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Delhi District Court

State vs . 1. Farukh @ Koyal, S/O Abdul Hafiz on 21 December, 2013

              IN THE COURT OF SH. RAKESH  KUMAR
      ADDITIONAL SESSIONS JUDGE :NORTH EAST:
                     KARKARDOOMA COURTS, DELHI

                                                  SC No.86/2009
                                                  FIR No.38/2009
                                                  PS Shahdara 
                                                  U/s 302/34 IPC


State               Vs. 1. Farukh @ Koyal, S/o Abdul Hafiz
                                     R/o Yamin Ka Makan, Rehman Building,
                                     Shahdara, Delhi.
                              2.  Danish, S/o Mohd. Mulsim,
                                     R/o H. No.767, Rehman Building,
                                     Shahdara, Delhi. 
  


              Date of Assignment.                 :      02.07.2009.
              Date of Arguments.                  :      14.12.2013.
              Date of Judgment.                   :      21.12.2013.
 


­:J U D G M E N T:­

1.

Both the above named accused persons have been charged sheeted and have faced trial for having committed the offence punishable u/s 302/34 IPC.

2. As per the allegations of the prosecution on 04.02.09 at about 10.45 p.m near Sochalaya opposite J & Ka ATM bank main Babarpur road, Delhi, accused Danish and Farukh @ Koyal in furtherance of their common intention along with their co­accused Rizwan (not arrested yet) and Shahbaj (facing trial in juvenile court) had committed murder of Sonu.

3. As per story brought up by prosecution on 04.02.09 at about 11.30 p.m an information vide DD No. 45A was recorded State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.1 of pages 56 at PS Shahdara to the effect that "at 749/1 Rehman Building, West Rohtash Nagar, Delhi teen aadmiyon ne mere bhai ko ghar mein ghus kar chaaku maar diya hai". Inspector Jai Bhagwan along with Ct. Deepak went to the spot i.e. at 749/1 Rehman Building, West Rohtash Nagar, Delhi, where they came to know that the injured had already been removed to GTB hospital by his relatives. From there, they reached at GTB hospital where the MLC bearing no. C­428/09 of one Sonu (who was declared brought dead), was received by Insp. Jai Bhagwan. In the MLC, he had observed two stab injuries marks (one on chest and other below the chest) on the body of deceased. In the hospital one Sunil, the brother of the deceased met them and he claimed to be an eye witness of the occurrence. His statement Ex.PW1/A was recorded in which he informed that he used to run a paan shop in front of J & K ATM at main Babarpur road, where on 04.02.09 at around 10.45 p.m when he and his brother Kamal were present and their brother Sonu came there and asked them to close the shop. In the meantime three boys namely Rizwan S/o Sharif, Danish S/o Mursalim and Shehwaz S/o Nizamuddin came there and Danish demanded 2 cigarettes on credit. When Sunil refused to provide cigarette on credit and Sonu asked them to close down the shop, Danish and his associates got annoyed and started misbehaving with them. Danish gave a slap to Sunil and when Sonu asked Danish as to why he was doing gundagardi, Danish and Rizwan caught hold of him and Shehwaz gave two blows of knife in his body. One blow was sustained in the stomach and the other was in the chest near the heart. On raising alarm by Sunil, people started gathering there. On seeing the gathering, the accused Shehwaz and Rizwan ran away but accused Danish could not escape and State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.2 of pages 56 was apprehended and beaten by the people assembled there. Sonu fell down near the chemist shop. He was removed to his house by Kamal and Sunil and from there he was taken to GTB hospital by Kamal, Sunil and Shallu (wife of deceased). In the hospital, the injured was declared brought dead. He alleged that his brother Sonu was killed by the accused Danish, Rizwan and Sehwaz, to whom he knew earlier. On the said statement, the rukka was prepared and after making endorsement thereupon, the same was handed over to Ct. Deepak for getting the FIR registered. After the registration of the FIR the investigation was handed over to Inspector Ombir Singh who along with his staff members reached at the spot i.e opposite J & K ATM near Toilet Babarpur, Shahdara, Delhi. The copies of FIR were also forwarded to higher officials through the special messenger. On the spot, the Crime Team also arrived, which inspected the spot and photographs of the scene of crime were also taken. IO recorded the statement of Crime Team Incharge, who inspected the spot at the instance of Kamal (an eye witness) and prepared unscaled site plan. IO also recorded the statement of Ct. Tarun, the photographer. IO also lifted the sample of earth control and blood stained earth control from three different places at the spot and he prepared six exhibits, which were kept in separate plastic containers and sealed with the seal of OSP and exhibits were seized vide seizure memoes. Statement of Kamal was also recorded. Thereafter, Ct. Deepak was sent for preservation/custody of the dead body at the mortuary. Then the case property was deposited in the mal khana of PS Shahdara. The statements of Crime Team Officials and also of SI Hukum Singh was also recorded on the next day. Thereafter, Inspector Om bir Singh and Jai Bhagwan went to mortuary where the inquest State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.3 of pages 56 proceedings were conducted. The dead body was got identified by Kamal and Sunil. Inquest form 25.35 (1)(b) and brief facts of the proceeding were also prepared. A request for the postmortem was also made to the doctor and after postmortem conducted by the doctor the dead body, after identification, was handed over to the relatives. The receipt of handing over of the dead body was prepared. The sealed pullanda containing the clothes of deceased alongwith the sample seal of AK received from the doctor, who conducted postmortem was handed over to IO, who seized them vide the seizure memos. IO deposited them in malkhana. The accused Danish, who was apprehended and given beatings by the public was got admitted at GTB Hospital as he had sustained injuries and after his discharge from hospital on 05.02.2009, he was arrested in this case and his personal search was also conducted. Arrest Memo and Personal Search Memo were prepared too. His disclosure was also recorded vide Disclosure Statement. On the basis of disclosure, the spot of occurrence was got identified from accused and the spot identification memo was also prepared at the instance of accused Danish. On 07.02.2009, complainant moved an application before SHO PS Shahdara stating therein the name of one other accused namely Farukh @ Koyal, to be involved in the murder of his brother Sonu. On 08.02.2009 statement of witness Suresh Kumar was recorded U/s 161 Cr.P.C and supplementary statements of Kamal and Sunil were also recorded on that day. On 15.02.2009 accused Shahbaz (juvenile) was apprehended, who was identified by witness Suresh Kumar. On 16.02.2009, accused Shahbaz was produced before Juvenile Justice Board and sent to OBH. Further on 19.02.2009 another accused Rizwan (juvenile) surrendered before the court of Ld. ACMM State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.4 of pages 56 concerned and thereafter, through the Juvenile Justice Board, he was also sent to OBH. Further on 25.02.2009, accused Farukh @ Koyal was arrested in this case, who told of having thrown gupti (weapon of offence) in the Nala. Pointing out Memo in his regard was prepared and on the pointing out of accused Farukh @ Koyal, pointing out memo of place of occurrence was prepared. During investigation, complainant submitted one complaint, stating therein the name of one more accused namely Munawar S/o Maqsood to be involved in the crime. Investigation regarding involvement of said accused in the crime was made and it was found that on finding sufficient evidence against him, the supplementary challan would be filed against the said accused. Thereafter, statements of witnesses were recorded in this case and then on finding sufficient material, charge sheet U/s 302/34 IPC against the accused persons namely Danish and Farukh @ Koyal was filed before the court of concerned Metropolitan Magistrate.

4. After supply of copies etc, Ld.MM committed the case to the court of Sessions where after due deliberation charge charge under Sec.302/34 IPC was framed against the accused persons, to which they pleaded not guilty and claimed trial.

5. Prosecution examined 23 witnesses in all.

6. PW­1 Sunil testified that on 04.02.2009 at about 10.45 PM he alonwgith his brother Kamal was present at his Pan Shop in front of Police Post Rohtash Nagar, where, accused Rizwan, Danish and Shehwaz came and demanded cigarette on credit and when they refused to give cigarette on credit then they all three started man handling with him. Thereafter, accused Danish called his other two associates namely Farukh @ Koyal and Murawar on telephone and both them reached there. Murawar brought knife with him. Accused Farukh @ State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.5 of pages 56 Koyal took knife from Murawar and gave two blows, one on the chest and another on the stomach of his elder brother Sonu (since deceased), who had come for getting the shop closed. He further stated that thereafter, all the persons tried to run away but the accused Danish was apprehended at the spot itself whereas other four got success in running away. Sonu had fallen down near medicine shop, after the injuries. He and Kamal took Sonu to GTB Hospital, where he was declared brought dead. He further confirmed that his statement Ex.PW1/A was recorded by the police in the hospital bearing his signatures at point A. He had identified the dead body of Sonu and his statement to that effect Ex.PW1/B was recorded bearing his signatures at point A. After postmortem dead body was handed over to them. He further stated that the accused Shehwaz was arrested from Welcome after about eleven days of the incident. He further stated that there were five boys involved in the crime namely Danish, Farukh @ Koyal, Shehwaz, Rizwan and Murawar but the police did not arrest all of them. Murawar has not yet been arrested. He further confirmed that it was accused Farukh @ Koyal, who had stabbed his brother with knife taking the same from Murawar. He made written complaint to the senior police officials and the complaint made to SHO on 07.02.2009 is Ex.PW1/C bearing his signatures at point A. Another complaint dated 14.03.2009, photocopy Ex.PW1/D, was addressed to Sr. Officer. He claimed that accused Danish, Shehwaz, Rizwan and Murawar apprehended Sonu whereas accused Farukh @ Koyal had stabbed him. He correctly identified both the accused namely Danish and Farukh @ Koyal in the Court.

During cross examination he stated that his cousin brother namely Ajit had informed the police about the incident from his State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.6 of pages 56 house. The statement Ex.PW1/A was given by him in full senses. His statements were recorded four times. He stated that he is fifth class fail and unable to read and write. The complaint Ex.PW1/C was got written from some other person as the police had not made the name of Murawar in his previous statement. He conceded that he had not read over the contents of Ex.PW1/C before signing the same. His statement was recorded on 05.02.2009 at about 12.30/1.00 AM at the hospital. He conceded that he had not told the IO about non mentioning of the name of accused Farukh and Murawar in his statement as the statement was not read over to him. He stated that clothes of Kamal and Monu might have got blood stain during the course of taking of injured to the hospital. His bhabi Shalu was also with them when they shifted injured to the hospital. The cloths of Shalu were not stained with blood. They shifted injured Sonu to GTB Hospital in rickshaw. He had stated about the manner of incident to his bhabi Shalu. When they reached at the hospital no police official met them. He had not stated the manner of incident nor the names of the assailants to the doctor. He conceded that the place of incident where they are running the pan shop is surrounded by number of shops. They are having a counter of pan shop under an electric pole. When the incident had taken place the market had already been closed, however, some public persons around 10 to 12 came from a dhaba nearby. He further stated that he had visited the spot with police on 06.02.2009 as the mobile phone of brother was also lost. Police officials did not do any written work near their pan shop. He had denied that he had not joined the investigation with the police after 06.02.2009. He claimed that he usually sit alone on Pan Shop, however, some time Kamal also used to sit there. The Pan State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.7 of pages 56 Shop was surrounded by other shops and residential houses. Prior to the incident he and his brothers had no quarrel or dispute with Danish. On the day of incident he remained at the spot through out the day. His house as well as the house of accused Danish are situated at a distance of 2­3 minutes walk from his shop. There are about 15 houses between his house and the house of Danish. On the day of incident Danish came to his shop at about 10.45 PM but he does not know as to what clothes Danish were wearing on the day of incident. Danish did not sustain any injury in the incident nor he had seen any injury on the person of Danish after the incident. His bhabi Shalu and Kamal were also present in the hospital at 12.00 mid night when his statement was recorded. After sustaining injuries, Sonu fell down in front of Ashoka medical shop but at that time it was closed. There were stairs for entering into the shop of Ashok Medical Shop. When he reached Ashoka Medical Shop from his shop, his brother was lying at the stairs of Ashoka Medical Shop with his head against wall. Sonu used to consume liquor but on that day he was not drunk. Sonu was wearing black colour jean and black colour shirt on the day of incident and the blood was oozing out from his chest and stomach. His brother had sustained three stab wounds, one on the chest and two in his stomach. He had seen cut mark on the shirt and pant of the deceased. He and Kamal had lifted Sonu from in front of Ashoka Medical Store. He was wearing pant and shirt of black colour, whereas, Kamal was wearing red colour shirt and blue colour jean on the day of occurrence. His shirt was slightly blood stained from front when he lifted the deceased. Pant and shirt of Kamal had also blood stained in that process. From there, he, Kamal and Shalu took the injured to the auto rickshaw stand. There is five minute walking State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.8 of pages 56 distance between the auto rickshaw stand and Ashoka Medical Store. From there, the injured was taken to GTB Hospital in Fatfat Sewa (Jeep), which used to be parked on the said stand. Further blood had fallen in that jeep also. The injured was in the lap of Kamal in the cycle rickshaw and jeep as well. His bhabi also sustained blood stained marks on her suit. Doctor had asked the name of his brother Kamal, who had admitted Sonu in the hospital. He also stated that first of all his statement was recorded in the hospital, which was started at 12.00 night and continued till 1.30 a.m. His said statement was not read over to him by the police. Police came at the hospital on the telephone call made by his cousin Ajeet. He also stated that he can not read or write Hindi, so he did not go through his statement. Further on that day, statement of his bhabi Shalu was not recorded. Statement of Kamal was also recorded in the hospital at about 2.00 a.m and at about 2.15 a.m, he, Kamal and Shalu left for their house and reached at the house in 15­20 minutes. He further testified that he had not stated to the police in his statement that he himself and his brother Kamal brought the injured to their house from Ashoka Medical Store but on confrontation with his statement Ex.PW1/A, it was found mentioned there. Danish was taken to hospital by police but he could not tell as to when and in which hospital he was taken.

PW­2 Suresh Kumar, an another witness of occurrence, stated that on 04.02.2009 while returning from a birthday party when at about 10.30/10.45 PM, he reached at the shop of Pan Bidi belonging to Sunil, near Police Post Rohtash Nagar and purchased Bidi and Match Box from him, three boys came there and demanded cigarettes from Sunil. When Sunil refused to give cigarette on credit and stated that it was the State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.9 of pages 56 time of closing of shop, accused Danish (present in court) slept him. At the same time, Sonu (brother of Sunil) also came there and asked why boys had gathered there and shouting. All three including Danish challenged him and then they made call to their friend and then two boys came there on motorcycle and the boy, who was the pillion rider took out knife and gave the same to accused Koyal (the motorcycle rider) and the accused Koyal firstly challenged the public persons and than gave stab injuries to Sonu. Thereafter, all those boys again challenged the public gathered and ran away from there. Meanwhile, Kamal also reached there and took the injured Sonu in a rickshaw to some clinic/hospital. He correctly identified the accused Koyal and confirmed that police had recorded his statement.

During cross examination he stated that it was the birthday party of the grandson of his friend namely Iqbal Singh and at the house of Iqbal Singh he reached at about 9.00 PM. Kamal (the brother of Sunil and deceased Sonu) and Shallu (wife of deceased Sonu), were earlier known to him. The distance between the house of Sunil and his house can be covered in 15 minutes on foot and there are two other shops of pan bidi in between his house and the shop of deceased. When he reached at the shop of Sunil, he was alone there. The shop of Seerawala is in front of the shop of Sunil and it is situated in a thickly populated area. At that time, all the surrounding shops were closed. He left the spot after arrival of police and removal of injured to hospital. Sonu was present outside the Khokha at the distance of 2 feet when he was stabbed. Blood oozed from left of his chest and abdomen after stabbing. There were two wounds on the body of Sonu, who fell down at some distance i.e. 10/15 paces on the road when State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.10 of pages 56 he started walking towards his house. There was a police booth and a medical shop near the shop of Sunil and two police officials were sitting in the police booth when he reached at the shop of Sonu. The police booth was at a distance of 10 yards from the Khokha of Sonu. Kamal and Sunil reached at the spot after 15 minutes of stabbing of Sonu. Shallu did not come at the shop and she fell unconscious at her house and this fact he came to know in the hospital. Sunil and Kamal were wearing red colour shirts, whereas pants were black and blue respectively. Kamal lifted Sonu from the road in his lap. Monu cousin brother of deceased started his motorcycle and Sonu was made to sit on motorcycle in between Monu and Kamal and the same was being driven by Monu and in the process pant and shirt of Kamal got stained with blood of Sonu. Firstly, Sonu was aken to the shop of Dr. Sunil but it was found closed and from there, he was taken to main road in a rickshaw and from there he was taken to hospital in Fatfat Sewa Jeep. None amongst himself, Sunil or Kamal went to call the police from police booth. Police met him first time in the hospital. First of all police recorded the statement of Sunil at 3.00/3.30 a.m in PS Shahdara. The statement of Kamal was also recorded at the police station by the police whereas th police recorded his statement on 25 February and he did not give any statement to police on 08.02.2009 nor the police met him on that day. He conceded that he is the phupha of deceased Sonu. He stated that on the day of occurrence, Danish was wearing shirt and jeans but he had not observed any injury on the person of Danish as he was busy in taking Sonu. He had not seen the knife by which injuries were caused. He met police three­four times between 04.02.2009 to 08.02.2009 and on 25.02.2009 when his statement was State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.11 of pages 56 recorded at PS Shahdara, he was accompanied by Dinesh (the uncle of Sunil). However, statement of Dinesh was not recorded on 25.02.2009 in his presence. On the day of occurrence, he did not visit the house of Sonu, rather, he went there after his returning from hospital and at that time Shallu was not there. She had gone to hospital alongwith 4­5 other ladies. He had witnessed the incident from the distance of 2 paces but he did not intervene as the accused were having knife and there was a stemped. He did not raise any hue and cry. Police had not come to the spot as they were having liquor and had bolted the picket from inside and this fact was told to him by Monu.

During cross examination by Ld. Counsel for accused Farukh @ Koyal he conceded that he did not assist Kamal and Monu in taking the injured to the hospital. Police came to the spot after 15­20 minutes. He claimed that when he reached at the house of deceased at 12.30 AM, he had met Sunil there, who told him that all the inmates of the house had gone to the hospital.

PW­3 Kamal confirmed that the incident had occurred on 04.02.2009. He was sitting in the pan shop of his younger brother Sunil at 10.45 PM and his elder brother Sonu also came there. Three persons namely Rizwan, Danish and Shehbaz came to the shop and demanded cigarette on credit to which Sunil stated that he will not give cigarette on credit. Accused Danish gave two slaps to Sunil. When Sonu asked Danish as to why he was doing gundagardi, Danish threatened him that they would teach him a lesson as he was trying to show off. Danish made a telephone call and called two boys and two boys namely Munawar and Koyal arrived there on motorcycle. Munawar was having a gupti (knife) in his hand.

State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.12 of pages 56 Accused Koyal gave two blows of knife on the person of Sonu after taking it from the hand of Munawar. Accused Rizwan, Danish, Shehbaz and Munnawar had caught hold of Sonu when Koyal had given him knife blows. One knife blow landed on stomach and other at the heart of Sonu. He raised hue and cry that his brother had been assaulted and 10­15 people gathered at the spot. Accused Danish was apprehended at the spot, whereas other accused persons managed to escape away. His uncle's son came at the spot on his motorcycle and he had taken the injured to the hospital. On the way, he stopped at doctor's shop but it was closed and then he shifted the injured on a rickshaw till the chowk and from there he took the injured to the GTB Hospital in a phatphat seva. In the hospital, Sonu was declared brought dead. His brother Sunil and his bhabhi had also reached at GTB Hospital. He came back to his house. Since his brother had fallen down near Ashoka Medical Store, so lot of blood was lying at the spot. Police lifted blood samples and earth control by breaking the concrete slab and all the same were seized vide Seizure Memo Ex.PW3/A, B & C bearing his signatures at point A thereupon. He had identified the accused Danish in the police station. Danish was arrested vide Arrest and personal search memos Ex.PW3/E & E1 respectively both bearing his signatures at point A. From police station, he went to GTB Hospital where he had identified the dead body vide memo Ex.PW3/F. On 05.02.2009 he received the dead body of deceased and performed his last rites. In his presence the clothes and shoes of accused Danish were also seized by police vide memo Ex.PW3/G. On 25.02.2009, accused Koyal was arrested at his pointing out from near Shahdara Metro Mall and arrest documents Ex.PW3/H and H1 were prepared which State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.13 of pages 56 bear his signature at point A. During cross examination by Ld. Addl. PP he denied that the accused Danish and Rizwan caught hold of his brother Sonu and accused Shehwaz took out a knife and gave two knife blows to Sonu, one at his stomach and other near his heart. He confirmed that he came back to the spot alongwith SI Jai Bhagwan, where the police officials had inspected the spot and prepared site plan Ex.PW3/J at his instance. Further six sample of blood stained earth and earth control were lifted from the spot and same were kept in small plastic bottle and sealed. He identified the wearing cloths of accused Danish i.e. shirt of orange black strips, blue colour jean and one pair of shoes of black and white colour as the belonging of the accused Danish as Ex.PW1, P2 & P3 which were seized vide seizure memo Ex.PW3G.

During cross examination he stated that on 04.02.2009 he came to his house at about 10.30 p.m and at that time there was no function in the gali. After changing his cloths he came to his pan shop and at that time he was wearing black pajama and red shirt. The distance between his house and pan shop is two minute walking distance. At that time the dhaba situated behind the pan shop and the ATM opposite to the pan shop, were opened. One security guard was present at that time inside the ATM. Two police men were present in the police booth situated approximately 10­15 paces from the pan shop. Sonu was wearing blue colour jean, black baniyan and jacket of chocolate colour. The main gate of the pan shop (khoka) opens towards western side. Shop is visible from the police booth. Sunil went to the police booth but the police men sitting inside the booth did not open the door as they were taking liquor at that time. At the time of incident he was inside the State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.14 of pages 56 pan shop. He and Sunil raised alarm when the incident started. The accused persons except Danish ran away from the spot. The normal closing hours of closing the pan shop was 10.30/11.00 p.m. Sunil was wearing black colour pant and shirt. There was no blood stains inside the pan shop. The medical store is at a distance of about 5 paces from the pan shop. The deceased Sonu after sustaining injury remained lying opposite the medical store for approximately five minutes and at that time his face was towards the ground. He had not noticed whether his cloths got blood stains in the process of removing Sonu to the shop of Dr. Sunil and GTB Hospital. The blood was oozing out slowly from the injuries of Sonu slowly at the time when they removed him from the ground opposite medical store. The wearing jacket of the deceased was some what wet. Sunil met him in GTB Hospital, who arrived in the hospital after their reaching there. Sunil had given the name and address of Sonu to doctor. Suresh, a customer, might have informed Shalu about the incident. Suresh was also present at the time of occurrence. He remained in the hospital till 12.30 a.m but by that time police had not met him. Shalu had reached GTB Hospital after about 10/15 minutes of his reaching there. From the hospital, he reached at the shop and from there he was taken to PS where the police made inquiries from him about the incident. Police had not written his narration completely and in this regard he made a written complaint to SHO on 07.02.2009. The said complaint was written by Monu upon his dictation and the complaints given to SHO, ACP and DCP were signed by his brother Sunil. He did not sign on the same. Police had recorded his statement only once, to which he had signed in Hindi. In his presence the statement of Sunil was not recorded on 05.02.2009. He further State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.15 of pages 56 stated that he had not seen as to where accused Danish had sustained injuries. He had neither stated to police in his statement that he shifted his brother on a rickshaw till the chowk and then from there he took his brother to the hospital in fatfat sewa nor that his brother Sunil alongwith his bhabi had also reached at GTB Hospital and he came back to his house. He reached at his house at about 5.00 a.m in the morning. He also stated that to his knowledge, Danish did not owe any money to Sunil, who was running a pan shop. He conceded that there was no prior quarrel or fight between accused Danish and him & his brothers. He could not tell as to who made call to PCR 100 number. Further he had not informed the PCR on 100 number that some known persons had stabbed his brother.

During cross examination by Ld. Counsel for accused Farukh @ Koyal he stated that police never met from the time quarrel had taken place and till the time when he took his brother to the hospital. He had informed the police station regarding the mode and manner of the incident before 12.30 a.m on the night of 4/5.2.2009 verbally. On the next date of the incident, he went to the police station alongwith his chacha and then in the PS, he came to know that his statement was not recorded correctly and some part of his statement was left. He had asked the police officer, who had registered the FIR. He could not tell as to whose clothes were stained with the blood till the time he had admitted his brother in the hospital. He denied that accused Farukh was not present at the spot at the time of incident.

PW4 SI Brahampal Singh is the Duty Officer, who registered the FIR of the instant case on the basis of rukka sent by SI Jai Bhagwan through Ct. Deepak. He proved on State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.16 of pages 56 record, the computerized copy of FIR as Ex.PW4/A and also his endorsement made on rukka as Ex.PW4/B. PW­5 L/Ct. Atika is the official, who had received the information regarding the incident and the said information she passed on wireless. She proved on record the PCR form as Ex.PW5/A. PW­6 HC Manoj Kumar is the official, who recorded DD no.45­A and proved on the same on record as Ex.PW6/A. PW­7 Dr. Rahul Sharma is the doctor, who prepared the MLC no. C­482/09 Ex.PW 7/A of Sonu, confirmed that on 04.02.2009 at about 11.30 p.m, one patient Sonu was admitted in the hospital by his wife Shalu, with the alleged history of stabbed injuries. He declared the patient brought dead in the casualty at 11.30 p.m. During cross examination, he stated that name Shalu was disclosed by the wife of deceased and only then he had mentioned it in the MLC. He had not seized and sealed the clothes of the deceased and the body was sent to mortuary.

PW­8 Tarun Kumar Sharma is the photographer, who took six photographs of the spot of blood, which was lying at the spot. He proved on record the said photographs as Ex.PW 8/A (1 to 6) (colly.) and negatives thereof as Ex.PW 8/B (1 to 6) (colly.).

During cross examination by Ld. Counsel for accused Danish he stated that he remained at the spot for about 30 minutes. He could not tell if public persons were present there or whether there was any police booth near the spot or whether the In­charge of Crime Team submitted any report in writing to the IO or not.

PW­9 Ct. Deepak, who accompanied SI Jai Bhagwan to the spot i.e. 749/1, Rehman Building, Shahdara on receipt of State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.17 of pages 56 DD No.45A by SI Jai Bhagwan, stated that at the spot it was revealed that injured had already been removed to GTB Hospital and accordingly they went to GTB Hospital, where IO SI Jai Bhagwan received the MLC of Sonu, who was declared brought dead. He further stated that he had observed two stabbed injuries on the left side of the body of deceased. In the hospital IO recorded the statement of Sunil and put his endorsement on the same and handed over the same to him for getting the FIR of the instance case registered. Accordingly, he got registered the FIR in the instant case. He also stated that rukka and copy of FIR was handed over by him to Insp. Om Veer Singh in the PS and then he alongwith Insp. Om Veer Singh reached at the spot. Insp. Om Veer sent him to Mortuary GTB Hospital for preserving the dead body. He also stated that in the morning, doctor of the hospital handed over to him one pullanda and one envelope duly sealed with the seal of AK and he handed over the same to IO, which was seized by him vide Seizure Memo Ex.PW9/A, bearing his signature at point A. He also stated that accused Danish (correctly identified) was present in the hospital, where he was under treatment. His uncle (chacha) produced him in the PS. During cross examination by Ld. Counsel for accused Danish he conceded that he had gone through the contents of DD no.45A dated 04.02.2009 and in the said DD it is written that "three persons had killed my brother with a knife after entering in his house". He also stated that they reached at the spot at about 11.20 p.m and about 20­25 public persons were present there and they all were saying that they are the eye witnesses. He could not tell if IO had noted down their names and addresses or not. There was police booth near the spot, where one constable was present but IO did not make any State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.18 of pages 56 enquiry from that constable, at that time. They remained there for about five minutes. No police officer remained at the spot to guard the spot. They reached GTB Hospital at about 11.45 p.m and remained there for about one hour. Wife and brother of injured Sonu namely Shalu and Sunil respectively, met them in the hospital and IO recorded the statement of Sunil at about 12.30 a.m, outside the gate of ICU. He stated that statement of Shalu was not recorded in his presence. There was blood stains on the shirt of Sunil and the shirt was not taken in his presence. Accused Danish was in emergency ward and no one from his family was present there. He reached PS at about 12.55 a.m with rukka and remained there for about 20­25 minutes. He handed over the FIR to Insp. Om Veer Singh in PS and he came back to the spot at about 1.15 or 1.20 a.m. No eye witness was available a the spot at that time. Danish was having head injury. There were blood stains on the clothes of Danish. He also stated that blood was lying on two places at the spot, out of which one place was the slab of the shop and other was on the road.

PW­10 ASI Tahir Hussain is also the witness, who had joined the investigation with the IO Insp. Omvir, SI Jai Bhagwan and Kamal (brother of deceased) and during investigation, they reached Shahdara Chowk. He stated that IO had received secret information near Shahdara Mall and he accompanied him, where Kamal had identified one Farukh to be the person, who had killed his brother. Said Farukh was apprehended and arrest documents Ex.PW3/H & Ex.PW3/H1 were prepared. Accused Farukh was interrogated by the IO and he was taken to GTB Hospital for his medical examination. Further on 26.02.2009, accused Farukh had taken them and pointed out the place at 66 Futa Road vide Pointing Out Memo State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.19 of pages 56 Ex.PW10/A. He also stated that Disclosure Statements of accused was also recorded vide Ex.PW10/B & Ex.PW10/C. During cross examination by Ld. Addl. PP for the State he stated that accused Farukh had also pointed the place on 66 Futa Road, near nala while stating that he had thrown the gupti after its use in the running water on the nala and pointing out memo in this regard Ex.PW10/D was prepared. He also conceded that accused had also pointed out the place below GT Road, Shahdara Flyover, Tata 407 Tempo Stand, where he had thrown the gupti after use, which was given to him by Shehwaz.

During cross examination by Ld. Counsel for accused Farukh @ Koyal he stated that on 25.02.2009, they left the police station in between 7/7.30 p.m. He could not tell as to when the informer gave the information. He conceded that neither any public person was joined in the investigation after receiving the information from Shahdara Chowk nor anybody from public was joined in the raiding party after reaching the Metro Mall. The information of arrest of accused was given to his relative through phone by the IO, who came after some time. Further no public person was joined in the investigation at the time of writing work done on 25.02.2009. He again joined the investigation on 26.02.2009 after 8.00 a.m and IO made departure entry in this regard. From the PS, they had proceeded towards the nala at 66 Futa Road. No public person was joined on reaching there. He conceded that no public witness was joined at any point of time during the course of th th investigation on 25 and 26 February, 2009.

PW­11 Constable Kusum Lata is the official, who on 04.02.2009 at about 23:01:20 hours received a call in Police Control Room from mobile no.9911212092 about the incident State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.20 of pages 56 that "teen admiyo ne hamare ghar mai ghus kar mere bhai ko chaku mar diya hai" and she immediately transmitted it in District net and also conveyed the said information to Command Room. She proved on record the PCR call as Ex.PW11/A. PW­12 Insp Jai Bhagan, one of the IOs of the case, testified that on 04.2.2009 at about 11.03 p.m, on receipt of DD No.45­A Ex. PW 6/A, he alongwith Ct. Deepak went to the spot at 749/1, Rehman Building West Rohtrash Nagar and on reaching there, he came to know that injured had been removed to GTB Hospital by his relative and then he along with Ct. Deepak reached at GTB Hospital, where he received the MLC bearing MLC C­428/09 of one Sonu, who was already been declared brought dead. He had observed two stab injury marks on the left of the body i.e. one on chest and other mark below the chest. In the hospital, he recorded the statement of Sunil, brother of deceased, Ex.PW1/A and made his endorsement Ex.PW12/A on the same and handed over it to Ct. Deepak for getting the FIR registered in this case. Thereafter, further investigation of the case was marked to Insp. Omvir Singh, who alongwith Ct. Deepak arrived at the spot. On the same day at about 3.00 p.m, when he was present in the PS, Ct. Deepak brought a pullanda, duly sealed with seal of AK along with sample seal, containing the clothes of the deceased from the hospital and same were produced before Insp.Omvir Singh, who seized the same vide memo Ex. PW 9/A bearing his signatures at point­B. He also stated that from the hospital, Ct. Deepak brought accused Danish to PS for interrogation, who was duly interrogated by the IO and disclosure statement of accused Danish Ex.PW12/B was recorded, which was signed by him at point­A. The clothes of State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.21 of pages 56 accused Danish were also taken into possession vide memo Ex.PW­3/G signed by him at point­B. Said clothes were sealed in the pullanda with the seal of OSP. Accused Danish was arrested vide memo Ex.PW­3/E and his personal search was conducted vide memo Ex.PW­3/E­1, signed by him at point­A. Accused Danish had led them to the place of occurrence and pointed out the place of occurrence vide memo Ex.PW­12/C. One Kamal had also joined in the proceeding held against accused Danish on 5.2.2009. Proceeding in respect of juvenile in conflict with law was also conducted. Further on 25.2.2009, he had again joined the investigation of the present case along with IO and HC Tahir Hussain. IO had arrested the other accused Farukh @ Koyal from near Shahada Mall near Rehman Building vide arrest and personal search memo Ex.PW3/H and PW3/H­1 respectively signed by him at point­C. He also stated that accused Farukh (correctly identified) was under the influence of liquor on that day. He was got medically examined in GTB Hospital. Further on 26.2.2009 he was taken out from the lockup and interrogated and his disclosure statement Ex.PW10/B signed by him at point­A, was recorded. They went under the Shahdara Fly Over Tempo Stand where accused Farukh pointed out the place, vide pointing out memo Ex.PW10/E, where he had thrown the gupti i.e which was the alleged weapon of offence.The accused was again interrogated and he made supplementary disclosure statement Ex.PW 10/C signed by him at point­B wherein he disclosed that he had falsely stated about throwing the weapon of offence under the Shadhara Fly over and that in reality he had thrown the weapon of offence near the nala 66 Futa Road. Thereafter they reached the spot, where accused pointed out the place of throwing the weapon of offence i.e Gupti, vide pointing out State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.22 of pages 56 memo Ex.PW10/D, but nothing could be recovered. The accused then led them to the place of occurrence and pointed out the spot vide pointing out memo Ex.PW­10/A. He again joined the investigation of the present case on 17.4.2009, accompanied by SI Draftsman Mukesh Jain and complainant Sunil and at the instance of the complainant the draftsman had taken rough notes and measurement. IO had handed over the dead body after postmortem on the same day i.e. 5.2.2009 and a receipt Ex.PW 12/D signed by him at point­A. During cross examination by Ld. Counsel for accused Danish he stated that he had reached the spot within 10­12 minutes of receipt of DD and at that time he had not made any inquiry as to who were the family members of the injured and who were the public persons, who had seen the occurrence. He claimed that he had not observed any blood stains near the house. He had gone through the contents of DD No.45­A and the phone number 9911212092 mentioned in DD No.45­A was disclosed by Sunil, as belonging to him. He reached GTB Hospital at about 11.30 p.m and at that time injured was in casualty in the hospital. At that time, he did not know that accused Danish was also admitted in the hospital and after about two hours, on the same day, he came to know about the said fact through duty constable. In his presence statement of duty constable was not recorded. He had not made inquiries about the ward number in which Danish was admitted as he was assigned with some other work. Further in his presence Insp. Omvir had not visited GTB Hospital. He remained in the hospital till about 12.45 a.m. He had not met accused Danish in the hospital as he did not think it necessary to meet him. It was not clear that the Danish, who was admitted in the hospital was the same Danish, who was named in the statement of the State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.23 of pages 56 complainant. He had met two brothers namely Kamal and Sunil and wife Shalu of deceased in the hospital. He had seen the MLC of the injured/deceased and as per MLC, injured was admitted in the hospital by Shalu. He could not confirm if he observed blood stained on the clothes of Kamal, Sunil and Shalu. Sunil was wearing white shirt & black pant, whereas Kamal was wearing reddish shirt. The investigation of this case remained with him for 2½ hours. He recorded the statement of Sunil in the hospital at about 12.00 mid night and concluded the same at 12.40 a.m. He again reached at the spot i.e scene of crime Pan Khoka about 1.15 a.m and at that time Sunil was accompanied with him. Ct. Deepak and IO reached after his reaching at the spot. No public person was present at the spot at that time. Pan Khoka was locked. The police booth was at a distance of 10­12 steps from Pan Khoka. He did not visit the police station after 1.30 a.m in the night of the incident and he went in search of the accused persons. At about 3.00/4.00 a.m, he came to know through IO that accused Danish, who was admitted in the hospital was the same persons who was had been named in the complaint by the complainant. On that night, statements of Kamal and Shalu were not recorded in his presence. He admitted that even after coming to know the fact that accused Danish in under treatment in the hospital, he did not go to meet him. He went in search of accused Shehwaz and Rizwan at Photo Chowk, Welcome and Rehman Building. He had also gone to the house of Yamin. His statement was recorded on 5.2.2009 at about 9.00/10.00 p.m. He could not tell if Kamal and Sunil were present in the PS at that time or not. He also could not tell whether Danish had sustained any injury on his body or not. He further could not tell if IO collected the MLC of accused Danish or not.

State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.24 of pages 56 During cross examination by Ld. Counsel for accused Faurkh @ Koyel he conceded that he wrote Ex.PW1/A on the basis of the facts and whatever was stated by the complainant Sunil Rawat and after recording the same, he read it over to the complainant and after hearing the same and admitted it to be correct the complainant signed at point­A. He further conceded that no public witness was joined when the accused Faurkh was arrested or at the time when the accused allegedly made disclosure statement.

PW­13 Dr. Anil Kohil is the Expert witness from the Department of Forensic Medicine GTB Hospital and he testified that on 05.2.2009 at 11.30 a.m he conducted the postmortem on the body of Sonu S/o Munna Lal vide P.M Report No.125/09, which is Ex.PW13/A. The body was wearing blue T­shirt, black Jeans with black belt, white banyan, brown underwear, pair of green socks and left foot sport shoes. The clothes had blood stains on them and banyan and T­shirt had cuts corresponding to the external injuries. He made the following observations:­ ANTEMORTEM INJURIES.

1. Incised stab wound 2.5 c .m. x0.3 c.m. Spindle shaped with clean cut margins present over left side front of chest placed 15 c.m below clavicle bone and 7 c.m left of mid line. The wound was going upwards medially and posteriorly cutting the fourth intercostal muscle, diaphragm, pericardial sac and terminated after cutting the wall of the right ventricle of the heart and entering the cavity. The length of track of wound was 10.5 c.m.

2. Incised stab wound 1.5 c.m. X 0.2 c.m present over left side of abdomen placed 4.4 c.m below State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.25 of pages 56 the rib cage and 14 c.m left of mid line. Spindle shaped with clean cut margins and the track of the wound was going upwards, medially and posteriorly in the soft tissues of the abdomen throughout. The length of track was 5. c.m.

3. Incised wound 1. c.m. X 0.3 x 0.4 c.m. present over ventral aspect of lateral portion of terminal phalanx of right middle finger.

4. Red abrasion 2.5 c.m. X 1.5 c.m present over left side of abdomen.

5. Red abrasion 1 c.m. X 1 c .m. present over left side of abdomen 1 c.m. Above injury number 4. On internal examination abdominal cavity and pericardial sac contained blood and blood clots. The stomach was full of semi digested food material. The organs were pale.

Item preserved­ Clothes as mentioned earlier, blood on gauze piece.

OPINION The time since death in this case was about half a day. The cause of death was hemorrhagic shock due to antemortem stab injuries to the heart produced by sharp edged weapon. Injury number one was sufficient to independently cause death in the ordinary course of nature.

He stated that Postmortem report Ex.PW13/A is in his hand writing and it bears his signature at point­A. He correctly identified the clothes of deceased i.e. blue colored T­Shirt, a banyan, one sport shoe, a pair of socks, one black color jeans, one belt and one underwear to be the same which he had seized on the day he conducted postmortem. He confirmed that all the articles/clothes bear his signatures. Blue T­shirt, Banyan, Sport Shoe, pair of socks, black jeans, belt and State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.26 of pages 56 underwear are proved on record as Ex. P­4, Ex.P­5, Ex.P­6, Ex.P­7, Ex.P­8, Ex.P­9 & Ex.P­10 respectively.

During cross examination by Ld. Counsel for accused Danish he stated that the T­shirt and banyan, all blood soaked, are having one cut mark on the left side. There is also second cut mark, as per the corresponding injury, as mentioned by him in his postmortem report. Apart from the two cut injury, as mentioned by him in his postmortem report, there is no other cut mark on the abdomen and chest, however abrasions were there. The semi digested food found in the stomach of the dead body could have been from 4 to 6 hours before death. He also stated that there could be variation (Margin) of 3 hours on either side in the time since death, which in this case was 12 hours.

PW­14 SI Mukesh Kumar Jain, is the Draftsman, who proved on record the scaled site plan Ex.PW­14/A, signed by him at point A. He stated that after preparation of site plan, he had destroyed the rough notes and measurement.

During cross examination by Ld. Counsel for accused Farukh he stated that he had shown the police booth in his site plan and it was near to the spot. He had not met any police officer in the police booth. He has not made any entry or memo with regard to the destruction of the rough notes.

During cross examination by Ld. Counsel for accused Danish he stated that he had not seen the site plan prepared by the IO earlier.

PW­15 SI Balashankaram testified that on the intervening night of 04/5.2.2009 at about 01.00 a.m on receipt of information, he went to the spot main Babarpur Road in front of J & K Bank along with Ct. Tarun Photographer and other members of the team, where the Photographer had taken State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.27 of pages 56 the photographs. IO had collected the exhibits. He proved on record his report as Ex.PW­15/A signed by him at point A. During cross examination by Ld. Counsel for accused Danish he stated that he reached at the spot at about 1.30 a.m and at that time some public persons were there. No public witness was joined by the IO. SI Jai Bhagwan was present at the spot when they reached there. After his reaching, the SHO also came at the spot. The blood was lying near edge of the road. He could not tell the number of places where the blood was lying. There was police booth near the spot. Some police officers were present there. He could not tell if the pan khokha was opened or not as he was busy in his work.

PW­16 HC Rajesh Kumar, is the witness, who on intervening night 4/5.2.2009 at about 11.03 p.m., received a call from the Distt. Control Room, North East having call sign B­50 and passed on the said information to the Duty Officer on intercom. He confirmed that he had made an entry in the Lock Book in this regard, the photocopy of which is Ex.PW­16/A. During cross examination by Ld. Counsel for accused Danish he conceded that as per information received, ''at house No. 749 /1 Rehman Building West Rohtash Nagar, three persons entered into the house and stabbed my brother.''.

PW­17 HC Sanjeev Kumar is the official, to whom Duty Officer ASI Dharampal had handed over two envelops to be delivered at the residence of the Ilaqa Magistrate, Addl. DCP, DCP and Joint C.P. PW­18 SI Hukum Singh testified that on 5.2.2009 he along with IO Insp. Omvir Singh and Ct.Deepak left for the investigation of this case at about 2.20 a.m and after five minutes, reached at the spot near Babar Pur Road, near J and K Bank ATM where SI Jai Bhagwan along with Kamal and State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.28 of pages 56 member of the Crime Team met them. From there, IO sent SI Jai Bhagwan for the search of accused persons, whereas, Ct. Deepak was sent to GTB Hospital for guarding the dead body in the mortuary. IO recorded statement of incharge of Crime Team SI Balanakanan and Ct. Tarun photographer and thereafter at the instance of Kamal, IO inspected the spot and prepared site plan. IO also lifted blood sample lying on the slab with the help of hammer. IO also lifted the sample of earth control and blood stained earth control with help of hammer. IO also lifted blood sample and earth control from the slab placed upon the drain. IO also lifted blood sample lying on the road as well as the earth control. IO prepared six exhibits and kept them in separate plastic dibbi and sealed them with seal of OSP. All these exhibits were seized vide memos Ex.PW3/A, Ex.PW3/B, Ex.PW3/C and Ex.PW3/D bearing his signatures at point­B. During cross examination by Ld. Counsel for accused persons, he could not tell as to who had signed the site plan as witness. He stated that no public person was present there except Kamal. Statement of Kamal was recorded at about 3.30/.400 a.m. SI Jai Bhagwan left the spot after 10­15 minutes of his reaching the spot. Pan Khoka was closed. The khoka was not got opened in his presence.

PW­19 HC Akhileshwar, the then MHC(M) at PS Shahdara testified that on 05.02.2009, Inspector O. S. Panwar deposited with him 9 pulandas out of which seven pulandas were sealed with the seal of OSP and two pulandas were sealed with the seal of AK. He deposited all the pulandas in the malkhana vide serial entry no. 2518. Further on 24.03.2009, pullandas were sent to FSL Rohini through Ct. Ravinder vide RC No. 8/21, but the pulandas were not State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.29 of pages 56 deposited in FSL on that day. Again on 26.03.2009, the said pulandas were sent to FSL Rohini through Ct. Ravinder vide RC No. 9/21. On 02.11.2010, Ct. Rinku had gone to FSL and deposited in the malkhana 9 sealed pulandas and the FSL report was handed over to the IO. The said entry is in the handwriting of HC Sardar Singh, which he identified. He also stated that the other entries are in his handwriting, photocopy of which is Ex.PW­19/A. He had also written the RC No.9/21, photocopy of which is EX. PW­19/B. He further stated that the case property, while in his possession, was not tampered with.

During cross examination, he stated that the case property was deposited with him at about 03:00 pm. PW­20 Ct. Ravinder Kumar, is the witness who on 26.03.2009 took 9 sealed pulandas from MHCM HC Akhileshwar vide RC No. 9/21 and deposited the same in FSL Rohini and returned back an acknowledgment copy to MHCM.

PW­21 Sh. Naresh Kumar (Senior Scientific Officer, Biology, FSL Rohini) testified that on 26.3.2009 eight sealed cloth parcel and one sealed envelop were received in their office through one Constable Ravinder Kumar with forwarding letter of SHO Shahdara for examination and opinion. Out of nine parcels, seven parcels were sealed with seal of OPS, one cloth parcel was sealed with seal of AK and one envelop was sealed with seal of AK. It was marked to his for examination and opinion. He opened the parcels and on opening Parcel No. 1, it was found containing cement pieces having brown stains slabs pieces. On examination blood of human origin was thereon. Further on opening Parcel No.2, it was found containing cement pieces descried as earth control of slabs pieces, which were taken out. On examination no blood was found thereon. Further on opening Parcel No.3, it was found to State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.30 of pages 56 contain cement concrete pieces described as blood stained Slabs pieces, were taken out. On examination blood of human origin was found thereon. Further on opening Parcel No.4, it was found to contain cement pieces descried as earth control of slabs pieces. They were taken out. On examination no blood was found thereon. Further on opening Parcel No.5, it was found to contain cement concrete pieces described as blood stained road earth. They were taken out. On examination blood of human origin was thereon. He also opened the parcel No.6, and it was found to contain cement pieces described as earth control. They were taken out. On examination no blood was found thereon. Further on opening Parcel No.7, it was found to contain three exhibits marked as 7­a(one jeans pant) (Ex.P1) 7­b (one shirt) (Ex.P2) and 7­c (one pair of shoes) (Ex.P3) and they were taken out. On all these three exhibits human blood was found. Further he opened the Parcel No.8, sealed with the seal of AK, it was found to contain seven exhibits marked as 8­a (one T shrit having brown stains) 8­b (one baniyan having brown stains), 8­c (one underwear having few brown stains) 8­d ( a pair of socks) 8­e (one shoe) 8­f (one pant) and 8­g (one belt). They were taken out. On examination human blood was found on all exhibits except 8­d. On further grouping human blood of B­group was found on 8­a, 8­b, and 8­f. He also stated that he opened the sealed envelop number 9, sealed with the seal of AK and it was found to contain dark brown gauze cloth pieces described as blood gauze of deceased. On examination human blood of B­group was found thereon. After examination, remanent of exhibits were sealed with the seal of NK FSL Delhi. He also stated that his report and biological/serological report were prepared in his office on his dictation, which he identified. The report is Ex.PW21/A State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.31 of pages 56 bearing his signatures at point­A on all the three pages.

PW­22 Smt.Shalu (wife of deceased) testified that the occurrence was of 4.2.2009. She was present at her residence. Her husband was doing work of cable. He had gone to the beetle shop of his younger brother. At about 11.00 p.m, she reached near the beetle shop and saw that her husband Sonu was caught hold by his brother­in­law (devar) namely Sunil and Kamal. She saw the injury on the chest and stomach of my husband. Her husband was not in a position to speak. He was initially taken to nearby doctor and thereafter in an auto to G.T.B Hspital. She stated that after checking, doctor declared her husband brought dead.

During cross examination by Ld. Counsel for accused Danish she stated that her statement was recorded by the police after about 2­3months of the incident. On 01.5.2009, police officials met her in the hospital. On 4.2.2009 she was alone at her house. Her husband had come to the house on the day of the incident at about 10.00 p.m, after his work. Her devar Sunil and Kamal were at the shop at that time. Further on reaching at the beetle shop she saw many persons collected there. She had not stated to the police that initially they had taken her husband Sonu to near by doctor namely Dr. Sunil. They had reached G.T.B Hospital at about 11.45 p.m or 12.00 p.m. Doctor had inquired from her about her name and she had told her name. She remained in the hospital till about 2.00 a.m./3.00 a.m. She had became unconscious and she was brought by her brothers.

PW­23 (written as PW­22A) Insp. Omvir Singh (IO of the case) testified that on 5.2.2009 investigation of this case was marked to him and he along with Ct. Deepak and SI Hukum Singh had gone to main Babarpur Road, opposite J State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.32 of pages 56 and K ATM, near public latrin, where SI Jai Bhagwan, SI U.Balashankarm, Ct. Tarun and public witness Kamal were found present. Crime Team officials conducted the inspection of the spot. He confirmed that the photographs Ex. P/A­1 to 6 reflects the same situation which he had seen at the spot. He lifted the exhibits from the spot i.e blood stained concrete after getting it removed with some pointed iron object i.e cheeni from three different places and kept them in small plastic container and sealed the same with seal of OSP and seized it vide seizure memos Ex.PW 3/A to PW 3/D. He had also prepared site plan Ex.PW3/J (without scale) with help of Kamal (eye witness). Ct.Deepak was sent for preservation/custody of the dead body at the mortuary and he returned to the police station and deposited the case property in the malkhana. Thereafter, he along with SI Jai Bhagwan reached mortuary GTB hospital, where family members of deceased were already present there. He completed inquest proceedings during which, he recorded the statement of Kamal and Sunil, Ex.PW­3/F & PW1/B respectively, regarding the identification of dead body. He filled up the inquest form 25.35 (1) B Ex.PW 23/A and also prepared the brief facts of the proceedings Ex.PW23/B. Thereafter, postmortem on the dead body was conducted by the doctor and after postmortem and identification of the dead body, it was handed over to the relatives vide memo Ex.PW12/D for last rites. Accused Danish (correctly identified) was admitted in the hospital and he left behind Ct. Deepak to look after him. Thereafter, he alongwith SI Jai Bhagwan returned to the police Station. Ct. Deepak alongwith accused Danish came to Police Station and handed over to him the sealed envelop, blood in gauze and parcel and sample seal AK stated to be containing clothes of deceased, State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.33 of pages 56 which he seized vide memo Ex.PW 9/A. Thereafter, accused Danish was interrogated by him and his Disclosure Statement was recorded vide Ex.PW12/B and after finding incriminating evidence against the accused Danish, he was arrested and his personal search was conducted vide memo Ex.PW­3/E and PW 3/E­1 respectively. He observed blood marks on the wearing clothes and shoes of accused Danish. The shirt, jeans pant and black coloured shoes of Danish were also seized after converting them into parcel and sealed with seal of OSP, vide seizure memo Ex.PW3/G. He also stated that the colour of pant was metallic black and shirt was striped of orange and black. Further they left the police station in search of other accused involved in this case but they could not be traced out. Accused Danish pointed the spot vide memo Ex.PW 12/C. Accused was got medically examined from the hospital and put up on police lock up. Thereafter, on 06.02.2009 accused was produced before Ld.M.M and his police custody remand was taken. Then with the assistance of accused search for his co­ accused was made but none could be found. Thereafter, on 07.02.2009, accused Danish was remanded to JC. On 7.2.2009 Sunil handed over one complaint Ex.PW1/C in the police station, which was marked to him, wherein Sunil disclosed the name of other persons namely Koyal involved in this case. On 08.2.2009 Kamal and Sunil came to the police station and gave their statements. Statement of Suresh, who came subsequently, was also recorded by him. Further on 09.02.09 he instructed his Beat Staff and deployed secret informer regarding clue of remaining accused persons. On 15.02.09 juvenile Sehwaz (tried separately at Juvenile Justice Board) was apprehended by SI Jai Bhagwan and he recorded the statement of witnesses including himself. On 19.02.09 Juvenile State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.34 of pages 56 Rizwan surrendered before Ld. ACMM and after seeking permission from the Ld. Court he apprehended the said juvenile and he was sent to OBH. On the identification of Kamal, accused Farukh @ Koyal (correctly identified) was arrested from near Paras Nath Metro Mall vide arrest memo and personal search memo Ex.PW3/H & H1 respectively Since accused Farukh was in drunk position, so he could not be interrogated at that time. On next day accused Farukh was interrogated in detail and he made disclosure statement Ex.PW10/B. Accused Farukh pointed out the place of occurrence i.e Babarpur Road in front of J & K Bank ATM, public utility centre vide pointing out memo Ex.PW1/C. Accused Farukh had pointed out the place underneath of flyover GT road Shahdara where he had thrown Gupti (knife), vide pointing out memo Ex.Pw10/E but of no avail. Accused Farukh was produced before Ld. Court and he was taken on police custody by the order of Ld. Court and he again gave a disclosure statement Ex.PW10/C. Thereafter, again accused Farukh took him to the dirty drain near on GT road, Seelam pur i.e. the place where he had thrown the gupti in drain after use, vide pointing out memo Ex.PW10/D. Search for the gupti was made but of no avail. On 27.02.09 accused Farukh was produced before Ld. Court and he was remanded to JC. Further on 26.03.09, on his instruction, Ct. Ravinder collected 9 parcels (i.e. 7 sealed with the seal of OSP and two with the seal of AK) along with sample seal from MHC(M) HC Akhilesh for depositing the same to FSL through RC. He collected the photographs Ex. PW 8/A1 to A6 taken by Crime team. Further on 17.04.09 SI Mukesh inspected the place of occurrence and at that time PW Sunil and SI Jai Bhagwan were also present. SI Mukesh took the measurement of the spot. On 01.05.09 he State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.35 of pages 56 recorded the statement of Ct. Sanjeev, HC Rajesh, and Smt. Shallu. Then on the basis of the material collected during investigation charge sheet was got prepared and filed through SHO. He correctly identified the case property i.e. one shirt, one jeans, and one pair of shoes Ex.P1, P2 & P3 respectively to be of accused Danish which he was wearing at the time of his arrest and all were blood stained.

During cross examination he stated that as per DD No. 45A Ex.PW6/A the place of occurrence is 749/1, Rehman Building West Rohtash Nagar but he did not visit Rehman Building on the day of occurrence but he had visited the spot mentioned in FIR. Sunil Rawat, the complainant, met him on 05.02.2009 at GTB Hospital where he reached at 9.30 a.m for the first time. He recorded the statement of Sunil and eye witness Kamal in the hospital, besides completion of inquest proceedings. He conceded that Sunil did not meet him prior to 9.30 a.m on 05.02.2009. On 05.02.2009 he came to know about the admission of accused Danish in the hospital and he collected his MLC. He conceded that he did not place the MLC of Danish in judicial record alongwith his report U/s 173 Cr.P.C and the name of HC Satyaprakash has been mentioned in the MLC as the person who had removed Danish to the hospital but he did not record his statement during investigation. SI Jai Bhagwan had collected the MLC of Sonu and as per MLC one Ms. Shalu had brought Sonu in GTB Hospital. On 05.02.2009 Shalu did not meet him GTB Hospital. On 05.02.2009 Kamal met him at the spot and thereafter he met him in GTB Hospital and on 08.02.2009 he himself came to PS Shahdara. He did not serve any notice U/s 160 Cr.P.C to Kamal or to Sunil to produce Shalu before him. He recorded the statement of Shalu on 01.05.2009 at her residence and he did not serve any State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.36 of pages 56 notice to her to join investigation even on 01.05.2009. He did not obtain the result on the MLC of accused Danish. He could not tell as to who was on duty on the day of occurrence on the police booth near the place of occurrence. He admitted that the name of accused Farukh @ Koyal and the witnesses namely Suresh and Shalu are not mentioned in Ex.PW23/B which is in his handwriting. He admitted that the position of Kamal, Shalu and Suresh is not shown in site plan Ex.PW3/J nor it is mentioned therein as to on whose instance the Ex.PW3/B was prepared. He himself had not seen the motorcycle no.DL7S BA 1271 make Bajaj Pulsar at the place of incident. He stated that there were blood marks on the clothes of Danish and as per MLC injury was there on the head of accused Danish. Seized clothes of Danish were sent to FSL for comparison and opinion. He stated that probably Sanjeev had taken the special report to Ld. Jurisdictional Magistrate and Higher Officers but no receipt in that regard is placed in the charge sheet. He stated that he had not observed any blood mark on the wearing apparels of Suresh, Shalu, Kamal and Sunil. He could not confirm as to whether the blood sample of accused Danish was taken or not. The mobile number found mentioned in DD No.45A Ex.PW6/A was of complainant Sunil. He conceded that on 07.02.2009, the complainant had given a complaint in writing giving some additional facts in the case but those facts were not verified by the neighbours. He further admitted that complainant had given the complaint Ex.PW1/D abd the facts mentioned in the complaint was not got corroborated by any of the neighbourers.

7. After conclusion of prosecution evidence, statements of accused persons under Section 313 Cr.P.C. were recorded, wherein they controverted the entire evidence as false and State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.37 of pages 56 fabricated. They preferred to lead evidence in their defence.

Accused Danish stated that deceased was his neighbour and claimed that on the day of incident he was beaten up by the family members of the deceased and due to the said beatings, given by danda and iron rods, at about 10.00 p.m in his gali, he had sustained head injury and he was taken to the GTB hospital where he was medically treated but the IO of the present case concealed his MLC to help the prosecution and did not produce the same in the court during trial. He is not concerned at all with the commission of crime in present case. He did not visit the spot on the day of incident.

As per the defence put forwarded by the co­accused Farukh, he has been falsely implicated and even he was not present in the area on the day of occurrence. The complainant and his family members demanded money from him by giving threats that he would be falsely implicated in this case if their demand is not met with. He had not made any disclosure statement. He was lifted from his house and thereafter, he signatures and thumb impressions were obtained on some blank papers.

8. In their defence, as many as four witnesses namely Mohd. Irfan Rai, Varun Agarwal, Dr. Devender Kumar and Sanjeev Kumar appeared in the witness box as DW­1, DW­2, DW­3 & DW­4 respectively and thereafter, DE was closed and final arguments were advanced.

9. DW­1 Mohd. Irfan Rai stated that accused Danish is his neighbour and friend and on 04.02.2009 before 10.00 p.m, accused Danish was present in the gali, outside of his house where complainant Sunil and Kamal started quarelling with accused Danish and Kamal gave danda blow on the head of Danish due to which Danish sustained injuries on his head and State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.38 of pages 56 other parts of the body. As an impact, Danish became unconscious and blood oozed out from his body. Somebody informed PCR. The PCR came and picked up the accused Danish and took him to GTB Hospital. Sunil and Kamal are his adjoining neighbours and on that day when he reached near the shop of deceased Sonu, on hearing the noise, he saw Sunil and Kamal present there and Sonu was lying on the ground floor in injured condition.

During cross examination he stated that he did not intervene in the quarrel to pacify the matter as they were having dandas in their hands. He did not raise any alarm or called any persons from neighbourhood to pacify the matter. Rizwan and Shehwaz are known to him but he does not know Farukh @ Koyal and Murawar. He clearly denied the case of the prosecution against the accused persons. He conceded that he never gave any complaint regarding false implication of accused Danish in the present case and he came to the court at his own as he was keeping watch on the proceeding of present case.

DW­2 Varun Aggarwal testified that on 05.02.2009 at 10.00 a.m Sh. Lokesh Kumar Sharma, the then Ld. ACMM received the copy of FIR Ex.PW4/A and endorsement in this regard on Ex.PW4/A is at mark X and bears the signatures of Sh. Lokesh Kumar Sharma at point Y. During cross examination he conceded that in the year 2009, he was not working in the court of Sh. Lokesh Kumar Sharma, the then Ld. ACMM.

DW­3 Dr. Devender Kumar proved on record the MLC no.B 495/09 of patient/accused Danish as Ex.DW3/A. He stated that the patient was brought by HC Satya Prakas, PCR. The patient was examined by Dr. Umesh under his supervision State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.39 of pages 56 and MLC Ex.DW3/A bears the signature of Dr. Umesh at point A. As per MLC, the patient was semi conscious at the time of examination and was having following injuries:­

(a). laceration 2.5 cm over left parietal region

(b). laceration 2 cm over right parietal region

(c). nasal bleeding present.

The patient was referred to Neuro Surgery and ENT for further examination and management.

During cross examination he conceded that the patient Danish was not examined by him personally and he has no personal knowledge about the abovesaid MLC, as the same was not prepared in his presence.

DW­4 Sh. Sanjeev Kumar (Statistical Assistant) GTB Hospital produced the record pertaining to MLC No.B­495/09 of patient Danish. He stated that treatment papers of patient Danish are not available in their record.

10. I have heard Sh. A. K. Singhal & Sh. Praveen Ld. Counsels for accused Danish and Farukh respectively as well as Ld. Addl. Public Prosecutor for the State and also Ld. Counsel for the complainant and given my prolonged consideration to the matter in light of evidence adduced and the case law relied upon by Ld. Counsels for parties.

11. As per the charge sheet, the case of the prosecution can be summarized as under:­

(i). On 04.02.2009 at about 10.45 p.m when the complainant Sunil alongwith his brother Kamal was present at his paan shop in front of J & K ATM at main Babarpur Road, their brother Sonu came there and asked them to close the shop.

(ii).Meanwhile three boys namely Rizwan, State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.40 of pages 56 Danish (one of the accused persons present in the court) and Shenwaz came there and Danish demanded two cigarettes on credit.

(iii).When Sunil refused to give cigarette on credit and Sonu asked Sunil to close down the shop, Danish and his associates felt insulted and started misbehaving with them.

(iv).Danish gave a slap to Sunil and when Sonu asked Danish as to why he was doing gundagardi, Danish threatened him to face dire consequences.

(v).Thereafter, the accused Danish called his two other associates namely Farukh @ Koyal and Munawar on telephone and they reached there.

(vi).Munawar brought knife with him.

(vii).Danish took knife from Munawar and inflicted three knife blows to Sonu on his stomach and chest region.

(viii).On raising alarm by complainant, the people started rushing to the spot.

(ix).On seeing people coming, the accused persons started escaping and they all except accused Danish (who was apprehended by the people) succeeded in escaping away.

Danish, who was apprehended was given beatings by the public gathered there.

(x).Sonu fell down near the chemist shop.

(xi).The injured was firstly taken to his house by Kamal and Sunil and thereafter, removed to the hospital by Kamal, Sunil and Shallu (wife State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.41 of pages 56 of deceased), where he was declared brought dead.

(xii).PCR van which came to the spot, removed Danish to GTB Hospital and got him admitted there.

(xiii).The police met with the complainant Sunil and recorded his statement in GTB Hospital, wherein he alleged that his brother Sonu was killed by Danish, Rizwan and Sehwaz, to whom he knew earlier. On the said statement, rukka was prepared and instant FIR was registered and investigation was conducted by Insp. Ombir Singh, who reached at the spot i.e. opposite J & K Bank ATM near toilet Babarpur, Shahdara, Delhi. Crime Team arrived at the spot, which inspected the spot and photographs of the spot were taken & I/C Crime Team prepared unscaled Site Plan. Exhibits were lifted from different places at the spot and they were sealed, seized and deposited in the Malkhana.

(xiv).Thereafter, the inquest proceedings were completed and than the postmortem on the dead body was got conducted and than dead body was handed over to its claimants.

(xv).After his discharge from GTB Hospital, accused Danish was arrested and his disclosure statement was recorded and spot of occurrence was got identified from him.

(xvi).On 07.02.2009 complainant moved an State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.42 of pages 56 application before SHO PS Shahdara stating therein the name of other accused Farukh @ Koyal to be involved in the murder of his brother Sonu.

(xvii).On 08.02.2009, the statement of one Suresh (the witness) was recorded U/s 161 Cr.P.C and on 15.02.2009, the accused Shehwaz (juvenile) was apprehended at the instance of Suresh and he was produced before J.J. Board and sent to OBH.

(xviii).On 19.02.2009, the accused Rizwan (a minor) surrendered before the Court of Ld. ACMM concerned and he was produced before J.J. Board and was sent to OBH.

(xix).On 25.02.2009, accused Farukh @ Koyal was apprehended and he disclosed of having thrown "gupti" the weapon of offence in a drain. At his instance, the pointing out memo of said place was prepared.

(xx).During the course of investigation, the complainant filed an another complaint disclosing therein the name of one more accused Munawar to be involved in the instant crime but he could not be apprehended and arrested.

(xxi).The accused Rizwan and Shehwaz being juveniles were charge sheeted separately before Juvenile Justice Board, whereas accused Danish and Farukh (after completion of committal proceeding) were sent up before this court for facing trial.

State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.43 of pages 56 On the other hand, as per the defence brought up by the accused persons, they have been falsely implicated in this case. According to accused Danish, deceased was his neighbvour and on the day of incident he was beaten up by the family members of deceased by danda and iron rods and he had sustained head injuries and he was taken to GTB Hospital, where he was medically treated but IO of the case concealed his MLC to help the prosecution and did not produce the same before the court during trial. He is not concerned at all with the commission of crime, as alleged. Whereas, as per accused Farukh the accused was not even present in the area on the day of occurrence and the complainant and his family members demanded money from him by giving threats that he would be falsely implicated in this case if their demand is not met with. He was lifted from his house and his signatures and thumb impressions were obtained by police on some blank papers.

12. According to the contentions of Ld. Addl. PP for the State, the case of the prosecution launched U/s 302/34 IPC, based on the testimonies of eye witnesses, is crystal clear. By the combined reading of the consistent, natural and trustworthy statements of PW­1 Sunil, PW­3 Kamal (brothers of the deceased), PW­22 Shalu, PW­2 Suresh Kumar (an independent witness) coupled with the medical and scientific evidence together with other evidence of police officials, the case of the prosecution that both the accused persons alongwith their associates had killed Sonu (the deceased). The factum of unnatural death of Sonu (the deceased) is not in dispute at all. Further the testimony of PW­1, corroborated by PW­2, PW­3 & PW­22, is in consonance to the medical and scientific evidence brought on record in the form of MLC and State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.44 of pages 56 Postmortem Report, which confirms that the cause of death was hemorrhagic shock due to antemortem stab injuries to the heart produced by sharp edged weapon and injury number one was sufficient to independently cause death in the ordinary course of nature. FSL Result further corroborates the case of the prosecution. Moreover, the factum of apprehension of accused Danish at the spot and that he was got admitted in GTB Hospital in injured condition (who was given beatings by the public persons, who gathered there after hearing the alarm of the brothers of deceased) coupled with his disclosure statement regarding his involvement in the crime and presence of blood stains on his wearing clothes, further strengthen the story of prosecution that it were the accused persons, who committed the offence alleged. Further the contradictions and short comings, as pointed out by Ld. Defence Counsel, are of minor and negligible nature and they have been failed to cause any dent to the case of prosecution. Besides, the medical and scientific evidence, the other documents like FIR, seizure memos, memos of arrest and personal search of accused persons and also their disclosure statements have been proved by the prosecution witnesses in their respective testimonies. From the aforesaid, the prosecution has been able to form an unbreakable chain of evidence against both the accused persons to draw an inference of guilt totally incompatible to the innocence of accused persons and it can be said that the case of the prosecution is firmly established.

Per contra, according to Ld. Counsels for accused persons, the prosecution has remained unsuccessful in its mission of proving its case against both the accused persons beyond the shadow of reasonable doubt and therefore, they both are entitled for an order of acquittal in their favour. Firstly, State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.45 of pages 56 as per DD No.45A, an information was recorded mentioning therein that a call was received from mobile phone no. 9911212092 belonging to the complainant Sunil to the effect that "TEEN AADMIYON NE GHAR MAIN GHUS KAR MERE BHAI KO CHAKU MAAR DIYA HAI". It is not in dispute that the accused Farukh and Danish were earlier known to the complainant Sunil and if it was so, then why in the said DD No. 45A, the name of accused Farukh and Danish were not mentioned. This creates doubt about the very origin of the crime. Further even in the FIR or in the statement of Sunil recorded on 05.02.2009, the name Farukh is not mentioned, rather, his name came in picture subsequently i.e. after three days of the occurrence for the first time when a hand written complaint was given by the complainant in the Police Station but even in the said complaint also the role of inflicting knife injury was not attributed to Farukh, rather, it was alleged that he had caught hold the deceased from his behind and he had escaped from the spot with the knife. The version of the complainant was further improved subsequently on filing of a written complaint dated 04.03.2009 addressed to Commission of Police, Delhi wherein the role of inflicting knife blow was attributed to the accused Farukh @ Koyal. It is further pointed out by Ld. Defence Counsels that as per the version recorded in DD No.45A, the place of occurrence was inside the house of deceased, whereas according to the case of prosecution the incident had taken place out side the pan shop of the complainant. Further the statements of the witnesses of the alleged occurrence recorded before the court are totally in conflict or in variation to the narration, as recorded/mentioned in the FIR and surprisingly, none of the three eye witnesses of the occurrence in their respective statements indicates about State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.46 of pages 56 the presence of other two witnesses. Thus in these circumstances, the said witnesses are not trustworthy specially in the situation when they are interested witnesses being the close relatives of the deceased. PW­1 Sunil (the author of DD No.45A) did not disclose the presence of PW­2 Suresh at the spot in his statement. Further according to the case of prosecution deceased was got admitted in the hospital by his wife Shalu, whereas, according to PW­1 Kamal had got admitted the deceased in the GTB Hospital. Moreover, as per DD No.45A, place of occurrence is inside the house of deceased, whereas as per the case of prosecution and the site plan Ex.PW3/J, the incident took place at point A i.e. outside the pan shop of Sunil. Admittedly, accused Danish had sustained injuries and he was got admitted in GTB Hospital by the PCR Officials and got medically examined vide MLC and his MLC was duly proved by the witness i.e. DW­3 Dr. Devender Kumar but the said MLC was withheld by the IO and not even placed the same in the charge sheet, for the reasons best known to the IO and no explanation has been put forth by the prosecution in that regard. The injury sustained by accused Danish is no where explained by the prosecution. Even the statement of the PCR official, who had removed Danish to the hospital was not recorded. The ocular version and medical evidence are contradictory to each other. The presence of prosecution witnesses namely PW­1, PW­2 & PW­3 is doubtful as the same is not reflected in the Site Plan Ex.PW3/J. Even the position of injured and the house of accused are also not shown/reflected in the Site Plan. There are improvements and variations of serious nature in the testimonies of star witnesses and they render the entire story of prosecution under a shadow of doubt. The delay in recording the FIR and inordinate delay State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.47 of pages 56 in recorded the statement of PW Shalu and non recording of the statement of Monu remained unexplained. In the light of aforesaid specially in the circumstances where the testimonies of eye witnesses are conflicting and contradictory, while relying upon the rule of caution as propounded in the judgments reported as 2011 Part I JCC 278 and 196 JCC Delhi 638, Ld. Counsel for accused persons are seeking benefit of doubt.

13. After giving my thoughtful consideration to the rival submissions made on behalf of parties and perusing the entire material placed on record, I have come to the considered opinion that there is a substance in the claim of Ld. Counsels for accused persons that the prosecution has remained unsuccessful in its mission of proving its case against both the accused persons beyond the shadow of reasonable doubt and therefore, both the accused persons are entitled for an order of acquittal in their favour.

In the instant case the origin of crime is itself doubtful as according to the DD Entry No.45A registered at PS Shahdara regarding the incident in question is that "teen aadmiyon ne mere bhai ko ghar mein ghus kar chaaku maar diya hai". It means the incident had taken place inside the house but according to the story of prosecution the incident took place outside the pan shop of Sunil, as depicted at point A in the Site Plan Ex.PW3/J. Admittedly, PCR calls talks about three persons, but the accused persons involved in the instant is four in numbers it means the fourth accused was brought in picture subsequently and chances of the false implication of said fourth accused can not be ruled out specially in the circumstances when DD entry recorded in the Police Station regarding the incident talks about the commission of crime by three persons. Even in his testimony, it is conceded by PW­2 State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.48 of pages 56 that mobile no.9911212092 was disclosed to be of PW­1 in DD No.45A and if it was so and the said mobile phone was of the complainant and he was the informer of the occurrence and in the circumstances where accused Danish and Farukh @ Koyal were earlier known to him, then why he did not disclose the name of accused Farukh @ Koyal and even Danish at the time of getting said DD No.45A recorded. Moreover, the presence of star witnesses of prosecution namely PW­1 Sunil, PW­2 Suresh Kumar & PW­3 Kamal at the spot at the relevant time are doubtful as except the presence of PW­1 Sunil, the presence of other two witnesses have not been reflected in the Site Plan Ex.PW3/J, whereas they have been shown as eye witnesses of the occurrence. Interestingly, none of these three witnesses indicate about the presence of other two at the spot. Even the position of injured and the house of accused are also not shown/reflected in the Site Plan. Site Plan prepared by the IO in this case also not free from doubt as according to IO he had prepared Site Plan at the instance of PW­1, whereas according to the version of PW­1 he had never visited the spot after the occurrence. Further as per the case of prosecution accused Danish came at the spot on his motorcycle and it was the accused Danish only who was apprehended at the spot then what happened to the motorcycle of Danish, it is not clarified.

Admittedly, the accused Danish had sustained injuries and he was got admitted in GTB Hospital by the PCR Officials and got medically examined vide MLC and his MLC was duly proved by the witness i.e. DW­3 Dr. Devender Kumar but the said MLC was withheld by the IO and not even placed the same in the charge sheet, for the reasons best known to the IO and no explanation has been put forth by the prosecution in State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.49 of pages 56 that regard. The injury sustained by accused Danish is no where explained by the prosecution. Even the statement of the PCR official, who had removed Danish to the hospital was also not recorded.

In 2008 (1) JCC 770 titled as Babu Ram and Ors. Vs. State of Punjab, it has been observed by Hon'ble Apex Court that:­ "it is well settled law that in a murder case, the non explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is very important circumstances from which the court can draw the following inferences:­

1. that the prosecution has suppressed the genesis and origin of the occurrence and has thus not presented the true version;

2. that the witnesses, who have denied the presence of the injuries on the persons of the accused are lying on a most material point and therefore, their evidence is unreliable;

3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.50 of pages 56 Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses where the defence gives a version which competes in probability with that of the prosecution one."

14. In the instant case also position is not different, as not only the injuries sustained by the accused Danish has remained unexplained (by giving any satisfactory and plausible reason) but also the very act on the part of Investigating Officer i.e. of withholding the MLC of accused Danish and non examination of the police official, who had removed him to the hospital causes dent to the root of the case of prosecution particularly in the circumstances where the star witnesses are close relatives of the deceased.

Further in the instant case the ocular version and medical evidence are contradictory to each other. As, as per complaint dated 14.03.2009 Ex.PW­1/D, two blows of knife i.e. one at the stomach and other on chest region were given, whereas as per Postmortem Report Ex.PW13/A as many as three incised wound were found on the body of deceased.

Further there is an unexplained delay in recording the FIR and also in transmitting the copy of FIR to the Ld. Area Magistrate, which cause further dent to the case of prosecution.

In the case Mehraj Singh Vs. State of UP (1994) 5SCC 188 the Hon'ble Supreme Court has held that:­ State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.51 of pages 56 "FIR in a criminal case and particularly in a murder case is vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circum­ stances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellish­ ments, which is creature of an after thought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story".

Further the statement of Shalu (Wife of deceased) was recorded after three months of the occurrence i.e. on 01.05.2009 and no explanation in this regard has been preferred by the prosecution.

In 2006 (1) JCC 151 titled as Sohan Singh Vs. State of Uttranchal, it has been held by Hon'ble Supreme Court that:­ "It is well settled that delay in examination of prosecution witnesses by the police during the State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.52 of pages 56 course of investigation, ipso facto may not be a ground to create doubt regarding veracity of the prosecu­ tion case. But in the facts and circumstances of the present case, veracity of the prosecution case becomes highly doubtful as in view of the evidence of prosecution witnesses namely, Pws1, 2 and 6 the possibility of dacoity in the house of Ram Singh and receiving injuries by the members of the prosecution party during the course of dacoity can not be ruled out more so when there is no evidence whatsoever to show that any of the accused persons much less the appellant, assaulted the three deceased persons........".

In the case in hand PW­1, PW­2 & PW­3 are the star witnesses and they are relatives and they require greater caution and scrutiny and there are material improvements and variations, which are of serious natures, and they render the entire case of the prosecution under the cloud of doubt. Moreover, admittedly, there was a police booth at the distance of five paces from the spot of occurrence but no officials from said booth was either called or informed. The conduct of PW­3 is highly improbable as he neither took the injured to the hospital nor he informed the police about the incident rather he went to his house.

Further according to PW­1 Sunil, he alongwith Kamal took State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.53 of pages 56 the injured to the hospital and admittedly, the injured was bleeding at that time and in the process of lifting the injured and taking him to the hospital, the clothes of Sunil and Kamal got blood soaked but surprisingly, the said blood stained clothes were not taken into possession by the police. Further more, the weapon of offence was neither recovered nor produced before the Court.

15. This court is conscious of the fact that a conviction can be based on the eye witness testimony of a single individual, however, the consistent standard which is to be apply is the test of credibility. Therefore the nature of evidence which can result in a conviction is not quantitative but qualitative. If one witness can convince the court that (she or he) had witnessed the commission of crime by the accused, that can result in conviction. However, if the evidence is unconvincing and the court doest not trust the testimony, the only result is an acquittal. In the case is hand there are three eye witnesses of the occurrence/incident but their testimonies are not fully trustworthy or convincing for holding the accused persons guilty.

It has been held by Hon'ble Supreme Court in 2002 (3) JCC 1882 titled as Ashish Batham Vs. State of M.P. that:­ "Realities or truth apart, the fundamental and basic presump­ tion in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or un­ State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.54 of pages 56 impeachable evidence, the ques­ tion of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed.

Mere suspicion, however, strong or probable it may be is no effective substantiate for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true"

and this basic and golden rule only helps to maintain the vital distinction between "conjectures"

and "sure conclusions" to be arrived at on the touchstone of a dis­passionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record."

16. Having regard to the above discussion and taking into State Vs. Farukh @ Koyal & Anr. (SC No.86/2009) Page No.55 of pages 56 consideration the overall conspectus of facts as emerging from the evidence on record, this court is of the opinion that the prosecution has been failed to prove its case against the accused persons beyond the shadow of reasonable doubt. As such both the accused persons are acquitted of the charges levelled against them. Accused Farukh @ Koyal and Danish be set at liberty, if not required to be detained in any other case. They are further directed that after their release from jail, they will furnish fresh respective bail bond in the sum of Rs. 10,000/­ with one surety of the like amount in terms of the order of the Hon'ble High Court.

17. File be consigned to Record Room after completion of necessary formalities with the condition that the same shall be recalled from the Record Room as and when the co­accused Rizwan (not arrested yet), is arrested for conducting trial qua the said accused.

(Announced in Open court             (RAKESH KUMAR) 
on 21 st  December, 2013)         Addl. Sessions Judge/North East
                                                      Karkardooma Courts, Delhi 




State Vs. Farukh @ Koyal & Anr. (SC No.86/2009)                         Page No.56 of pages 56