chandni Mahal but no recovery was effected from him. He stated that as and when he came to know about he being named in FIR, he surrendered before PS Chandni Mahal was not absconding and was occasionally going to Agra in regard to his business of handicraft. He stated that after he had surrendered his son Uber to the Police, Uber was released on bail and thereafter, family of the complainant had falsely implicated him in the case.
33. I have heard the Ld. Public Prosecutor and Ld. Counsel for accused and also perused the record.
34. Ld. Counsel for accused has stated that accused was neither named in the FIR nor in the initial statements of any witness. The deceased was under respiratory distress and had oxygen mask over his face and the statement alleged to be his dying declaration was neither dying declaration nor recorded properly. The same was only a manipulated statement by IO. The accused was therefore, falsely implicated in the case.
35. The oral and medical evidence as detailed above available on record establishes death of Mohd. Mehmood (victim/deceased) due to chest injury caused by "churri or churri like weapon", "due to haemorrhage and shock consequent upon penetrating injury to the chest which was sufficient in ordinary course of nature to cause death". This fact is also not disputed by the accused.
36. Thus, murder being established. The next vital point to be decided is as to SC no.:34/14 Page 10/16 whether the present accused had caused the said murder of Mohd. Mehmood.
37. As per the prosecution, the sequence of events in the present case were that on 12/05/2013 at about 05:0006:00 p.m. accused and his son JCL Uber at site were having prior grudge with the deceased and when deceased had objected to Uber's act of teasing a girl, accused Illiyas exhorted Uber by uttering "maar sale ko" and he caught deceased from behind while Uber inflicted Churri blow on deceased's chest. In the meanwhile one Mohd. Asim (nephew of deceased) also arrived on the spot. He raised alarm. Accused fled from the spot. Deceased was taken to hospital. FIR was lodged. Statement of Mohd. Asim was recorded. Deceased was initially unfit for statement but on 14/05/2013 on being fit gave statement recorded by IO in the hospital. The victim could not recover from his injury and succumbed on 16/05/2013 in the hospital. JCL Uber was arrested. On his disclosure weapon of offence was recovered from the almirah. Accused fled and could be arrested only on 29/10/2013. There were therefore, two eye witness to the present incident in question. One being PW8 Mohd. Asim and the other being the victim. The victim however, has succumbed but before his death had given his statement Ex. PW7/B which bears his thumb impression and is also signed by Mohd. Jahangir PW7 & Mohd. Asim PW8.
38. The first and only material eye witness available for crossexamination is therefore, PW8. This witness stated that on 12/05/2013 he had seen JCL Uber causing injuries with Churri on the chest of his uncle Mohd. Mehmood. He had raised alarm on which Uber fled from the site. To a specific question asked by Ld. Public Prosecutor "what is the role of accused Mohd. Illiyas present in the court?", he replied that "Illiyas did not play any role in the murder of Mohd. Mehmood. He was only standing in the gali when his son Uber was inflicting injury on the person of Mohd. Mehmood". He also stated that he did SC no.:34/14 Page 11/16 not state that Mohd. Mehmood had told that accused Illiyas used abusive language and told Uber to kill the deceased. He also denied having told to the Police that accused was trying to escape at the said time but he did not pay heed to him at the time of recording of his first statement but later he had given supplementary statement clarifying the role of accused. He denied the contents relating to involvement of the accused in the offence in question of his supplementary statements Ex. PW8/E dated 14/05/2013 and Ex. PW8/F dated 28/08/2013. He also denied that accused had made disclosure statement about his (accused) involvement in the case. He also denied that the statement of Mohd. Mehmood Ex. PW7/B was recorded in his presence. He stated that he was standing at a distance. He denied that he had been won over by the family of the accused.
39. In crossexamination on behalf of accused PW8 also stated that he had not stated to Police that Mohd. Illiyas was present in the gali at the time of incident in question and that he had only disclosed name of Mohd. Uber in the statement. Thus this witness in short has denied any involvement of the accused in the offence in question.
40. Thereafter, as per prosecution's story this PW8 Mohd. Asim had called his brother Mohd. Asif PW6 who had taken the deceased to the hospital. PW6 stated that he had not seen the incident in question but had taken deceased Mohd. Mehmood to the hospital on their Activa Scooter. He was also declared hostile and stated that he had not stated to the Police that at the time when Mohd. Uber was stabbing the deceased, accused Mohd. Illiyas had caught deceased from back side. PW3 stated he had seen PW6 & PW8 carrying a person to hospital and had called Police on 100. These witnesses were therefore, not the eye witness but were only a link witness to the incident in question. As discussed above the eye witness Mohd. Asim has not supported the prosecution's story of accused having participated in the murder of the deceased Mohd. Mehmood.
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41. Besides this evidence the other vital evidence of the case is the statement of the deceased Ex. PW7/B recorded by the IO about two days prior to his death. The said statement reads as "on 12/08/2013 Sunday evening at about 05:30 p.m. Illiyas and his son Uber came out from Phatak, at the said time I was also coming from the shop of my nephew Nafis. On the way Uber S/o Illiyas teased an unknown girl, I objected to the same. On this Illiyas while abusing stated "maar sale ko" and Illiyas caught him from behind while his son Uber stabbed him on his chest thereafter, both father and son fled from the site. Due to the injuries on the chest he was bleeding profusely and fell down. In the meanwhile his nephew Asim came to the spot. Asif his second nephew alongwith his Scooter also came to the spot and both took him to the hospital. He was not in senses at the said time but today was feeling better and you IO in the hospital had recorded his statement. Illiyas and his son with intention to kill had stabbed him. Action be taken against the accused. You had recorded my statement, read over the same to me. I have heard, the same is correct". This statement bears thumb impression of Mohd. Mehmood and is also witnessed by Mohd. Jahangir and Mohd. Asim. This statement is relied as the dying declaration of the victim.
42. IO PW28 stated that on 14/05/2013 when victim was declared fit for statement by the Doctor, he had recorded the statement of the victim in presence of public witnesses who had signed at point A & B. In crossexamination he stated that injured had narrated the entire incident in reply to one question. Injured had oxygen mask over his face but that was removed by the Doctor before he recorded the statement. He had requested the Doctor to be present when the statement of injured was recorded but the doctor had declined saying that usually they did not become witness to such statement. At that time no nurse was attending the injured. He had not tried to call any SDM before recording the statement of victim. The SC no.:34/14 Page 13/16 concerned SDM was sitting at Daryaganj. He admitted that the injured had intravenous needles pressed on his hand. Injured had not gestured while making statement as he was able to make oral statement. He had not sent any request to SDM for recording of the statement of injured from 13/05/2013 to 14/05/2013. The other attesting witnesses of the statement are PW7 & PW8.
43. PW7 was declared hostile and stated that when IO was recording statement of Mohd. Mehmood he was standing at a distance and could not overhear the statement of victim. He admitted that victim was giving reply to the IO of the case in gesture as he had pipe in his mouth. He admitted that he had signed on the statement Ex. PW7/B. IO had neither pressurized him nor had he raised any protest at the time of signing of the statement Ex. PW7/B. In crossexamination on behalf of accused, PW7 stated that his statement was recorded after 03 months of the incident in question. He had not disclosed name of accused Illiyas in his statement to Police and he had only disclosed the name of Uber. Doctor was available at the time of recording of the statement of deceased but there was no nurse or attendant with the deceased. He admitted that oxygen pipe was put in the mouth of the deceased at the said time. He also admitted that deceased was not alert at the said time. He stated that Police was asking question and deceased was answering. Police had told the name of Uber to which deceased had replied in affirmative. Deceased had both affirmed by gestures and speech. Speech of deceased was not very clear. He did not hear the name of Illiyas at the said time. He was not read and explained the contents of Ex. PW7/B. He also admitted that deceased was only capable of saying "huha".
44. PW8 in respect of statement Ex. PW7/B stated that he was standing at a distance when his statement was recorded. In crossexamination stated that all conversation SC no.:34/14 Page 14/16 with the deceased could take place only in gestures after one day of the incident in question. On the day of recording of Ex. PW7/B, Jahangir PW7 was standing at a distance of about 2530 feet from the deceased. Both the witnesses have therefore, not corroborated the version of the prosecution in regard to deceased having stated about involvement of the accused in the incident in question. The next material witness in regard to the sound condition of the victim at the said time is PW24 Dr. Rajandeep. PW24 stated that he had examined patient Mohd. Mehmood on 13/05/2013 and 14/05/2013 and the patient was found unfit for statement but at 09:00 p.m. on 14/05/2013 patient was again examined and was found fit for statement vide noting at point E on Ex. PW23/A. In crossexamination he stated that insertion of intercostal tube drainage in the chest of the patient was advised, in view of the accumulation of air and blood in the pleural cavity which was causing respiratory distress. Despite requisite management of the patient, his oxygen saturation was falling so he had to be put on artificial respiratory support. Patient was on oxygen inhalation via mask since the day of his admission in the hospital. He had not removed the mask of the patient while examining him and declaring him fit for statement. He tried to explain that these were minor details and were not correctly remembered by him due to lapse of time. He had not been requested by the IO to remain present at the time of recording of the statement of the patient. Statement of victim/patient was not recorded in his presence. He was also not asked to attest the same. He also admitted that the injury in question had punctured the lungs of the patient and was causing respiratory distress to him. He also admitted that patient had tried to remove his respiratory tube and that blood and air were being removed by ICT from the patient's pleural cavity. It is also recorded in death summary Ex. PW25/A that patient had initially improved but since evening of 13/05/2013 patient was having respiratory distress. He had improved and was shifted to surgery ward on 14/05/2013 but was kept on oxygen SC no.:34/14 Page 15/16 inhalation via venti mask maintaining stable vitals.
45. All the above said witnesses have therefore, corroborated the fact that victim was on oxygen mask due to respiratory distress, right from the day of his admission on 12/05/2013 and also on and after 14/05/2013, 09:00 p.m. the time of recording of the statement Ex. PW7/B. In these circumstances when victim was in such a precarious condition it was important for the IO to have taken all necessary precautions for recording the statement strictly as per the version of the victim in the manner which inspired confidence and for excluding any scope of manipulation/error of any kind. As per record, victim was admitted on 12/05/2013 and was declared fit for statement on 14/05/2013 and had succumbed to injuries on 16/05/2013. There was thus enough time for the IO to have at least made an attempt to request any Magistrate to record the statement of the victim. Since this was not done the least IO could have done was to have associated the concerned Doctor or the nurse at the time of recording of the statement. This was however, also not done and no plausible explanation has been given for omitting the same. The other two attesting witnesses of Ex. PW7/B, namely, PW7 & PW8 have also not corroborated the prosecution's version. The statement Ex. PW7/B in respect of accused's role in the offence in question is therefore, not beyond doubt and cannot be relied solely for the purpose of the present case.
46. As discussed above, none of the witnesses have supported the prosecution story and have failed to link the accused with the offence in question. Consequently, accused is entitled to benefit of doubt.
47. Accordingly, accused person is acquitted for the offence punishable u/s 302/34 IPC.
Announced in the open court (DINESH BHATT)
on 12/08/2014 ASJ/Delhi/12/08/2014
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