Delhi District Court
State vs . on 3 February, 2012
IN THE COURT OF SH. RAJNISH BHATNAGAR,
ADDL. SESSIONS JUDGE II, OUTER DISTRICT
ROHINI COURTS : DELHI
IN RE : Sessions Case No. : 70/10
FIR No. : 841/03
P.S. : Sultan Puri
U/s : 302/120 B/34 IPC & 25/27 Arms Act
Date of registration : 03122003
Reserved for Judgment on: 12122011
Judgment Announced on : 03022012
State
Vs.
1. Mohd. Shakir S/o Mohd. Aakil
R/o H. No. 69, Sector6, New Friends Enclave,
Sultan Puri, Delhi.
2. Surjeet Singh @ Kake S/o Narayan Singh
R/o House No. 5, Sector 6, West Friends Enclave,
Sultan Puri, Delhi
3. Anil S/o Tara Chand
R/o House No. 14, Harijan Basti,
Sultan Puri, Delhi.
4. Pawan S/o Anand
R/o House No. P39,
Friends Enclave, Sector6
Sultan Puri, Delhi.
Sessions Case No. : 70/10 Pare 1 of 36
JUDGMENT
1. As per the case of the prosecution on 20072003, at about 9:57 a.m. a PCR call was received at PS Sultan Puri, Delhi that one person has been murdered at 6/10 Sant Enclave G Block, 80 Feet Road near F7 Jhuggi.
2. The said information was given to PCR by one Anil from Telephone No. 25187845. While the said information was being lodged, wireless operator again informed that an information has also been received from telephone No. 20531183 to the effect that one murder has taken place at Jhuggi of F7. Both the information were recorded vide DD No. 11 A and marked to SI CL Meena who alongwith Ct. Rajender reached the spot i.e 30 feet Road, Opposite plot No. 6/27, West Friends Enclave near F Block Jhuggi Suiltan Puri and found the dead body of a male, aged about 35 years having stab injuries on his stomach, abdomen and neck. One embedded knife was also found in the neck of the deceased. One Munshaid Ali was present at the spot who identified the dead body as of his brother namely Sahid Ali S/o Mohd. Umar R/o H. No. W49/81, West Friend Enclave near F Block, Sultanpuri. IO recorded the statement of Munshaid Ali S/o Mohd. Umar who stated in his statement that Sessions Case No. : 70/10 Pare 2 of 36 his younger brother Sahid Ali lives at H. No. W 49/81, West Friends Enclave, near FBlock, Sultanpuri with his family and runs a garage of cycle rickshaw. His nephew Imaran S/o Akhlakh was engaged to Shabana @ Rihana D/o Rukshana. One Rashid S/o Aakil R/o H. No. 59, West Friends Enclave, Sultanpuri, Delhi had eloped with Shabana @ Rihana one month ago and on this his younger brother Sahid alongwith Rukshana had got a case registered against him at PS Sultan Puri. Due to which Shaqir, elder brother of Rashid became jealous of Sahid Ali and this also resulted into exchange of hot words between them. Shaquir had also telephoned to Sahid one / two days ago and was insisting on to see him alone.
3. As per the complainant on 20072003, being Sunday he was coming to see his younger brother at his house to discuss the above matter and when he reached near FBlock Jhuggi at about 9:30 p.m, he saw one Pawan, who live in the same block and drive the vehicle of Rukshana, crying Sahid is being beaten and therefore he reached the place where Pawan had pointed and found that one Saquir S/o Aakil R/o 59, West Freinds Enclave Sultan Puri, Delhi alongwith his one accomplish had been quarrelling with Sahid and Sahid was trying to set himself Sessions Case No. : 70/10 Pare 3 of 36 free from them. Both of them stabbedd Sahid in his stomach and neck with their knives. Sahid fell down. Thereafter both of them i.e Saquir and his friend ran away towards 80 feet road. One of t heir knives also remained embedded in the neck of Sahid. As per the complainant Saquir and his friend have attempted to kill his younger brother Sahid Ali resulting in his death. SI C.L. Meena made his endorsement on the statement of the complainant, prepared the rukka and got the case registered.
4. F.I.R. bearing No. 841/03 was registered at P.S. Sultan Puri and investigation went underway. Accused persons were arrested. After completion of investigation final report U/s 173 Cr.P.C. was prepared and was filed in the court of Metropolitan Magistrate who after completing all the formalities committed the case to the court of sessions for trial.
5. On 12012004, a charge U/s 120 B IPC, U/s 302 read with section 34 IPC, U/s 27 of Arms Act and U/s 25 of the Arms Act was framed against accused Md. Shakir and Surjeet Singh @ Kake and a separate charge U/s 25/27 of the Arms Act was also framed against accused Md. Shakir and on 27092005 a separate charge U/s 120 B IPC and U/s 302 R/w Section 34 IPC was framed against accused Anil and Pawan. All the accused Sessions Case No. : 70/10 Pare 4 of 36 pleaded not guilty to the charges framed against them and claimed trial.
6. In order to prove the guilt of the accused persons, the prosecution examined as many as 21 witnesses.
7. PW 1 is Ct. Rajender Singh. In his presence IO recorded the statement of complainant Munshed and made his endorsement on the same. Thereafter PW 1 took the rukka to the police station for the registration of the FIR.
8. PW 2 is Ct. Devender who on 20072003, was on patrolling duty alongwith Ct. Praveen in the area of FGH Block Sultan Puri. On receiving the information regarding murder of Sajid, he reached the spot at 9:15 p.m, arranged Tata407 and as per the instruction of IO alongwith Ct. Praveen took the dead body to SGM Hospital where MLC No. 2194 was prepared by the doctor and dead body was kept in mortuary for postmortem. PW 2 also delivered the copy of the FIR of the instant case to concerned MM, Jt. C.P. Northern Range and DCP North West.
9. PW 3 Munshed Khan is the brother of the deceased. He was examined on 1942004 and on 07012011 i.e after accused Anil and Pawan were summoned as an accused U/s 319 Cr.P.C. He is a material witness and I will discuss his testimony Sessions Case No. : 70/10 Pare 5 of 36 in the later part of the judgment.
10. PW 4 Ct. Mahavir deposed that on 21072003, he had joined the investigation of this case and on that day dead body of Shahid Ali was identified by the wife and the elder brother. After the postmortem, dead body of Shahid Ali was handed over to the relatives of the deceased. He further deposed that from the mortuary of SGM hospital, he had brought three sealed parcels which was sealed with the seal of SGMH mortuary Mangol Puri and sample seal and handed over the same to the IO which was taken into possession by the IO vide memo which he proved as Ex. PW 4/A.
11. PW 5 Mahender Chauhan is the photographer. He took the photographs of the dead body and the place of occurrence and proved on record the negatives as Ex. PW 5/A 1 to A7 and the photographs as Ex. PW 5/A 8 to A14.
12. PW 6 SI Manohar Lal is the draftsman. On 09082003, he alongwith the IO reached the spot and took the rough notes and measurement and on the basis of the same he prepared the scaled site plan which he proved as Ex. PW 6/A. He further deposed that on the same day he also accompanied the IO to near factory No. 390, Kirari Road, Sultan Puri which is the place Sessions Case No. : 70/10 Pare 6 of 36 of recovery of weapon of offence and took the rough notes and measurement and on the basis of the same he prepared the scaled site plan which he proved as Ex. PW 6/B.
13. PW 7 Smt. Gulshan is the wife of the deceased. She was also examined on 1122004, and on 27092007 i.e after accused Anil and Pawan were summoned as an accused U/s 319 Cr.P.C. She is also a material witness and I will discuss her testimony in the later part of the judgment.
14. PW 8 is H.C. Ram Kishan who on 20072003 was posted at police headquarter ITO as a telephone operator from 8:00 a.m. to 2:00 p.m. at channel No. 101. He received the telephonic message from telephone No. 25187845 which was given by one Anil Kumar that a person has been killed. On receiving the information, he had filled form regarding the information. He proved on record the photocopy of the original form as Ex. PW 8/A.
15. PW 9 H.C. Bhagirath is the duty officer. He recorded the FIR of the instant case on the basis of the rukka. He proved on record the carbon copy of the FIR as Ex. PW 9/A.
16. PW 10 Neelam deposed that on 20072003, she was th student of 8 class and on that day at about 9:30 a.m she was Sessions Case No. : 70/10 Pare 7 of 36 sweeping the open area which was in front of their residence. One person by the name of Shahid was known to her and she used to call him her uncle. She further deposed that two persons were giving beating to Shahid Uncle and Shahid uncle was also giving beating to them for saving himself. Shahid uncle was lying on the ground and two persons were sitting on him while he was lying on the ground. She immediately went inside and informed her mother. When she alongwith her mother again came back from their residence they saw two persons who were giving beatings to Shahid uncle had already ran away and Shahid uncle was lying on the ground in injured condition.
17. PW 10 Ms. Neelam was again examined on 21012011 after accused Anil and Pawan were summoned as accused U/s 319 Cr.P.C. I will discuss this part of her testimony in the later part of the judgment.
18. PW 11 Head Constable Rishi Kumar was associated with the IO during the course of investigation. He deposed about the sequence of investigation done by the IO in his presence. In his presence accused Mohd. Shakir was arrested by the IO and he made his disclosure statement. PW 11 proved on record the arrest memo of accused Mohd. Shakir as Ex. PW 11/A and his Sessions Case No. : 70/10 Pare 8 of 36 disclosure statement as Ex. PW 11/B. He is also the witness to the arrest of accused Surjeet who was arrested in his presence. He proved on record arrest memo of accused Surjeet as Ex. PW 11/C and his disclosure statement as Ex. PW 11/D. He is also the witness to the recovery of country made pistol which was recovered at the instance of accused Mohd. Shakir. The pistol was examined by the IO and it was found containing one misfired cartridge of .12 bore. Inspector prepared the sketch of cartridge and of the pistol. PW 11 proved on record the sketch as Ex. PW 11/E. The recovered country made pistol and misfired cartridge was sealed in a parcel which was sealed with the seal of SS and the same was taken into possession vide memo which PW 11 proved as Ex. PW 11/F.
19. PW 11 is also the witness to the recovery of knife which was recovered at the instance of accused Surjeet. The knife was measured and its sketch was prepared which PW 11 proved as Ex. PW 11/G. The knife was kept in a piece of cloth and it was also sealed with the seal of SS. The parcel was taken into possession vide memo which he proved as Ex. PW 11/H. This witness identified the pistol and the cartridge as Ex. P1 and P2.
20. PW 12 HC Radha Krishna deposed that on 26092003, Sessions Case No. : 70/10 Pare 9 of 36 he was posted at Anti Homicide Section Crime Branch, Prashant Vihar. On that day he received the exhibits from PS Sultan Puri and deposited the same to FSL, Malviya Nagar. He handed over the parcels with seal intact to FSL office. He also deposited the road certificate vide RC No. 427/21/03. He further deposed that one katta with one cartridge was also deposited on the same day.
21. PW 13 Smt. Neeru @ Guddu deposed that about 56 years ago in the month of summers, she was sleeping in her house. Her daughter Neelam was sweeping outside the house. She saw quarrel outside the house and came to her and woke her up. She alongwith her daughter came outside the house. She saw that Shahid was crying in pain/ Tadap raha tha, at about distance of 23 plots from her house. She saw Shahid in a vacant plot. She went to the house of Shahid in oder to inform his family. She met her wife and brought her to the spot where Shahid was lying in the injured condition. The incident took place in the morning hour. She had not seen any other persons except Shahid.
22. This witness was declared hostile and cross examined by the Ld. APP for the State. In her cross examination by the Ld. Sessions Case No. : 70/10 Pare 10 of 36 APP she admitted it to be as correct that police recorded her statement Ex. PW 13/A wherein she stated that her daughter informed her that two boys are beating Shahid. She admitted it to be as incorrect that she stated in her statement that Shahid was in blood and Pawan was shouting and saying "Shahid ko mar diya"/Shahid has been killed. This witness was confronted with portion A to A where it is so recorded. She identified accused Pawan in the Court. She admitted it to be as incorrect that she is deposing falsely being won over by the accused Pawan who was present at that time on 20072003 when Shahid was beaten.
23. PW 14 is Dr. R.K. Punia. He conducted the postmortem on the dead body of Shahid Ali. He proved on record the postmortem report as Ex. PW 14/A. He further proved on record application for opinion regarding injuries which was submitted before him by Inspector Anand Singh as Ex. PW 14/B, opinion given by him on the reverse of the application as Ex. PW 14/C and he also proved on record the sketch diagram of the knife as Ex. PW 14/D.
24. PW 15 M.S. Archna Sinha is the Ld. Metropolitan Magistrate, Delhi. She conducted the TIP proceedings. She Sessions Case No. : 70/10 Pare 11 of 36 proved on record the application for TIP of accused Surjeet which was marked to her by the Link MM as Ex. PW 15/A, TIP proceedings of accused Surjeet as Ex. PW 15/B. She deposed that accused refused to join the TIP proceedings and his statement to this effect was recorded and she proved on record the certificate thereof as Ex. PW 15/C. She also proved on record application moved by the IO for obtaining the copies of TIP proceedings as Ex. PW 15/D.
25. PW 16 H.C. Yashbir Singh is the MHC(M). He deposed about the deposit of the exhibits of the case in the malkhana by Inspector Sukhvinder Singh and the relevant entries made by him in register No. 19. He proved on record the photocopy of entry made by him in register No. 19 at S. No. 7467 as Ex. PW 16/A , photocopy of entry made by him in register No. 19 at S. No. 7477 as Ex. PW 16/B and entry made by him at S. No. 7504 in register No. 19 as Ex. PW 16/C. He further deposed that on 05092003, SI Anand Singh received two pullandas/parcels of knife and one parcel black polythene and sealed sample to Jaipur for opinion of doctor who conducted the postmortem by DD entry. SI Anand Singh signed the register No. 19 against the entry No. 7467.
Sessions Case No. : 70/10 Pare 12 of 36
26. He further deposed that on 26092003, H.C Radha Kishan took one parcel containing one katta and one cartridge with seal of SS and seven pullanda and two sample seal vide RC No. 428/21/03 and 427/21/03 and deposited the same in FSL Malviya Nagar vide RC's which he proved as Ex. PW 16/D and Ex. PW 16/E. On 25032004, the result of FSL was received and he made relevant entry in register No. 19 against entry No. 7477.
27. PW 17 Sh. Dependra Pathak, Director, Ministry of Petroleum and Natural Gas Shastri Bhawan, New Delhi accorded sanction Under Section 39 of the Arms Act. He proved on record the Sanction as Ex. PW 17/A.
28. PW 18 Inspector Anand Singh is one of the IO of the case and he disclosed about the sequence of investigation done by him. He took over the investigation of this case when two accused persons namely Mohd. Shakir and Surjeet @ Kala were in J.C. PW 18 recorded the supplementary statement of complainant Munsaid Ali at his house on 11092003 and he also recorded the statement of PW Neelam at her house. He also presented a request before the doctor for getting subsequent opinion regarding weapon of offence Ex. PW 14/B and doctor gave the subsequent opinion Ex. PW 14/C on the back of his Sessions Case No. : 70/10 Pare 13 of 36 request. He also deposed that diagram of weapon of offence Ex. PW 14/D was also prepared by the doctor. He also proved on record expert opinion dated 20.10.2003, prepared by Sh. K.C. Varshney as Ex. PW 18/A alongwith its forwarding letter and FSL report dated 27012004, by Dr. Rajender Kumar which he proved as Ex. PW 18/C and Ex. PW 18/D alongwith its forwarding letter which he proved as Ex. PW 18/E which were collected during course of trial and submitted before the court alongwith written request. He proved on record his written request as Ex. PW 18/F.
29. PW 19 Dr. Brijesh Singh identified the handwriting and signatures of Dr. Indira on MLC No. ENO: 65356 pertaining to patient Mohd. Shahid and proved on record his MLC as Ex. PW 19/A.
30. PW 20 Inspector CL Meena is the first IO of the case. He narrated the sequence of investigation done by him. He recorded the statement of eye witness Munshed Ali Ex. PW 3/A, prepared the rukka which he proved as Ex. PW 20/A and got the case registered through constable Rajinder.
31. PW 21 Inspector Sukhvinder Singh is the second IO of the case. He unfolded the sequence of investigation done by Sessions Case No. : 70/10 Pare 14 of 36 him. He proved on record the rough site plan as Ex. PW 21/B, crime team report as Ex. PW 21/C, his arrival entry vide DD No. 20 A as Ex. PW 21/D, personal search memo of accused Mohd. Shakir as Ex. PW 21/E, pointing out memo of the place of occurrence as Ex. PW 21/F, personal search memo of accused Surjeet as Ex. PW 21/G, site plan of the place from where the weapon of offence was recovered as Ex. PW 21/H, pointing out memo of the site as Ex. PW 21/I, the documents which was prepared by him at the time of postmortem as Ex. PW 21/J. He identified the accused and the case property.
32. After the closing of the prosecution evidence statement of accused persons U/s 313 Cr.P.C was recorded and incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and have been falsely implicated.
33. In his defence accused Mohd. Shakir examined one Ravi Shankar Kumar, LDC Record Room (CA) Tis Hazari Courts, Delhi. Other accused persons did not lead any evidence in their defence.
34. DW 1 Ravi Shankar Kumar, LDC Record Room (CA) Tis Hazari Courts, Delhi brought the summoned record in execution petition No. 53/01 in the matter of Smt. Ram Kumari Vs. Mohd.
Sessions Case No. : 70/10 Pare 15 of 36 Akil which was decided by Sh. Inderjeet Sigh, ARC, Delhi. He proved on record the photocopy of memo of party as Ex. DW 1/A.
35. I have heard Ld. APP for the state, counsel for the accused persons and have also gone through the records of the case.
36. It is submitted by the Ld. APP that on the basis of the evidence recorded and the material on record accused persons be convicted. It is further submitted by the Ld. APP that the case is based on the testimony of the witnesses namely Munshed brother of the deceased and Gulshan who is the wife of the deceased. It is further urged that their testimony is totally reliable and on the basis of their testimony all the accused persons can be convicted.
37. On the other hand, it is urged by the counsel for the accused persons that the testimonies of the two alleged eye witnesses are full of contradictions and they have made improvements in their statements and they are planted witnesses and that they had not seen the occurrence. It is further submitted that the accused persons have been falsely implicated.
38. Initially the charge sheet was filed against accused Mohd. Shakir and Surjeet Singh and other two coaccused Sessions Case No. : 70/10 Pare 16 of 36 namely Pawan and Anil were placed in column number 2 and they were even cited as witness but subsequently their names appeared in the testimony of PW 3 Munshed Khan and PW 7 Gulshan when they were examined in the Court. So on the application U/s 319 Cr.P.C they both were summoned as accused in this case.
39. The points for consideration in the instant case are :
(A) Whether the eye witnesses are trustworthy and believable?
(B) Whether the recoveries are trustworthy and reliable and are connected with the crime?
(C) What was the motive behind the murder?
(D) Result
40. Point (A) Whether the eye witnesses are trustworthy and believable?
According to the prosecution there are 4 eye witnesses to the incident. Those are PW 3 Munshed Khan who is the brother of the deceased, PW 7 Smt. Gulshan who is the wife of the deceased, PW 10 Neelam and PW 13 Smt. Neeru @ Guddu.
41. Let me start with the testimony of PW 10 Neelam. Her examination in chief is short and crisp. She has deposed that on Sessions Case No. : 70/10 Pare 17 of 36 th 20/7/2003, she was a student of 8 class and on that day at about 9:30 a.m she was sweeping the open area in front of her house. She saw Shahid known to her and whom she used to call uncle was given beatings by two persons and he was also giving beatings to them in order to save himself. She further deposed that Shahid Uncle was lying on the ground and two persons were sitting on him. She immediately went inside and informed her mother. When she came alongwith her mother she saw two persons who were giving beatings to Shahid Uncle had already ran away and Shahid uncle was lying in injured condition.
42. So from her examinationinchief it has clearly come out that she had seen two persons giving beatings to deceased Shahid. She has not talked about the use of any weapon by those two persons.
43. This witness was cross examined by the counsel for the accused persons and in her cross examination she stated that the fight was going on at a distance of 5 houses away from her house. She further deposed that she cannot tell after how many minutes the relatives of Shahid came to the spot. She further stated in here cross examination that her mother had gone to Sessions Case No. : 70/10 Pare 18 of 36 inform at the house of Shahid Uncle.
44. This witness was again recalled for examination after accused Anil and Pawan were summoned U/s 319 Cr.P.C. Her testimony was recorded on 2112011 and it remained exactly the same what was on 1642005 when she was examined in chief for the first time.
45. In her cross examination on behalf of the accused Pawan and Anil she stated that her mother knew wife of Shahid.
46. Now coming to the statement of mother of the PW 10 whom she woke up after seeing the incident. She is PW 13 Smt. Neeru @ Guddo. She has stated in her examination in chief that she alongwith her daughter came out side the house and saw that Shahid was crying in pain at about distance of 23 plots from her house. She further deposed that she went to the house of Shahid in order to inform her family where she met his wife and brought her to the spot where Shahid was lying in injured condition. She has deposed that she had not seen any other persons except Shahid.
47. This witness was cross examined by the Ld APP for the State and in her cross examination she admitted her statement Ex. PW 13/A as correct. She denied the suggestion that she had Sessions Case No. : 70/10 Pare 19 of 36 stated in her statement that Shahid was in blood and Pawan was shouting and saying Shahid Ko Mar Diya. She was confronted with her statement Ex. PW 13/A where in it has been recorded.
48. In her cross examination on behalf of accused Mohd. Shakir and Surjeet Singh she has categorically stated that when she went to the house of deceased Shahid except his wife Gulshan none else met her and Gulshan i.e the wife of the deceased came with her and there was no one at the spot except the dead body.
49. In her cross examination on behalf of accused Pawan and Anil she stated that when she came out from the house she did not see any body including Pawan at the place of incident. She further stated in her cross examination that Gulshan did not faint at her house but she came with her at the spot.
50. So from the examination in chief of PW 13 it is crystal clear that she has not seen the incident and she was asleep at that time. She was woken up by her daughter then she saw deceased Shahid crying in pain. But Ld. APP for the State had declared this witness hostile and suggested that when she came out she saw Shahid was in blood and Pawan was shouting Sessions Case No. : 70/10 Pare 20 of 36 Shahid Ko Mar DiyaMar Diya which has been recorded in her statement Ex. PW 13/A. But it is quite surprising that on the one hand the prosecution witness PW 10 who appears to be a star witness of this case has not uttered a single word regarding her mother i.e PW 13 witnessing the incident but how and under what circumstances the prosecution has made PW 13 also one of the eye witness and deposed about the presence of accused Pawan at the spot and shouting Shahid Ko Mar DiyaMar Diya. As already seen above PW 10 Neelam who was the first to witness the incident has not uttered a single word about the presence of accused Pawan at the spot or his shouting Shahid Ko Mar Diya Mar Diya. So both these witnesses i.e PW 10 and PW 13 are contradicting each other on a very material aspects of the case.
51. The other two eye witnesses according to the prosecution are PW 3 and PW 7 i.e the brother and the wife of the deceased. Now let us examine the testimony of PW 7 in the light of testimony of PW 10 and PW 13. According to PW 7 on the date of the incident i.e on 2072003, at about 9 a.m accused Pawan came to her house and called her husband Shahid for making some payment so her husband accompanied Pawan.
She has further deposed that after about an hour some one
Sessions Case No. : 70/10 Pare 21 of 36
informed her that her husband Shahid was being attacked by Anil Dhiya, Shakir, Pawan and Kake.
52. We will stop here for a moment and revert back to the testimony of PW 13. PW 13 has categorically stated that she had informed PW 7 that her husband was lying in injured condition. It has also been observed hereinabove that PW 13 has not witnessed the incident. What she has witnessed is that she saw deceased Shahid lying in front of his house in the injured condition so it is quite surprising if PW 13 had herself not seen any assailant how she can give name of the assailants to PW 7. It is also quite surprising as to why PW 7 has not stated as to who had informed her about the attack on her husband. It has also come on record that PW 13 Smt. Neeru @ Guddu was known to PW 7 but for reasons best known to PW 7 she has not disclosed the name of PW 13 who informed her about the incident but says some one informed her about the incident.
53. According to PW 7 when she reached there she saw all the accused persons attacking her husband with chaku and churi. So now this witness has become eye witness to the incident. But again to my mind this is highly impossible because the person who informed her about the incident i.e. PW 13 has Sessions Case No. : 70/10 Pare 22 of 36 herself not seen the incident because by that time the assailants were not present near the dead body of Shahid. So when the informant herself had not seen the incident then how can PW 7 see the incident.
54. In her cross examination PW 7 has stated that the lady who had informed her about the incident had not given the name of the persons who were beating her husband. So it is highly surprising how she named the accused persons in her examination in chief. She has also admitted in her cross examination that she came to know that the said lady was Guddo i.e. PW 13 examined by the prosecution. One more fact is there which also proves that PW 7 has not witnessed the incident which also otherwise from the testimony of PW 10 and PW 13 is not possible that in the entire examination in chief PW 7 has not uttered a single word about the place of incident.
55. In her cross examination she has stated that the lady who had informed her had not accompanied her to the spot. Then how she came to know about the place of incident is anybody guess.
56. Now on the other hand PW 13 has categorically stated in her cross examination that PW 7 Gulshan had come to the Sessions Case No. : 70/10 Pare 23 of 36 spot with her and there was no one except the dead body of the Shahid at the place of occurrence. So now there is contradiction between the testimony of PW 7 and PW 13 regarding coming to the spot.
57. The picture which has emerged till now is that PW 10 witnessed the incident who informed her mother PW 13 who in turn informed PW 7. PW 13 and PW 7 had not witnessed the incident. PW 7 has also made mark improvements in her statement made in the Court and these improvements cannot be said to be minor. They are major improvements which are as follows : "I stated to the police in my statement under Sec. 161 Cr.P.C dated 2072003, that on 2072003, accused Pawan had come to my house to call my husband by stating that Anil Dahiya had called me for making some payment. Confronted with statement Ex. PW 7/DA, where there is no mention that Shahiad stated that Anil Dahiya had called him for making some payment. I told to the police in my statement on 2072003, that after sometime of my husband was being taken by accused Pawan, somebody informed Sessions Case No. : 70/10 Pare 24 of 36 me that my husband Shahid was being beaten by Anil Dahiya, Pawan, Shakir and Kake @ Surjeet.
Confronted with statement Ex. PW 7/DA, where it is not so recorded. I told the police that myself and elder brother of my husband, namely Munshad Ali had gone to a place at 80 feet road, Sultan Puri and saw that the aforesaid four persons were attacking persons with knife and chhuras. Confronted with statement Ex. PW 7/DA, where it is not so recorded. I also told the police that when accused persons saw me and Munshand Ali, then they ran away from the spot. Confronted with statement, Ex. PW 7/DA where it is not so recorded. I also told the police that when we reached near my husband, then I saw that one knife was found embedded in the neck of my husband. Confronted with statement, Ex. PW 7/DA where it is not so recorded. On 2172003, the police had recorded my statement when I identified the body of my husband. However, it is wrong to suggest that I stated in my statement dated 2172003, that my previously made statement was correct. (Confronted Sessions Case No. : 70/10 Pare 25 of 36 with statement under Sec. 161 Cr.P.C dated 2172003, Ex. PW 7/DB portion A to A, where it is so recorded.)"
58. PW 7 had to admit that Guddi PW 13 had come to her house and informed about the beatings given to her husband and again for the sake of repetition it seems that she had deliberately suppressed from giving the name of PW 13 in her examination in chief.
59. Now the other eye witness to the incident is PW 3 Munshed who is the brother of the deceased. Now let us see what he has to say about the incident and his testimony has to bee seen in the light of the other three alleged eye witnesses.
60. According to this witness on the date of the incident i.e on 2072003, he had gone to meet his brother Shahid. In his presence one Pawan came and informed him that Anil was calling him. So according to this witness Shahid accompanied Pawan to meet Anil as he had to collect some amount from him. According to this witness at about 9:15 a.m someone came and informed at house of Shahid Ali that he had been stabbed. So he alongwith his Bhabi i.e Gulshan PW 7 proceeded towards the spot. But according to the prosecution the informer is PW 13 Sessions Case No. : 70/10 Pare 26 of 36 Guddo, who has categorically stated in her cross examination that when she had gone to inform PW 7 Gulshan about the incident except her no one was present in the house.
61. PW 13 has also categorically stated that she came to the spot alongwith PW 7 Gulshan. So there are major contradictions between the testimony of the witnesses about coming to the spot. According to PW 3 he had seen the accused Anil, Pawan, Surjeet and Shakir assaulting Shahid Ali with knives and on seeing them the accused persons ran away.
62. Now before proceeding any further let us see as to whether PW 3 was present at the house of the deceased on the day of the incident or not. Though he has shown his presence in the house of the deceased i.e. his brother. Only two persons could have stated about the presence of PW 3 at the house of Shahid Ali. One was Shahid Ali who is no more and the other is PW 7 Gulshan wife of Shahid Ali. PW 7 has stated in her examination in chief that her brotherinlaw Munshed Ali i.e. PW 3 was also present in the house. But in her cross examination she has stated as follows : "It is wrong to suggest that Munshed Ali had never met Anil Dhiya and Pawan before the incident of Sessions Case No. : 70/10 Pare 27 of 36 this case. Munshed Ali had already come to our house on the date of the incident but he had left the house when he saw that my husband was sleeping. Munshed Ali had come to my house at about 8 / 8:30 a.m on 2072003. I did not wake up my husband when Munshed Ali came at about 8 a.m."
63. So what can be inferred from this statement of PW 7 is that PW 3 might have visited the house of his brother on the day of the incident but he had left the house as stated by PW 7 at about 8 a.m and the information was received by PW 7 Gulshan from PW 13 Smt. Neeru @ Guddo at about 9:30 a.m. So by that time PW 3 was not in the house of his brother Shahid Ali.
64. The very interesting part of cross examination of PW 3 is as follows : "My Bhabi Gulshan was also present there alongwith me when the said lady informed me about the stabbing incident. Said lady had neither disclosed the place of incident nor she had disclosed the names of the assailants. I cannot say whether the lady went alongwith me to the spot or not. I had stated to the police that one lady had informed me about the stabbing Sessions Case No. : 70/10 Pare 28 of 36 of my brother. Confronted with Ex. PW 3/DA where it is not so recorded."
65. But PW 13 has categorically stated that no one else was present with Gulshan i.e PW 7 when she had gone to inform her and Gulshan accompanied her to the spot.
66. PW 7 Gulshan in her examination in chief is taking the names of the accused persons but PW 13 has not disclosed a single name of the assailants to PW 7 because PW 13 has herself not seen the incident. So there are major contradictions in the testimony of the witnesses and it is also surprising that when the lady who had informed PW 3 about the incident had not disclosed him the place of incident then how he reached there when according to him he cannot say whether the said lady accompanied them to the spot. Now he has further made improvements in his original statements about the information having been received by him from the lady.
67. The presence of this witness also becomes doubtful at the spot because the deceased was badly stabbed and he was bleeding profusely and according to this witness instead of chasing the assailants his first concern was to save his brother. But surprisingly his clothes and the clothes of his Bhabi did not Sessions Case No. : 70/10 Pare 29 of 36 get blood stained even though they were taking care of Shahid.
68. PW 3 has also made marked improvements in his statement. He deposed that on 2072003, when he had gone to the house of his brother Shahid accused Pawan came to his house and told him that he was being called by accused Anil. He was confronted with his statement Ex. PW 3/A where it has not been recorded. This witness has also admitted in his cross examination that Ex. PW 3/A which is his statement and recorded on 2072003 was read over to him and thereafter he signed the same.
69. This witness further went on to state that he had disclosed the above said fact in the second statement recorded by the SHO Sultanpuri. But he has not recorded the same. He further deposed that he had even disclosed this fact on 2172003, when his statement was recorded by the police and he had also disclosed this fact when his statement was recorded on 1102003, by SHO Sultanpuri. He has been confronted with his statement Ex. PW 3/DA dated 2072003, supplementary statement Ex. PW 3/DB and DC where it has not been recorded. So this cannot be said to be minor improvements. Improvements made by the witness are major improvements and goes to the Sessions Case No. : 70/10 Pare 30 of 36 root of the matter and throws doubt about his presence at the house of the deceased. He also stated that he had stated to the police that when at about 8:15 a.m he was standing outside the house of his brother Shahid Ali, one lady came and told him t hat his brother had been stabbed. He was confronted with his statements Ex. PW 3/A, PW 3/DA and Ex. PW 3/DB and Ex. PW 3/DC where it has not been recorded.
70. He has also stated that in his statement to the police he told all the 4 accused persons were carrying knives with them and they were assaulting his brother Shahid. He was confronted with his above said three statements where it has not been recorded. He has also stated in his statement to the police that he told that accused Anil was apprehended at the spot and he had identified him after he came there after changing his clothes. Again he has been confronted with his above said 4 statements where it has not been recorded. He also stated that in his complaint Ex. PW 3/A to the police he stated that he alognwith his Bhabi reached to the spot. He has been confronted with Ex. PW 3/A where it has not been recorded. He further statedthat he had mentioned the name of Surjeet @ Kake in his complaint Ex. PW 3/A. He has been confronted with his statement Ex. PW 3/A Sessions Case No. : 70/10 Pare 31 of 36 where it has not been mentioned. This witness in his cross examination stated as follows which is very relevant :
" I had not mentioned the name of Surjeet @ Kake in my complaint Ex. PW 3/A as he was not present at the spot. "
71. So from the discussions hereiabove, it is crystal clear that he was not present at the house of his Bhabi when the information was received by her from PW 13 and he has not witnessed the incident and her presence can also be doubted at the spot even after the incident because his clothes did not get blood stained when he was taking care of his brother who was badly stabbed and bleeding profusely.
72. So all the three public witnesses PW 3, PW 7 and PW 13 are not the eye witnesses to the incident as made out by the prosecution. The only eye witness appears to be PW 10 but she has not uttered a single word against the accused persons and according to her only two persons were giving beatings to the deceased Shahid which lateron culminated into 4 persons on the basis of the statement given by PW 3 and PW 7. So the prosecution has miserably failed to prove that the accused persons were the assailants on 2072003 and killed Shahid.
Sessions Case No. : 70/10 Pare 32 of 36
73. (B) Whether the recoveries are trustworthy and reliable and are connected with the crime ?
According to the prosecution accused Shakir made a disclosure statement and got recovered one country made pistol alongwith live cartridge. The recovery memo is Ex. PW 11/F. No witness has stated that accused Shakir tried to shoot Shahid but the pistol misfired. I am surprised as to how the country made pistol is connected with the commission of crime. According to the prosecution deceased was killed with knife. One of the knife was found embedded in the neck of the deceased and according to the prosecution one knife was recovered at the instance of accused Surjeet on 2572003 vide recovery memo Ex. PW 11/H.
74. The recovery witnesses are PW 11 H.C. Rishi Kumar and PW 21 Inspector Sukhwinder Singh and the seizure memos Ex. PW 11/F and Ex. PW 11/H also bears the thumb impression of one public witness Ram Tirah and H.C. Gajender Singh. Public witness Ram Tirath has not been examined by the prosecution. According to PW 11 H.C. Rishi Kumar accused Surjeet had led the police party to a kachhi gali lane where there was lot of mud and he took out a knife which was found in the mud. The knife was having mud and blood over it. The knife was kept in the Sessions Case No. : 70/10 Pare 33 of 36 piece of cloth and sealed with the seal of SS.
75. PW 21 who is the IO of the case has deposed that accused Surjeet took them in front of AGS Industry and and got recovered knife from the kichar lying in front of factory. The knife was measured and sealed in the pullanda.
76. IO was cross examined and in his cross examination he admitted that as per the disclosure statement of accused Surjeet the knife was hidden at Dabli Haryana but it is quite surprising that when the place disclosed by the accused is Dabli in Haryana why the recovery was effected from Sultan Puri. It is pertinent that there is only one disclosure statement of accused Mohd. Shakir and Surjeet on the record in which the place of hiding the weapon has been stated as Dabli Haryana. No other disclosure statement is on record where the place of recovery is mentioned as AKG Sultan Puri, Delhi. Moreover, it is pertinent to mention here that according to both the recovery witnesses the knife was mud stained. PW 11 has deposed that the knife was mud as well as blood stained whereas according to PW 21 who is the IO of the case, the knife was only mud stained.
77. What appears from the testimony of these two witnesses is that the knife was stained with mud and in the same condition Sessions Case No. : 70/10 Pare 34 of 36 it was put in the cloth and sealed but the perusal of the FSL report shows that the blood was detected on the knife which is Ex. 3 but it gave no reaction. It is quite surprising that when according to the witnesses the knife was lying in kichar how it could be stained with blood. It is also pertinent to mention that the recovery was effected after 4 days of the incident. It is highly improbable that the blood stains would be visible on the knife which was lying in the wet mud/kichar for 4 days. So the recovery of the knife is highly doubtful.
78. (C) What was the Motive behind the murder?
The prosecution, has not been able to prove as to what was the motive for the murder of the deceased. According to PW 3 Munshed Khan who is the brother of the deceased and PW 7 Smt. Gulshan who is the wife of the accused, there was some money transaction between accused Anil and the deceased and on the day of the incident i.e on 2072003, accused Pawan came at the house of the deceased to call him and Shahid (deceased) accompanied accused Pawan to meet accused Anil as he had to collect some amount from accused Anil. But the prosecution has not brought any cogent evidence that there was any money transaction and it has also not brought on record that all the accused persons had any connection with each other or had a common motive to murder the Sessions Case No. : 70/10 Pare 35 of 36 deceased.
79. Here the testimony of PW 18 Inspector Anand Singh is very important. He has categorically stated that till the time he investigated the case, there was no evidence against Anil and accused Pawan on file and he has even cited them as a witness. So in these circumstances, the prosecution has failed to prove the motive behind the murder.
80. (D) Result : To sum up, all the eye witnesses have contradicted each other on all the material aspects of the case to such an extent that they cannot be relied upon to convict the accused persons. The recovery of pistol and knife are also not believable for the reasons discussed hererinabove and the prosecution has also failed to prove the motive.
81. In view of the discussions hereinabove, I am of the opinion, that the prosecution has not been able to prove the case against the accused persons beyond reasonable doubt, all the accused persons are, therefore acquitted. File be consigned to Record Room. (Announced in the open Court on 03022012.) (RAJNISH BHATNAGAR) ADDL. SESSIONS JUDGE II, OUTER DISTRICT, ROHINI COURTS : DELHI Sessions Case No. : 70/10 Pare 36 of 36 Sessions Case No. : 70/10 Pare 37 of 36