Delhi District Court
State vs Naeem & Another on 13 April, 2018
STATE VS NAEEM & ANOTHER
IN THE COURT OF MR. PAWAN KUMAR MATTO
SPECIAL JUDGE (NDPS), ADDITIONAL SESSIONS JUDGE
NORTH WEST DISTRICT: ROHINI COURTS: DELHI
New SC No. 52388/2016
FIR No. 724/14
P.S. Sultan Puri
U/S 341/34, 307/34 of IPC
and U/S 25 & 27 of Arms Act
State
Vs.
1. Naeem
S/o Sh. Mohd. Faruk
R/o D-13 Aman Vihar, Delhi
2. Salman Khan @ Sonu
S/o Sh. Munna Khan
R/o B-142, Balbir Nagar,
Kirari Suleman Nagar, Delhi Accused.
Date of institution of the case : 29.10.2014
Date when final arguments concluded : 13.04.2018
Date of pronouncement of judgment : 13.04.2018
JUDGMENT
1. The facts of the case are that present FIR No. 724/14 was registered U/S 307/34 of IPC, on the basis of complaint of Mahesh (injured) Ex. PW- 2/A, wherein, he has stated that he resides at the address as mentioned in Ex. PW-2/A and at the time of occurrence, he was working in the office of money transfer and he was also doing course of B. A through correspondence. He has further stated that 3-4 days before this incident, a quarrel had taken place between the accused Sonu @ Salman with the residents of his Block and said matter was settled. On 06.07.2014, at about 9:30 pm, he was going to the house of his friend in H Block, Sultan Puri FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 1/63 STATE VS NAEEM & ANOTHER and when, he arrived at Budh Bazar road, accused Sonu @ Salman S/o Munna Khan, R/o 142, Aman Viihar alongwith other companion met him and restrained him and started quarreling with him and said "US DIN TO TU BACH GAYA THA PAR TUJE AAJ NAHI CHHORENGE" and accused Sonu @ Salman took out the knife and attacked on the chest of this injured Mahesh and when the complainant Mahesh tried to flee away, then, the accused Naeem had caught to Mahesh and accused Sonu attacked with his knife and when this complainant tried to save from both the accused, then, he had suffered injuries on his hands and shoulder and he fell down on the earth in blood stained condition and both the accused gave kick blows and belt blows said "AAJ ISKA KAM TAMAM KAR DETE HAIN" and public persons gathered. Both the accused fled away from the spot and public persons had put the injured Mahesh in a rickshaw and took him to Sanjay Gandhi Hospital. Public persons asked about the phone number and then, he had given the phone number of his brother. His brother Ashok arrived at Sanjay Gandhi Hospital and admitted him therein and thereafter, his family members took him to Jaipur Golden Hospital and complaint was lodged against accused Sonu @ Salman and Naeem that he has alleged injuries with knife have been caused to the complainant with the intention to kill him. This injured was medically examined in Sanjay Gandhi Hospital vide MLC Ex. PW-6/A thereafter, he was referred to Jaipur Golden Hospital injured Mahesh was discharged from Jaipur Golden Hospital on dated 10.07.2014.
2. The investigation was carried out by the IO. Accused Naeem were arrested on dated 07.07.2014 and he was released on bail on dated 12.11.2014. Whereas, accused Salman @ Sonu was arrested on dated 18.09.2014 and he was released on bail on dated 13.11.2014 and exhibits were collected, sealed and sent to the FSL. Disclosure statements of both FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 2/63 STATE VS NAEEM & ANOTHER the accused were also recorded. The knife used in the commission of the offence was also recovered from the house of accused Salman in furtherance of his disclosure statement of Salman Ex.PW14/B and on completion of the investigation, charge sheet was filed against both the accused u/s 307/341/34 of IPC and copies of charge sheets were supplied to both the accused and case was committed to the Sessions and it was assigned to this court. On finding prima facie case, Ld. Predecessor of this court was pleased to frame charges u/s 307/34 IPC and 341/34 IPC against both the accused and additional charge u/s 25 & 27 Arms Act was also framed against accused Salman @ Sonu. Both the accused, pleaded not guilty and claimed trial and both the accused were put on the trial.
3. In order to prove its case, the prosecution has examined 19 witnesses.
4. ASI Ram Kumar has been examined as PW 1, who has deposed that on dated 06.07.2014 he was posted Incharge Mobile Crime Team, Outer District at Avantika, Sector 01 Rohini, Delhi and on receiving of the information from the control room he alongwith, his staff had arrived at the spot at 11:40 p.m. and remained there till 12:10 a.m. and ASI Chhajju Ram , HC Pawan Singh and with SI Mahender Pratap were already there and they noticed that blood was lying on the road and on his instructions, Ct. Ravinder took photographs of the spot and this witness had prepared the detail report Ex.PW1/A and handed over the same to the IO. This witness was cross examined by the ld. Counsels for the accused and during his cross examination, he could not tell the exact number of persons present at the spot. He could not tell as to how many photographs were taken by Ct. Ravinder and deposed that IO did not ask any public person present at the spot to join the investigation and he also could not tell whether the FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 3/63 STATE VS NAEEM & ANOTHER complainant was present at the spot or not. He has denied that he did not go to the spot with the photographer or that he had prepared the report at the instance of IO or that he has deposed falsely.
5. Whereas, Mahesh (complainant) has been examined as PW-2 and cross examined by the Ld. Counsels for the accused.
6 Whereas, Ct. Rajuddin has been examined as PW-3 who has deposed that on dated 07.07.2017 on the direction of Investigating Officer of present case, he carried one application form and one authority letter to the PCR, PHQ in order to collect two PCR forms and he had handed over the said documents to the concerned officials and collected two PCR forms Mark P- 3 - X1 & P-3-X2. The opportunity was given to ld. Counsels for both the accused to cross examine this witness, but the ld. Counsels for the accused did not cross examine this witness, so, the opportunity to cross examination this witness was done Nil.
7. Whereas, HC Vinod Kumar has been examined as PW-4, who has deposed that on dated 07.07.2014, he was posted and working as MHC(M) in the PS Sultan Puri. On that day, SI Mahender Pratap deposited three sealed parcels, which were sealed with the seal of MP in the Malkhana and he made entry no. 7124 in his own handwriting in register no. 19. He had brought the original register no. 19 and proved Copy of entry no. 7124 as Ex. PW 4/A (OSR) and further deposed that on dated 18.09.2014 SI Mahender Pratap deposited one sealed pullanda sealed with the same seal of MP vide entry no. 7289 and proved the Copy of entry no. 7289 as Ex. PW 4/B (OSR). He has also deposed that on dated 25.09.2014 the exhibits of the case in duly sealed condition were sent to the FSL, Rohini from the Malkhana through Ct. Surender Singh vide RC No. 286/21/14 and proved FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 4/63 STATE VS NAEEM & ANOTHER the Photocopy of the RC as PW 4/C (OSR) and Endorsement was made in register no. 19 regarding this fact at point Ex. PW 4/C1. After depositing the articles in the lab, Ct. Surender deposited an acknowledgement receipt as Ex. PW 4/C2. The FSL result was received on 29.01.2015. So long as the case property remained in the malkhana, nobody tampered with it. The opportunity to cross examine this witness was given to the Ld. Counsels for both the accused. But, this witness was not cross examined by the Ld. Counsels for both the accused, so, the opportunity to cross examine this witness was done nil.
8. Whereas, W. Constable Renu has been examined as PW-5, who has deposed that on dated 06.07.2014, she was posted at CPCR, PHQ and her duty hours were from 08:00 PM to 08:00 AM next morning i.e. 07.07.2014 and at 22:16 information about the present incident was received from mobile phone no. 9913863373 to the effect that the brother of the caller has been given knife blows by the accused. This witness has filled the information in PCR form Ex.PW5/A and passed it to the console operator for onward transmission to the concerned district. The opportunity to cross examine this witness was given to the Ld. Counsels for both the accused. But, this witness was not cross examined by the Ld. Counsels for both the accused, so, the opportunity to cross examine this witness was done nil.
9. Dr. Shalinder Koul has been examined as PW-6. This witness was also cross examined by the Ld. Counsels for the accused.
10. Ct. Naveen has been examined as PW-7, who has deposed that on 06.07.2014, he was posted at PS Sultan Puri as DD writer and his duty hours were from 04 PM to 12 midnight and at 10:16 PM, information regarding present incident was received from control room and he recorded FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 5/63 STATE VS NAEEM & ANOTHER DD No. 68/B, telephonically HC Padam was informed about the information and was instructed to carry out the investigation and he has brought original DD register containing DD No. 68/B and copy thereof is Ex.PW7/A and attested copy thereof is Ex.PW7/B1. He has further deposed that at 10:30 PM, on the same date, again information of the present incident was received from control room. He recorded DD No. 70/B. Telephonically ASI Chhajju Ram was informed about the information and was instructed to carry out the investigation and he has proved the original DD register containing DD No. 70/B and copy thereof is Ex.PW7/C and attested copy of DD No. 70/B is Ex.PW7/C1. The opportunity to cross examine this witness was given to the learned counsels for the accused, but they did not cross examine this prosecution witness, so the opportunities of the accused to cross examine this witness were done nil.
11. Dr. Shailesh Jain, has been examined as PW-8, who has deposed that on dated 07.07.2014, he was working in Jaipur Golden Hospital, Rohini, Sector-03 and on that day, one patient, namely, Mahesh Kumar, 22 years old male, was admitted in the hospital. He has further deposed that injured was operated by him on that day. The discharge summey of Mahesh is Ex.PW8/A and the patient had multiple incised wounds all over his body and out of them, two wounds were significant, one was on the left side of the chest and second was on the back of left shoulder. This witness was cross examined by the Ld. Counsels for the accused and during his cross examination, he has admitted that in Ex.PW8/A size of wounds is not mentioned, when the patient was examined by him, the patient already had stitches on wounds and his treatment was secondary treatment. Thus, from the testimony of this witness i.e. PW-8, it is proved on record that this injured was operated upon by PW8 for the incised wounds caused to the FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 6/63 STATE VS NAEEM & ANOTHER injured with the knife by accused Salman, even if, this witness did not mention the size of the wounds in the discharge summery, it is inconsequential. The testimony of this witness cannot be ignored for non mentioning the size of wounds in the discharge summery Ex.PW8/A. As, the testimony of this witness is found to be trustworthy.
12. Whereas, The brother of the injured Sh. Ashok Kumar has been examined as PW-9 and also cross examined by the Ld. Counsels for the accused.
13. Whereas, Sh. Dinesh, who is alleged eye witness of the occurrence was examined as PW-10, who was also cross examined by the Ld. Counsels for the accused.
14. Dr. Rajesh, CMO, Sanjay Gandhi Hospital was examined as PW-11, who was cross examined by the Ld. Counsels for the accused.
15. HC Chotan Lal, has been examined as PW-12 who has deposed that on the intervening night of 06/07.07.2014, he was posted in PS Sultanpuri as Head Constable and was working as duty officer from 12 midnight to 8 AM. He has further deposed that at about 01:30 AM, he received the rukka from Ct. Yogesh, which was sent by ASI Chhajju Ram and on the basis of the said rukka, he recorded the FIR No. 724/14 on computer and copy of the same is Ex.PW12/A and after registration of FIR, he made endorsement on the rukka in his own handwriting and the same is Ex.PW12/B. After registration of FIR, the original rukka and copy of FIR were handed over to Ct. Yogesh, which was to be handed over to SI Mahender Pratap for further investigation. He further deposed that the certificate under Section 65B of Evidence Act was relied by him. This witness was cross examined by the FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 7/63 STATE VS NAEEM & ANOTHER Ld. Counsel for the accused and during his cross-examination, he has deposed that it took 10 minutes in recording of FIR.
16. ASI Chhajju Ram has been examined as PW-13, who has deposed that on 06.07.2014, he was posted at PS Sultanpuri on emergency duty from 08:00 PM to 08:00 AM. At about 10:30 PM, information of the present incident was received vide DD No. 70B Ex.PW7/C, which was assigned to him for investigation. He along with Ct. Yogesh reached at place of incident i.e. Budh Bazar Chowk, near Hari Hospital infront of Telecom Centre. HC Padam was already present there. He has further deposed that the injured was not present at the spot and was removed to the hospital. Thereafter, he along with Ct. Yogesh reached in Sanjay Gandhi Hospital after leaving HC Padam at the spot with the direction to call the crime team at the spot. In the hospital, he found that injured was under treatment vide MLC No. 12498 and the relatives of the injured were taking injured to Jaipur Golden Hospital from there. He did not meet with any eye witness of the present incident. Thereafter, he along with Ct. Yogesh reached Jaipur Golden Hospital and obtained the endorsement of the doctor about the fitness of injured to make statement on the MLC, which was collected by him from Sanjay Gandhi Hospital. He recorded the statement of the injured Mahesh Ex.PW2/A. He prepared the rukka and made endorsement Ex.PW13/A beneath the statement of the complainant and handed over the same to Ct. Yogesh for being taken to police for the registration of FIR with the request that since, case was under Section 307 of IPC, so, some other IO may be deputed. He returned to the spot and found the members of the crime team and SI Mahender Pratap along with Ct. Yogesh also arrived at the spot. He handed over all the relevant documents to him. SI Mahender seized blood stained concrete and earth control from the spot at his instance and after keeping them in separate containers Mark S-1 and S-2 sealed the FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 8/63 STATE VS NAEEM & ANOTHER same with the seal of MP and were taken into possession vide memo Ex.PW13/B. The members of the crime team inspected the spot and gave their report to the IO. He has further deposed that the IO prepared the site plan at the instance of this witnesses and they returned to the police station and deposited the exhibits in malkhana. He further deposed that on 07.07.2014 at about 04:00 PM, this witness along with HC Padam, Ct. Yogesh, SI Mahender Pratap reached at friends enclave and inquired about the witness Dinesh and made efforts to trace him and Dinesh was found at his house and he also joined the investigation with them and they left in search of accused Mohd. Naeem. They reached at the house of accused Mohd. Naeem, who was present outside his house and Dinesh identified him. Mohd. Naeem was apprehended and arrested vide memo of arrest Ex.PW10/B and his personal search was also conducted vide memo Ex.PW10/A and recorded his disclosure statement Ex.PW13/C. Accused Mohd. Naeem produced his wearing belt and the same was kept in a plastic box and sealed with the seal of MP and was taken into possession vide memo Ex.PW10/D1 and thereafter, they returned to the police station and accused Mohd. Naeem was sent to Sanjay Gandhi Hospital for his medical and case property was deposited in Malkhana and statement of the accused Dinesh was recorded by the IO and the statement of this witness was also recorded by the IO. He has proved the belt Ex. P2, which is alleged to have been used in beating to the injured. He has also proved the blood stained earth control Ex. P3 and blood stained concrete Ex. P4. This witness was also cross examined by the ld. counsel for the accused and during his cross examination, this witness has admitted that the name of the caller in DD No. 70B is not mentioned, mobile phone number of caller is mentioned therein. He has also admitted that the names of the assailants and injured were also not told by the PCR caller. He has denied that DD No. 70B is fabricated or manipulated at the instance of the complainant or that the FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 9/63 STATE VS NAEEM & ANOTHER complainant had quarreled with some other persons or that he suffered injuries in the said incident or that he has falsely implicated to both the accused in the present case. This witness has also deposed that the street lights were there at the place of incident and all the shops were closed when he arrived at the spot and HC Padam also met me at the spot. He has also deposed that he was not aware, whether the crime team had taken the photographs of the spot or not and he arrived in the SGM Hospital at 11:00p.m. -11:15 p.m and at that time, the family members of the injured were shifting the injured in the Jaipur Golden Hospital and also admitted that none of the family member of injured had told him the name of any of the eye witness. He has also admitted it to the correct that the names of the accused were not disclosed by the injured or his relatives in the SGM Hospital and no eye witness met him in the Jaipur Golden Hospital except the injured. He has denied that the site plan was prepared by him while sitting in the police station or that no exhibits were lifted from the spot. He has also admitted that no member of family of the injured was with them when they went to the house of public witness Dinesh. He has denied that they never went to the house of Dinesh or that Dinesh has never joined the proceedings of arrest of accused Naeem or that Dinesh is a planted witness or that Dinesh is the friend of Mahesh or that no disclosure statement was made by Naeem or that no belt was recovered from accused Naeem or that the belt is planted on the accused Naeem to create false evidence.
17. SI Mahender Pratap, has been examined as PW-14, who has deposed that on 07.07.2014, he was posted at PS Sultanpuri and on that night at about 01:45 AM, duty officer sent him through Ct. Yogesh copy of FIR and original rukka of the present case. He along with Ct. Yogesh reached at the spot i.e. in front of D-16, Aman Vihar, Budh Bazar Road. At the spot, ASI Chhajju Ram, HC Padam, ASI Ram Kumar, I/C Crime Team and Ct.
FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 10/63STATE VS NAEEM & ANOTHER Ravinder photographer met him and ASI Chhajju Ram handed over him crime team report of inspection of the spot Ex.PW1/A and ASI Ram Kumar and Ct. Ravinder left the spot. The site plan Ex.PW14/A was prepared by this witness at the instance of ASI Chhajju Ram and this witness lifted the exhibits from the spot. This witness lifted blood stained concrete and earth control from the spot and kept them in separate plastic containers Mark S-1 & S-2 and were sealed with the seal of MP and were taken into possession vide memo Ex.PW13/B and recorded the statements of ASI Chhajju Ram, HC Padam and Ct. Yogesh and handed over the seal after use to HC Padam. Thereafter, they went to B-142, Balbir Nagar for the search of accused Salman @ Sonu, however, the said accused was not found in this house and they returned to the police station and deposited the case property in the malkhana. Thereafter, this witness went to Jaipur Golden Hospital and met injured Mahesh, who told him that Dinesh was the eye witness of the incident and this witness returned to the police station. He has further deposed that on 07.07.2014 at about 04:00 PM, he along with ASI Chhajju Ram, HC Padam and Ct. Yogesh reached at West Friends Enclave, Sultanpuri at the house of public witness Dinesh and made enjuries from Dinesh, who joined the investigation with them. Thereafter, they reached at the house of accused Naeem at D-13, Aman Vihar and Naeem was found out side of his house and he was arrested vide memo of arrest Ex.PW10/B and he was personally searched vide memo Ex.PW10/A, disclosure statement of accused Naeem Ex.PW13/C was recorded by this witness and Naeem had produced his wearing belt, which was taken into possession vide memo Ex.PW10/D1 and this accused led him to place of occurrence vide pointing out memo is Ex.PW14/A. He has further deposed that thereafter, they went to the police station and accused Naeem was sent to Sanjay Gandhi Hospital for his medical examination and on dated 09.07.2014, this witness had recorded the statements of members of Crime FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 11/63 STATE VS NAEEM & ANOTHER Team on dated 10.07.2014, he recorded the statement of Ashok, Mahesh and collected PCR form and collected the result of MLC and got NBW of Salman @ Sonu. He has further deposed that on 18.09.2014 he went to the house of Mahesh alongwith Ct. Pradeep and told him that they had information about the presence of accused Salman at his residence and Mahesh /injured joined the investigation with them and at 7:50 a.m. he arrived in the house of accused Salman @ Sonu at Balbir Nagar, Kirari, Delhi and accused Salman @ Sonu was apprehended on the identification of Mahesh. He was arrested vide memo of arrest Ex. PW 2/B and he was personally search vide personal search memo Ex. PW 2/C and accused Salman made disclosure statement Ex. PW 14/B and accused Salman led them to his room at first floor of his house and pointed out the place under wooden Thakhat lying in his room and took out one knife stained with the blood from there and produced the same before this witness and this witness had prepared it's sketch Ex. PW 2/D. Knife was wrapped in a paper and then sealed in the PULANDA of cloth with the seal of MP and was taken into possession vide Ex. PW 2/E and this witness had recorded the statement of Mahesh/injured and thereafter, accused Salman led the police party to the place of occurrence and pointing out memo Ex. PW 13/C was prepared. He has further deposed that on 25.09.2014 exhibits of the present case were got deposited at FSL through Ct. Surender and after completion of the investigation chargesheet was filed. This witness has proved the knife Ex. P1 , belt Ex. P2 , earth control Ex. P3 and blood stained concrete Ex. P4. This witness was cross examined by the ld. Counsel for the accused and during his cross examination he has denied that he did not lift any exhibit from the spot or that the same have been planted and he made inquiry from the alleged eye witness Dinesh as to why did he not meet the police immediately on the night of the occurrence and Dinesh told that since the brother of the injured arrived in the hospital. So, he left from FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 12/63 STATE VS NAEEM & ANOTHER there. He has admitted that this fact is not mentioned in the case diary dated 07.07.2014 . He has denied that Dinesh is a planted witness, as he is friend of Mahesh. He has denied that complainant had quarrel with some other person or that he has suffered injuries in that incident or the accused have been falsely implicated in the present case or that he has not investigated the matter in the fair manner or that the knife was planted on Salman.
18. Whereas, Ms Manisha Upadhyay, Sr. Scientific Officer has been examined as PW-15, who has deposed that on 25.09.2014 one sealed plastic container with the same seal of MP and one sealed cloth parcel with the seal were received for examination and plastic container was found to be containing concrete and cemented material which was described as blood stained concrete and cloth parcel was containing one knife and on examination both the exhibits were found containing human blood or however the blood grouping could not be ascertained. She has proved her reports Ex. PW 15/A and Ex. PW 15/B. The opportunity of the cross examination was given to ld. Counsels for accused. But, both the ld. counsels for the accused did not cross examine this witness. So the opportunity of the both the accused to cross examine this witness was done Nil. Thus , from the testimony of this witness and her report Ex. PW 15/A, it is proved on the record that the human blood was detected on the earth control, as well as, on the knife Ex. P1, which was recovered from the house of Salman @ Sonu.
19. Whereas, Constable Ravinder has been examined as PW-16, who has deposed that on 07.07.2014, he was posted as photographer in the mobile crime team of outer district. On that day in the midnight at 12.30 am, on receiving of information about the incident of this case, he alongwith incharge crime team namely ASI Ram Kumar reached at the spot i.e. D-16, FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 13/63 STATE VS NAEEM & ANOTHER Sai Om Communication, Amar Vihar, Labour Chowk, Budh Bazar Road, Delhi. At the crime scene blood was lying. On the instructions of the incharge crime team, this witness took 10 photographs of the crime scene. However, when the negatives of the photographs were submitted for the development of positives, all the negatives were washed out and therefore no positive of the photographs could be developed. ASI Ram Kumar prepared the crime scene report and submitted it to ASI Chhajju Ram. The opportunity to cross examine this witness was given to the learned counsels for the accused, but they did not cross examine this prosecution witness, so the opportunities of the accused to cross examine this witness were done nil. Thus, from the testimony of this witness, it is clear that the negatives & positives of the photographs could not be brought on the record, as they were destroyed. But, in view of non production of photographs, the case of the prosecution does not become weak or doubtful, as the testimony of complainant is found to be trustworthy & reliable.
20. Whereas, Constable Yogesh has been examined as PW-17, who has deposed that on 06.07.2014, he was posted in police station Sultanpuri and was on duty and on receipt of DD No. 70B by ASI Chhajju Ram, this witness along with him went to the spot i.e. Sai Om Communication, D-16, Aman Vihar, Labour Chowk, Budh Bazar Road, Delhi. When they reached at the spot HC Padam alongwith other police staff was already present there. There in front of closed shop, lot of blood was lying, it was learnt that injured had already been removed to Sanjay Gandhi Memorial Hospital. ASI Chhajju Ram requested the duty officer of police station to send the crime team to come to the spot. HC Padam Singh was left at the spot to guard the spot. This witness has further deposed that he alongwith ASI Chhajju Ram went to the hospital. From Sanjay Gandhi Hospital MLC of injured Mahesh was collected and it was learnt that Mahesh has been taken FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 14/63 STATE VS NAEEM & ANOTHER to Jaipur Golden Hospital and then they went to Jaipur Golden Hospital. Mahesh was found admitted in the Jaipur Golden Hospital. Mahesh was declared fit for making statement by the doctor. Statement of Mahesh was recorded by ASI and Tehrir was prepared. Tehrir was given to this witness for taking it to the police station for registration of FIR. This witness has further deposed that he left Jaipur Golden Hospital with Tehrir at 1.20 am on dated 07.07.2014. He carried Tehrir to police station Sultanpuri and gave it to the duty officer. The Duty officer got the FIR registered and after registration of FIR, a copy of FIR and original Rukka were handed over to this witness by the duty officer and then, he took those documents to the spot and handed over those documents to ASI Chhajju Ram at the spot. SI Mahender Pratap was also present at the spot, when, he reached at the spot. ASI Chhajju Ram handed over the documents to SI Mahender Pratap and thereafter SI Mahender Pratap prepared site plan at the instance of ASI Chhajju Ram. Crime team had also arrived at the spot and report of crime team incharge was obtained. From the spot blood stained concrete material and earth control were obtained and were kept in separate containers. Those containers were sealed with the seal of MP and were taken into possession vide seizure memo Ex. PW13/B. Thereafter SI Mahender Pratap recorded the statement of witnesses at the spot. He has further deposed that thereafter he joined investigation of this case again on 07.07.2014 at about 5.30 pm he alongwith SI Mahender Pratap, ASI Chhajju Ram and HC Padam went to house of Dinesh at B-Block, West friends enclave, Sultanpuri. Dinesh met them at his house and he told them that he was the eye witness of the incident. He also told them that he recognizes both the offenders. Thereafter this witness alongwith Dinesh went in search of offenders and Dinesh took them to D-13, Aman Vihar, Delhi, where, one of the accused was found present. He was pointed out by Dinesh and Dinesh told them that this boy was Naeem, who was involved in the incident. This FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 15/63 STATE VS NAEEM & ANOTHER witness has identified the accused Salman and he was apprehended at the instance of Dinesh and inquires were made from him. He was then arrested and his personal search was conducted. This accused made disclosure statement, which was also recorded. This accused produced one belt, which he was wearing at that time. The belt was kept in a plastic container and sealed with the seal of MP. It was then taken into possession vide a seizure memo. Thereafter this accused led them to the crime scene and pointed out the crime scene and pointing out memo was prepared by the IO then they returned to the police station. Where, statements of witnesses were recorded and he has identified the belt Ex. P2. During the examination in chief, the Ld. PP for the State had sought permission to ask a leading question to this witness, as to the identity of accused and after hearing, the Ld. Predecessor of this court was pleased to allow to the Ld. APP for the State to ask leading question and he has correctly identified to the accused Naeem. This witness was cross examined by the Ld. Counsels for the accused and during his cross examination by Ld. Counsels for the accused, he has deposed that they reached at the spot on 06.07.2014 in the night but he does not remember the time, but, they went on motor-cycle. He also does not know as to how many police men were standing at the spot, when they reached there. They were standing outside one closed shop. He has further deposed that he does not know what kind of shop it was and he does not remember as this witness did not see whether other shops in the market were opened or closed at that time and he also did not pay attention whether any street light was there at the spot or it was dark. The shop was, however, clearly visible as close without any torch light and he could see the police men and the spot without help of any torch light. He has further deposed that he did not pay attention whether public persons were present at the spot at that time. He has denied that he was mentally upset at that time when they reached at the spot and they simply went to the spot, completed the FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 16/63 STATE VS NAEEM & ANOTHER formalities and returned without verifying the actual fact. HC Padam came to know from someone that the injured has been shifted to Sanjay Gandhi Hospital. Remaining police men remained at the spot when he alongwith ASI Chhajju Ram left for the hospital and he saw the blood at the spot. He has admitted that he did not use any torch light etc to see the blood. He has admitted it to be correct that none of the documents were prepared at the spot. He has denied that he did not go at the spot at all or that he did not notice the blood except outside the shop. He has deposed that they arrived at Jaipur Golden Hospital at late night. He has further deposed that he does not remember whether anybody from family or friends of Mahesh met them in the hospital. This witness has further deposed that he does not remember when he arrived at the spot again after registration of FIR and he does not remember as to how much time, he stayed in the hospital and he did not see as to where exactly site plan was prepared by SI Mahender and he might have prepared while standing at the spot and he did not see whether public persons were present at the spot, when he reached there again. This witness has further deposed that he does not remember the week day of 07.07.2014 and he does not remember the DD No. under which they went to house of Dinesh. SI Mahender Pratap and ASI Chhajju Ram took them to house of Dinesh. He has further deposed that he does not know, who told them about the fact that Dinesh could be a probable witness or who told them the house of Dinesh. Dinesh was inside his house and he does not know how many floors are there in his house and he does not remember whether he had a pakka house or a jhuggi. He has further deposed that he does not even know on which floor he met them or as to which other family members of Dinesh were present in the house and they straightway went to house of Dinesh and they did not inquire of location of his house. Accused Naeem was standing outside his house and he does not remember whether house of Naeem was Pakka house or kacha house. He also does not know how many FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 17/63 STATE VS NAEEM & ANOTHER floors were there and he was standing 2-3 feet away from his house. He was standing in the Gali. He was alone. He did not try to run away on seeing them and Dinesh. This witness has further deposed that he does not know as to who were present in his house and he also does not know how brother of Naeem was informed about his arrest and how he was called. He has further deposed that he does not remember whether he saw the brother of Naeem and he does not remember whether anyone from house of Naeem was called to tell that Naeem is being arrested and he does not remember for how long they stayed outside house of Naeem and arrest memo, personal search memo were not prepared at his presence therefore he does not know where they were prepared and from house of Naeem they came to the police station straightway. He has denied that he could not recollect anything in his cross-examination as he did not join investigation at all or that for the same reason he did not sign the documents of this case. He has also denied that he has deposed falsely.
21. SI Sharvan Kumar has been examined as PW-18, who has deposed that on dated 07.04.2015, he was posted as SI in Police Station Sultan Puri and on that day, he filed the supplementary charge sheet of this case along with FSL result which is Ex.PW15/A & PW15/B. This witness has also proved the PCR form Ex.PW18/A. The opportunity to cross examine this witness was given to the learned counsels for the accused, but they did not cross examine this prosecution witness, so the opportunities of the accused to cross examine this witness were done nil.
22. HC Padam Singh, has been examined as PW-19, who has deposed that on dated 06.07.2014, he was posted as HC in Police Station and on receipt of DD No. 68B, he went to the crime spot of this case i.e. Om Sai Communication, Shop No. D16, Aman Vihar, Delhi, Labour Chowk, Budh FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 18/63 STATE VS NAEEM & ANOTHER Bazar Road and he left the police station at 10:15 PM and reached at the spot in 10 minutes and at the spot, he found a lot of blood was lying on the corner of the road. Meanwhile, ASI Chhajju Ram along with Ct. Yogesh also arrived the spot and then, he was left at the spot to guard the crime scene and ASI Chhajju Ram and Ct. Yogesh both went to Sanjay Gandhi Memorial Hospital as it was learnt that injured had been shifted to that hospital. Thereafter, in the midnight at after 01:30 AM in the intervening night of 06 July and 07 July 2014, ASI Chhajju Ram came alone to the spot and after some time, SI Mahender Pratap and Ct. Yogesh came to the spot. Before arrival of SI Mahender Pratap and Ct. Yogesh, crime team also came to the spot and the crime team inspected the spot and took photographs of the spot. He has further deposed that SI Mahender then prepared the site plan at the instance of ASI Chhajju Ram and also inspected the spot. Thereafter, SI Mahender Pratap collected blood stained concrete and earth control sample from the scene of crime which were kept separately in two plastic containers and those plastic containers were sealed with the seal of MP and were taken into possession vide seizure memo Ex.PW13/B he has identified the signature thereon at point C. Thereafter, SI Mahender recorded his statement Ct. Yogesh and ASI Chhajju Ram at the spot. Thereafter, they returned to the police station. This witness has further deposed that thereafter on dated 07.07.2014 at about 04:30 PM, he again joined investigation with SI Mahender Pratap, Ct. Yogesh and ASI Chhajju Ram and went to the house of eye witness Dinesh at Friends Enclave. IO inquired from Dinesh and then Dinesh was taken along with them and they went to house of accused Naeem and it was Dinesh, who pointed out the house of Naeem to them and Dinesh also told them that he knew both the offenders. He has further deposed that they arrived at the house of Naeem in Aman Vihar, Delhi, but, he does not remember the block of his house. This witness has correctly identified the accused Naeem in the court. He FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 19/63 STATE VS NAEEM & ANOTHER has also deposed that when they arrived in the house of accused Naeem with Dinesh, Naeem was standing outside his house and he was apprehended by them on the identification of Dinesh. SI Mahender made enquiries from Naeem and Naeem was arrested vide memo of arrest Ex.PW10/B, he was personally searched vide memo Ex.PW10/A, but nothing was recovered from him and Naeem was wearing a belt at that time and he gave the belt to the IO and told that he had used the said belt in the occurrence and said belt was sealed and taken into possession vide memo of Seizure Ex.PW10/D1. Accused Naeem had made disclosure statement Ex.PW13/C and pointed out about the place of occurrence vide pointing out memo Ex.PW14/A and accused Naeem was brought to the PS and statement of this witness, ASI Chhajju Ram & Ct. Yogesh were recorded. This witness has identified the belt Ex.P2. This witness was cross examined by the ld. Counsels for the accused and during his cross examination, he has deposed that his statement was recorded by the IO twice on dated 07.07.2014 and he found the same to be correct, but, when the attention of this witness is drawn toward his first statement Ex.PW19/D1 recorded on 07.07.2014, then he has admitted it to be correct that DD Number and time are left blank at points X & Y thereof. He has admitted that no departure entry was made when he received DD No. 68-B. He has also deposed he went to spot on a private motor-cycle and 2-4 public persons were present there. But, he did not enquire whether those persons were nearby shopkeepers or passersby. He has also deposed that blood was also lying at the spot and the distance between the place, where the blood was lying and shutter of shop was of 4-5 feet and further deposed that he protected the scene of crime till the arrival of ASI Chhajju Ram by simply standing over there. He has further deposed that Chhajju Ram arrived at the spot on private motor-cycle at about 10:45 PM and most of the shops were closed and also deposed that the light from the electricity polls on the road FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 20/63 STATE VS NAEEM & ANOTHER were also there and visibility was good at the place of occurrence and anyone could be identified clearly. He has admitted that no written notice was given to public persons to join the proceedings. He did not enquire from the public persons present at the spot and he left the spot at 3/3:30 AM and he did not return the spot except when accused Naeem was arrested as Naeem led them to the spot of the crime. He has also admitted that he did not attempt to collect CCTV footage from the nearby shops. Crime team arrived at about 11:00 PM and took photographs from different angles. Site plan was also prepared in his presence. Blood stained concrete and an earth control were collected and sealed in his presence after 02:00 AM but before 3:30 AM Naeem was arrested on 07.07.2014 at 04:30 PM. He has also deposed that when the earth control and blood stained concrete were taken into possession, Naeem was not present at the spot and when he was shown Ex.PW13/B, where on the signature of Naeem was there, he has stated that he does not know as to how the signature of Naeem appeared thereon. He has denied that the document Ex.PW13/B is a forged. He has also deposed that at time of arrest of Naeem, 4-5 public persons were requested to become witness of arrest & seizure of belt of Naeem, but, none agreed and those public persons did not tell their names and addresses. No legal actions were taken against them for their refusal. No written notice was served on them. He has denied that no sincere efforts were made to join the public witness. He has also deposed that he does not remember the number of floors of the house of Naeem. He has deposed that 2-3 ladies & gents were present in the house of Naeem and they all came out of the house. But, he does not know their names and relations except brother of Naeem. He has admitted that in the memo of arrest of Naeem Ex.PW10/B, it is not mentioned that he was arrested in front of his house and also admitted that name of Dinesh is also not mentioned on Ex.PW10/B. He has denied that signatures of Dinesh & Naeem were obtained on blank papers and address FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 21/63 STATE VS NAEEM & ANOTHER of Diensh is not mentioned on personal search of Naeem Ex.PW10/A. He has admitted that place of occurrence was already in the knowledge of investigating agency before pointing out Naeem about place of occurrence. He has denied that belt Ex.P2 is planted on accused Naeem or that no such belt was ever recovered from accused Naeem or that both the accused have been falsely implicated in the present case or that these documents were manipulated lateron or that alleged recovery is planted on the accused or that he has deposed falsely.
23. On completion of the prosecution evidence, the statements of accused persons u/s 313 Cr. PC were recorded, wherein, both the accused have denied the correctness of the evidence led against them by the prosecution and Accused Salman has taken the plea of alibi that on the date & time of the occurrence, he was there in the house of Munshi Ji (DW3). Accused Naeem has examined himself as DW-1 and he was also cross examined by the Ld. APP for State and by Ld. Counsel for accused Salman. Whereas, accused Salman has examined himself as DW-2, who was cross- examined by the Ld. APP for the State and by ld.counsel for the accused Naeem. Salman has also examined Sh. Munshi in his defence evidence as DW-3.
24. Mohd. Naeem (accused) has examined himself as DW-1.
25. Salman Khan (Accused) has examined himself as DW-2.
26. Whereas, accused Salman has examined Sh. Munshi as DW-3.
27. I have heard the Ld. Counsels for the parties.
FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 22/63STATE VS NAEEM & ANOTHER
28. Ld. APP for state & Ld. Counsel for the complainant have submitted that the case in hand, the FIR has been registered on the complaint of injured Mahesh, which is Ex. PW-2/A, wherein he has levelled allegations against both the accused that this accused Salman @ Sonu has caused knife blow on the chest of the complainant & when the complainant Mahesh tried to rescue himself, he suffered injuries on his hands & shoulder. As, Mahesh was caught by accused Naeem. He has further submitted that injuries on the shoulder is also caused by the knife and when, this injured fell down on the earth, then he was given kick blows and belt blows on the person of the injured and further submitted that Dinesh, who is an eye witness has been examined as PW-10, who had seen the accused while causing injuries to the complainant and when the public persons gathered, then, the accused fled away from the spot and Dinesh and another public person had taken this injured to the Sanjay Gandhi Memorial Hospital in a Rickshaw and when they were on the way to the Hospital, this injured had given his mobile phone to Dinesh, who had telephonically informed to the brother of the complainant, namely, Ashok and submitted that after leaving this injured in the said hospital, rickshaw-puller had gone away and on arrival of Ashok, who is brother of injured, this eye-witness Dinesh had also gone to his house and injured was admitted in the Sanjay Gandhi Hospital by Ashok as name of Ashok is also mentioned on the MLC of the injured Ex.PW6/A. He further submitted that since, the condition of this injured was serious and he was referred to Jaipur Golden Hospital on the same day and further submitted that injuries suffered by the injured have been proved by PW6 & PW11 and from the unrebutted, uncontroverted and unimpeached testimonies of PW6 & PW11, it is proved on record that injured has suffered 06 incise wounds, as mentioned in his MLC Ex. PW-6/A and proved by the prosecution witness PW6 Dr. Shalinder Koul & PW11 Dr. Rajesh. They have not been cross-examined by the counsels for accused FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 23/63 STATE VS NAEEM & ANOTHER and complainant was operated upon by PW8 Dr. Shailesh Jain in the Jaipur golden Hospital and further submitted that this accused Salman @ Sonu was arrested on dated 18.09.2014 and his disclosure statement Ex.PW14/B was recorded and he has also got recovered the knife used in the commission of crime from the house of this accused, which was seized vide memo Ex.PW2/E and further submitted that the disclosure statement Ex.PW14/B to the extent of recovery of knife is also admissible. He has further submitted that since the report of FSL Ex. PW-15/A reveals the presence of blood on the knife Ex.P1 & concrete Ex.P4 and the knife Ex.P- 1 was recovered from the house of the accused Salman and at the instance of this accused Salman and also submitted that since, the testimony of PW-2 remained consistent and unimpeached and brother of the complaint has been examined, as PW-9, who had admitted this injured in the Sanjay Gandhi Memorial Hospital, as name of this Ashok is well mentioned in the MLC of complainant/injured Ex. PW-6/A and also submitted that eye- witness PW-10 has also deposed on the similar lines as that of the complainant and PW-14/Mahender Pratap has explained that PW-10 /Dinesh left the hospital, as the family member of Mahesh had come in the hospital and for the said reasons, the statement of Dinesh was recorded by the IO on 07.07.2014 and also submitted that DD no. 70B was lodged on the PCR call made by Ashok, which was assigned to ASI Chhajju Ram, who is examined as PW-13 and he had prepared the rukka and sent the same for registration of FIR. Accordingly, the FIR no. 724/14 was registered and further investigation was handed over to PW-14/IO Mahender Pratap and further submitted that from the testimony of the PW- 2(complainant) Mahesh, which is corroborated with testimonies of PW-6, namely, Dr. Shalinder Koul, who has proved the MLC Ex. PW-6/A and Dr. Rajesh (PW11), who have proved all 06 injuries suffered by the injured and weapon used in the commission of the crime i.e. knife Ex. P-1 has also been FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 24/63 STATE VS NAEEM & ANOTHER recovered from the house of accused Salman @ Sonu at his instance, who has caused injuries with the knife and further submitted that both the accused in furtherance of their common intention had wrongfully restrained to the injured and thereafter, attempted to kill him, as the accused Naeem had caught to the injured and Salman @ Sonu had caused multiple injuries with the knife and both the accused were also speaking that "US DIN TO TUMHARE BLOCK KE LADKE BACH GAYE THE, MAGAR TU NAHI BACHEGA", so, the intention of both the accused to kill the injured is well proved and the Ld. Counsel for the complainant has submitted that the complainant got medical aid in time. So, he got survived and also submitted that the complainant had to spend lot of pennies on his treatment and Ld. APP for the State & Ld. Counsel for the complainant have prayed for convicting to both the accused u/s 341/34 & 307/34 IPC and Salman under Section 25 & 27 of the Arms Act, they have relied upon the judgments Sunil Kumar Vs. State (NCT of Delhi) 2016 (2) JCC 1406 & Laddan Vs. State (Govt. of NCT of Delhi) 2014(1) JCC 404.
29. On the other hand, the Ld. counsels for both the accused have submitted that the complainant has alleged that 2-3 days before, this occurrence, a quarrel had taken place between the accused and the boys of his block, but no FIR or complaint regarding the previous incident has been proved. He has further submitted that the IO has failed to record the statement of rickshaw-puller, who is alleged to have taken the injured to the hospital and further submitted that it is alleged by the complainant that the complainant was injured by the accused with knife, belt & kicks, but, if this injured was injured with the knife, then, the blood on the belt could be seen. But, as no blood on the belt is seen nor the said belt allegedly used in the commission of crime is sent to the FSL. So, the case of the prosecution is liable to be failed and further submitted that presence of PW-10 at the time FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 25/63 STATE VS NAEEM & ANOTHER of occurrence is doubtful and submitted that PW-10 namely Dinesh claimed to have accompanied the injured in the hospital, this injured did not reveal the name of Dinesh/PW-10 in his first statement Ex. PW-2/A and further submitted that Dinesh is well known to PW-2/Mahesh even prior to this occurrence and had Dinesh been accompanied the injured in the hospital, he could name this witness in his statement Ex. PW-2/A and submitted that since, PW-2 during his cross-examined has deposed that he does not know the name of the person, who took him to the hospital, so, it cannot be believed that this Dinesh had taken injured to the hospital and further submitted that MLC Ex. PW-6/A & DD No. 70-B do not reveal the names of accused and submitted that CCTV cameras are also installed in the area of alleged occurrence, but IO has failed to collect any CCTV footage and PW1 has deposed that photographs of the spot were also taken by the constable Ravinder. But, no such photographs are brought on the record and further submitted that in view of non-recording of the statement of rickshaw-puller and in view of non-recording of statement of Dinesh by the IO on the date of occurrence, the testimony of Dinesh becomes doubtful and case of the prosecution becomes suspicious. He has also submitted that even at the time of making PCR call, Ashok did not name the accused, as DD no. 70B does not reveal the name of any of the accused and further submitted that PW-9/Ashok, who is brother of injured has not given information to the police, soon after receiving the message of suffering of injuries and further submitted that testimony of PW-10 is doubtful and further submitted that PW-13/Chhajju Ram has admitted that no public witness has met him in the hospital and further submitted that PW2 has admitted that there was dim light at the spot, so, how could he identify the accused and submitted that on the date and time of the alleged occurrence the accused Salman @ Sonu had gone to attend circumcise (khatna) ceremony in the house of Munshi, where, this complaint along with other FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 26/63 STATE VS NAEEM & ANOTHER boys had gone at about 6:30 pm on the date of alleged occurrence to beat Salman @ Sonu and they had caused injuries to Salman in the house of Munshi and submitted that since this accused Salman @ Sonu was not present at the time and place of the occurrence and he has been falsely implicated in the present case and submitted that Salman @ Sonu had taken this plea of alibi at the time of recording of his statement u/s 313 Cr.PC and DW3 Munshi, has proved his plea and prayed for the acquittal of both the accused.
30. In rebuttal Ld. APP for the State and counsel for the complainant have submitted that in the cross examination of PW-10, PW-2 and PW-13, certain questions were asked by Ld. Counsels for the accused from the testimonies of these witnesses, it is clear that proper illumination was there at the time and place of occurrence. So, the cross examination of these witnesses established that there was no paucity of light. It is further submitted that accused were well known to this complainant, who has proved this occurrence, so, the testimony of complainant (PW-2) can not be disbelieved and further submitted that the site plan Ex.PW-14/A shows that the place of occurrence and further submitted that the even if, the injured / victim Mahesh and his brother Ashok did not tell the names of accused at the time of medical examination of injured vide his MLC Ex.PW6/A and even if the names of accused could not be mentioned in the MLC Ex PW- 6/A of the Mahesh or DD No. 70-B, the same cannot be held to be fatal for the case of the prosecution. The case of the prosecution can not be disbelieved. Ld. Counsel for the complainant has relied upon the judgment passed by Hon'ble High Court of Delhi in LADDAN VS STATE OF GOVT OF NCT DELHI 2014 (1) JCC 404 and further submitted that since, the testimony of the PW-2 injured / victim has gone unimpeached and corroborated from the testimonies of PW-6 and PW-11 and it is proved on FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 27/63 STATE VS NAEEM & ANOTHER the record that these accused caused six injuries on the person of the complainant Mahesh, so, both the accused are liable to be convicted for the offence u/s 307/341/34 IPC and accused Salman is also liable to be convicted under Section 25 & 27 Arms Act. At the same time it has also been submitted that accused Salman has examined himself as DW-2 and he has deposed that on dated 06.07.2014, he had gone to attend the Khatna ceremony in the house of Munshi. But, during his cross examination by Ld. APP for the State, this accused had admitted that Munshi @ Jan Mohd. is not his relative and further submitted that this accused has concocted a false story that he was beaten by the complainant and some other boys, when this accused went to attend to Khatna cermony in the house of DW-3 Munshi and submitted that accused Salman has deposed in his cross examination that about 100-150 persons attended the Khatna ceremony/ function in the house of Munshi (DW-3) whereas, Munshi who was examined as DW-3 deposed that 70-80 persons gathered in his functions and submitted that it is not probable complaint would have beaten to the accused Salman in the house of this Munshi in the presence of 70/80 or 100/150 persons. It is further submitted that no medical evidence has been brought on the record to show that this accused Salman was beaten or that he has suffered injuries on 06.07.2014 and submitted that the testimony of DW3 is contradictory to the testimony of DW2(accused Salman) and suspicious. So, the same is not trustworthy and prayed for convicting both the accused.
31. I have given thoughtful consideration to the submissions made by the Ld. Counsels for the parties and perused the record.
32. Since, the perusal of the record shows that FIR No. 724/14 Ex.PW12/A was registered U/S 307/34 of IPC, on the basis of complaint of Mahesh (injured) Ex. PW-2/A and Mahesh injured/ complainant has been FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 28/63 STATE VS NAEEM & ANOTHER examined as PW-2, who has deposed that on dated 06.07.2014, he was employed in the office of Money Transfer, situated at D-4/219, Sultan Puri and at that time, he was doing his BA from correspondence. He has further deposed that at that time, he was using mobile phone and 3/4 days prior to 06.07.2014, a quarrel had taken place between Salman @ Sonu & residents of his block and in that quarrel, he was not a party and on dated 06.07.2014 at about 09:30 PM, he was returning from his job and was going to the house of his friend in H-Block, Sultan Puri and when, he arrived at Budh Bazar Road at Labour Chowk, Sultan Puri, accused Sonu @ Salman and his friend Naeem met him there and started quarreling with him. Accused Salman & Naeem were correctly identified by this witness in the Court and this witness has alleged that both the accused threatened him by saying that "US DIN TUMAHARE BLOCK KE LADKE BACH GAYE THE, MAGAR TU NAHI BACHEGA" and all of sudden, accused Sonu @ Salman took out knife and stabbed him on the left side of his chest and after the attack, he tried to run away from there, but, he was caught by accused Naeem and accused Sonu @ Salman stabbed him many times on different parts of his body. He has suffered injuries on his shoulder, chest & hands and when, he fell down on the road and blood was oozing from his wounds and accused Naeem and accused Salman started beating him with their kicks & belt and they were saying "Aaj Tera Kaam Tamaam Karke Rahenge" and further deposed that public persons gathered there and then accused Salman and Naeem ran away from there and this complainant was taken to Sanjay Gandhi Memorial Hospital in Rickshaw by the public persons. This witness(complainant) gave the mobile number of his brother to one of the public person. They called his brother and his brother Ashok came in the Sanjay Gandhi Memorial Hospital and when, he was on the way to the hospital, some public persons made him to talk to his brother Ashok on his mobile, he informed his brother that accused Salman & FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 29/63 STATE VS NAEEM & ANOTHER Naeem stabbed to complainant. His brother arrived in the Sanjay Gandhi Hospital and thereafter, he was referred to Jaipur Golden Hospital and his statement Ex.PW2/A was recorded. He has further deposed that on dated 18.09.2014, he again joined the investigation of the present case and on that day, IO had come to his house at about 07:00 AM and IO/SI Mahender Pratap told him that they had to go for the raid at the house of Sonu @ Salman to apprehend him and accordingly, they went to the house of accused Sonu @ Salman at Balbir Nagar and when, they arrived in the Street and found that Salman was standing in the gali with his 3-4 friends. This witness(complainant) had pointed out towards accused Sonu @ Salman and identified him and on his identification, the accused Sonu @ Salman was apprehended and arrested and this witness has proved the memo of arrest of accused Sonu @ Salman Ex.PW2/B and his personal search memo Ex.PW2/C. He has further deposed that accused Sonu @ Salman took them to the room at first floor of his house and one wooden Takhat was lying therein and from the place under that wooden Takhat and accused Sonu @ Salman took out one knife stained with blood and knife was sealed by the IO and one seal was affixed on the pullanda of cloth, in which, knife was sealed. The first alphabet of that seal impression was perhaps 'M' and sketch of knife is Ex.PW2/D and seizure memo of knife is Ex.PW2/E and he has identified the knife used in the commission of crime Ex.P1. He has also deposed that both the accused met him at labour chowk and they stopped and started quarreling with him. He has admitted that sketch of the knife was prepared by the IO, after it was recovered. He has also admitted that seal with which the knife was sealed in cloth pullanda was 'MP'. This witness was cross examined by the Ld. Counsel for the accused and during his cross examination, he has admitted that he had stopped using the mobile phone, which, he was using on the date of alleged occurrence, after this incident and on the date & time of occurrence, no one FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 30/63 STATE VS NAEEM & ANOTHER was accompanying him and place of incident is not a market area and deposed that there was dim street light at the spot and shops were situated at the distance of 20 steps from the spot. He has denied that shops around the spot remained opened till 12 midnight on the day of incident or that on day of incident, the shops around the spot were opened. The place of occurrence was situated at the walking distance of about 3-4 minutes from the labour chowk and he left his office at about 08:50 PM and he did not mark any arrival and departure entry in his office's register. He has denied that he did not go to his office on the day of incident or that for this reason he is unable to produce the records of his office showing that he had attended his office on that day i.e. on Sunday. He has admitted that it to be correct that CCTV Cameras were installed in the shops near the spot and again said, he is not sure about the same and reiterated that both the accused met him on the way, when, he was returning and both the accused were on foot, when they met him. He has also deposed that he does not remember the address of his friend Vicky at H-block, Sultan Puri, where, he was going. The distance between his house and the labour chowk is less than half kilometer. He has also deposed that distance between the house of Vicky and labour chowk is less than half kilometer. He has further deposed that he knew accused Naeem before, as he has seen him, when, he used to play cricket with other boys of the locality. He knew one Dinesh, as he used to reside in West Friends Enclave, Sultan Puri. He has further deposed that he does not know the distance between his house and the house of Dinesh. Dinesh used to play cricket with them and reiterated that as soon as, public started gathering at the spot, accused ran away from there, on foot. He has denied that no such incident took place at the place in the manner as deposed by him or that due to this reason no public persons gathered at the spot after the incident. He has further deposed that he did not make call at 100 number. He has denied that he did not make PCR call FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 31/63 STATE VS NAEEM & ANOTHER for the reason that no such quarrel or incident took place. He has further deposed that he was not able to walk, when he was removed to hospital in rickshaw. He has admitted that he was conscious at that time and he told to the police that he was taken to hospital in rickshaw and rickshaw puller was not made witness by the police. He does not know, who paid the fare of rickshaw and he was not in a condition to notice the same. He does not know, if, the doctor had made inquiries from the rickshaw puller and public persons, who accompanied him to the hospital. He was dropped at the emergency of Sanjay Gandhi Memorial Hospital by the rickshaw puller and the public persons and thereafter his treatment started. His wounds were stitched in Sanjay Gandhi Memorial Hospital by the doctor on duty in emergency ward. They arrived at the hospital at about 10/10:15 PM and his relatives were present, when his wounds were stitched by the doctor. He has denied that he was not brought to the hospital by the rickshaw puller and the public persons or that for this reason their names are not mentioned in the column of 'brought by' in his MLC. He has denied that he was brought to hospital by his brother Ashok directly from the place, where, he had quarrel with other boys of locality or that his brother Ashok and his father knew about the incident of quarrel with other boys of locality. He has further deposed that he does not remember the time, when, his statement was recorded by the police in Jaipur Golden Hospital, in the late night. He has told the mobile phone number, which he gave to the public persons to call his brother Ashok. The public person, who was with him on the rickshaw called his brother on his mobile phone and Rickshaw was not stopped on the way from the spot to the hospital and in the incident, he suffered injuries on his hand, when he arrived in the hospital, none from his family was present and thereafter his brother & father arrived in Sanjay Gandhi Memorial Hospital within 5 minutes, when, he reached in the hospital. He has denied that the accused did not attack on him or that he FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 32/63 STATE VS NAEEM & ANOTHER has falsely identified the knife in the court to implicate the accused or that no such knife was got recovered by accused Sonu @ Salman from his house or that knife has been falsely planted on accused Sonu @ Salman by the police or that he has deposed at the instance of the IO. He has admitted that in the room from where, the recovery of knife was effected, was opened and was not locked and no one from the houses of neighbourers was called by the IO to join the proceeding and he did not go on the first floor of the house of the accused Sonu @ Salman from where, the recovery was effected and also deposed that he remained on the ground floor and police got recovered the knife and shown to him. They arrived at the house of accused Sonu @ Salman at about 07:00 AM and this witness has also proved the signature on the documents and further deposed that he did not sign any documents at the place of recovery. He has denied that no document of recovery was prepared on the spot or for this reason, he signed the documents in the police station or that he did not join investigation at the time of arrest of accused Salman with IO or that or that signatures of accused Sonu @ Salman were obtained by the police on blank papers or that same were converted into documents later on against him. He has further deposed that at the time of arrest of accused Sonu @ Salman, his mother was present and she was given information about arrest of accused Sonu @ Salman. He cannot say that when ,he signed the documents of arrest of accused Sonu @ Salman, whether those documents were already signed by other witnesses or not. This witness has admitted that he knew Gola, who resided in his colony and his house is situated two streets away from his house. He does not know that Gola had sold any of his mobile. He does not have knowledge about any kind of quarrel of Gola with any other boy. He has admitted that he used to meet Gola and also used to have conversation with him on mobile phone. He has denied that on the day of incident, during the evening hours, he along with his friend Gola and other FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 33/63 STATE VS NAEEM & ANOTHER boys of locality gave beatings to accused Sonu @ Salman, near JNM School, Hari Enclave, D-Block, Aman Vihar or that Sonu @ Salman had suffered injuries in that incident or that his MLC in the Guru Govind Hospital, Raghuvir Nagar was also prepared or that the accused Salman remained in the house of Munshi Ji, after receiving first aid treatment from local doctor or that he was not present at the time of occurrence or that this complainant along with 20-30 boys in the night of 06.07.2014 came outside the house of accused Naeem to give him beatings for the reason that he rescued accused Sonu @ Salman, when, he was given beatings by him and his friends, in the evening. He has further denied that he has given beatings to accused Naeem with his friends or that from the house of Naeem, they went to D-Block, Sultan Puri, to the house of some other boy and there, they had quarrel with that boy and suffered injuries in that incident or that accused have been falsely implicated in the present case for the reason that he had previous enmity with the accused, as Gola & his other friends have quarreled with accused or that the mobile phone of accused was snatched by Gola and other friends. He has denied that on 29.01.2015 at about 07:35 PM, he along with his friends attacked on Shahrukh, brother of accused Sonu @ Salman or that Shahrukh received treatment and medically examined in the Sanjay Gandhi Memorial Hospital vide MLC No. 1675 dated 29.01.2015 or that this witness did not suffer injuries with the knife identified by him in the court or that he suffered injuries in quarrel with some other boys or that after the said quarrel, he came to the spot to concoct the false story to falsely implicate accused in the present case. This witness has been cross examined by the Ld. Counsel for the accused Naeem and during his cross-examination, he has deposed that he did not tell the name of his friend Vicky and his residential address to the police and police did not ask him about the same. He does not know the name of the public persons, who had taken him to the hospital and also informed his brother.
FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 34/63STATE VS NAEEM & ANOTHER Police did not inquire the name of that public person from him. He has denied that accused Naeem was not present at the time of incident or that he has been falsely implicated in the present case. Thus, from the testimony of this witness, it is clear that since this witness has admitted that he does not know the name of the public persons, who had taken him to the hospital and since Dinesh has deposed that he is the friend of complainant. So, the presence of PW10 Dinesh is doubted at the time & place of occurrence and also in the hospital on 06.07.2014. So, from the testimony of this witness, it is clear that on dated 06.07.2014 at about 09:30 PM, this complainant was wrongfully restrained by both the accused in furtherance of their common intention and accused Naeem had caught to the complainant and accused Salman @ Sonu had given 06 knife blows and despite of lengthy cross- examination of this witness, his testimony remained unimpeached on the material points and testimony of this witness is corroborated with his MLC ExPW6/A & testimonies of PW6 & PW11 and PW6 Dr. Shalinder Koul & PW11 Dr. Rajesh have proved the MLC of Mahesh and PW6 & PW11 have not been cross examined by the Ld. Counsels for the accused. So, the testimony of this complainant is corroborated with testimonies of PW6 & PW11 and testimonies of PW6 & PW11 remained unrebutted, uncontroverted, unchallenged and unimpeached and at the time of final arguments, the complainant was also present on one day, he had shown the marks of injuris caused by Salman with knife, which are consistent with the MLC Ex.PW6/A. So, I have no ground to disbelieve the testimony of this complainant, who has proved that he was wrongfully restrained by both the accused & accused Naeem caught him & Salman had caused injuries with knife on the person of the complainant.
33. Whereas, the brother of the injured Sh. Ashok Kumar has been examined as PW-9, who has deposed that Mahesh is the younger brother of FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 35/63 STATE VS NAEEM & ANOTHER this witness. On dated 06.07.2014 at about 10:00 PM, he was present in his house with other members of the family except Mahesh. This witness had received a call on the mobile phone of his father, who was present in the house and this witness had attended the said call and spoke to Mahesh, who told him that Sonu @ Suri and Naeem had stabbed him with knife and had also beaten him with belt and he was going to Sanjay Gandhi Hospital, Mangolpuri, Delhi along with some public persons and they should arrive in the hospital at the earliest and this witness along with his father went to Sanjay Gandhi Memorial Hospital, immediately on his motorcycle and on his arrival in the said hospital, he saw Mahesh also reached in the hospital and his clothes were stained with blood and this witness had dialed 100 number and Mahesh was admitted in emergency by this witness, but thereafter, Mahesh was shifted in the Jaipur Golden Hospital for better treatment, on the same day and Mahesh was discharged on 10.07.2014 from the Jaipur Golden Hospital his statement under Section 161 of Cr.PC was recorded by the police. This witness was cross examined by the Ld. Counsels for the accused and during his cross-examination, he has deposed that on the date of occurrence, Mahesh was returning from his office and he does not remember the phone number of Mahesh and he has saved the same in the contact book of his mobile phone. He further deposed that Mahesh might be possessing the same mobile number, whatever, he was having on the day of occurrence and he is not aware, whether the said mobile phone was in the name of Mahesh in his own or in the name of some other person. He has denied that he is deliberately concealing this fact about the said mobile phone number of Mahesh. He has also deposed that he cannot show the call details of the mobile phone number of Mahesh, on the date of occurrence. He has further deposed that besides Mahesh, Dinesh and one other person, whom, he did not know was also there in the Sanjay Gandhi Memorial Hospital. He has further deposed that Dinesh took Mahesh to FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 36/63 STATE VS NAEEM & ANOTHER Sanjay Gandhi Hospital and this witness might have stayed for about one and half hour in Sanjay Gandhi Hospital. He has further deposed that he was so nervous and does not remember the exact period of his stay in the hospital. He has admitted that he did not tell the physical description of the second person besides Dinesh, who took Mahesh to Sanjay Gandhi Hospital. He has admitted that Dinesh was well acquainted with this witness, as they played cricket together. He has denied that since this witness knew Dinesh very well, so, Dinesh was introduced as a false witness, in the present case or that Dinesh had become a witness on his request or that Dinesh had given false statement to the police against the accused on his request. He has admitted that the rickshaw puller in whose rickshaw, Mahesh was taken to Sanjay Gandhi Hospital did not meet him, when, he arrived in the hospital. He has admitted that he told his name to the doctor, when, Mahesh was admitted in Sanjay Gandhi Hospital and deposed that call was received on the mobile phone of his father at about 10:00 PM and they arrived in the hospital in 20-30 minutes after receiving the said call and police also obtained their signatures on some documents at his residence. He has admitted it to be correct that the day of occurrence was Sunday and there was no dispute between the boys of his locality with the other boys of another locality and he denied that injured was brought to the hospital by this witness directly from the place, where, the injured had a quarrel with other boys of the locality or that this witness and his father were aware that a quarrel took place with the boys of other locality or that he has deposed falsely after concocting false story. No doubt, that this witness has deposed that Dinesh also met him in the Hospital. But, as PW13 ASI Chhajju Ram has deposed that no eye witness met him in the Hospital on dated 06.07.2014 and since PW2 has also not disclosed the name of Dinesh in his statement Ex.PW2/A. So, presence of Dinesh at the time & place of occurrence and in the Hospital is doubted. The testimony FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 37/63 STATE VS NAEEM & ANOTHER of this witness is found to be consistent on the material points and as this witness has proved that soon after the occurrence, this witness had admitted to the complainant Mahesh in the Sanjay Gandhi Memorial Hospital. As his name is also mentioned in MLC Ex.PW6/A (of injured) and he also informed to the police about the present occurrence and on his information, DD No. 70-B Ex.PW7/C was lodged. Testimony of this witness remained unimpeached, so, I have no ground to disbelieve his testimony to this effect that he had admitted the injured in the hospital, soon after occurrence.
34. Whereas, Sh. Dinesh, who is alleged eye witness was examined as PW-10, who has deposed that on 06.07.2014 at about 09:30 PM, he was returning from Jagdamba Market, Aman Vihar and going to his house. When, he reached at Labour Chowk, Budh Bazar Road, near a shop of mobile, which was closed, he saw that accused Naeem had caught Mahesh and accused Salman stabbed Mahesh. He already knew Mahesh, as he was a resident of the block situated near his house. He also knew accused Naeem prior to this incident, as he used to play cricket and he has seen his face at earlier occasions also. He did not know the accused Salman prior to this incident. He has further deposed that after stabbing to Mahesh, the accused Naeem gave beatings to Mahesh with belt and both the accused also gave fists & kick blows. Mahesh fell down on the ground and both the accused fled away from the spot. He has further deposed that public persons gathered at the spot and thereafter, he along with one public person took Mahesh to Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi. He did not recognize the second public person. He has further deposed that Mahesh telephoned his family members from the mobile phone of second public person, when they were going to the hospital. They arrived at Sanjay Gandhi Memorial Hospital. By that time, brother of Mahesh, namely, Ashok Kumar also arrived in the hospital. Thereafter, Ashok admitted FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 38/63 STATE VS NAEEM & ANOTHER Mahesh in the hospital and he left for his residence. On the next day, police arrived at his residence and inquired about the incident and took him to the house of Naeem for his identification and he accompanied the police to the house of Naeem. Accused Naeem was present in his house at D-block, H. No. 13, Aman Vihar, Delhi. He has further deposed that on his identification, the police had arrested the accused Naeem and took him to the place of occurrence and accused Naeem had handed over the belt, which was with him, with which Mahesh was assaulted and the police kept the said belt with it. Thereafter, he along with police officials arrived at the police station, where, his statement under Section 161 of Cr.PC was recorded and he signed the personal search memo of accused Naeem at point A, which is Ex.PW10/A. He has also signed the memo of arrest Ex.PW10/B of accused Naeem and then, the Ld. APP for the State had sought permission to ask certain leading questions and after hearing, the Ld. Predecessor of this Court was pleased to allow the Ld. APP for the State to ask the leading questions and then, this witness has admitted it to be correct that the belt handed over by Naeem was kept in Dabba sealed with the surgical tape and a seal of MP was applied thereon and the said belt was seized vide seizure memo. This witness was cross examined by the learned counsel for the accused and during his cross-examination, he has deposed that the distance between the house of this witness and the house of complainant Mahesh is of about 200/300 meters and he knows Mahesh as he played cricket with him and failed to tell as to from which side Mahesh was coming, when he was caught by the accused. He has also deposed that he has seen the occurrence from the distance of 20 feet and the incident took place at the distance of 5-7 steps from a shop of mobile and he had not seen as to vide which mode of transport, the accused had arrived at the spot and he did not intervene when the accused were beating to the victim. He has further deposed that he did not try to intervene, when the accused were FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 39/63 STATE VS NAEEM & ANOTHER beating to the victim and also deposed that no one tried to catch the accused and he has seen the occurrence for about 1 minute from the other side of the road. He did not chase the accused nor made call to the PCR from his mobile. He has admitted that he knew Mahesh, as he is the friend of this witness and he used to play cricket with him and further deposed that he arrived in his house within 30 minutes after the occurrence. He has denied that he did not witness the incident or that he was not present at the spot. He has admitted that he used to make telephonic talk with Mahesh . He has denied that he has deposed falsely being friend of Mahesh. He has denied that he had made statement before the police on the tutoring of Mahesh and his brother to falsely implicate the accused and he did not notice whether the public persons were present at the time of incident and he paid the charges to the rickshaw puller and Mahesh was oriented and he was recognizing this witness and brother of Mahesh met them in the hospital and no treatment of Mahesh was started in the hospital, in his presence. He has further deposed that police also arrived in SGM Hospital in his presence. He had seen the knife in the hand of accused Salman. He cannot tell the size of the knife. He does not know the mobile number of the person from whose phone, Mahesh called to his brother from the rickshaw and deposed that his holiday was sunday and on the date of occurrence he did not go to his office and he remained at his house. He has also deposed that at the place of incident accused Naeem had handed over the belt to the police. He has admitted that the seizure memo Ex. PW 10/D-1 of belt does not bear his signature. He has admitted that accused are residing in E- Block, Aman Vihar and he does not know any Gola. He has denied that he did not join the investigation in the present case nor Naeem was arrested on his identification or that Naeem was lifted from his house or that this witness on the night of 06.07.2014 alongwith 20-30 boys came outside the house of accused Naeem to give him beatings for the reason that he rescued FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 40/63 STATE VS NAEEM & ANOTHER accused Salman, when, he was given beatings by Mahesh, this witness and other friends on the same evening or that from the house of Naeem they went to B-Block, Sultan Puri to the house of some other boy or that they had quarrel with that boy or that Mahesh suffered injuries in the said quarrel or that this witness has deposed falsely to implicate the accused. Since, this witness has admitted that he is friend of injured Mahesh and during his cross examination, he has also admitted that he did not stop the accused, while they were beating to the complainant Mahesh. So, the such conduct of this witness appears to be unnatural and since this witness has admitted during his cross examination that he is friend of Mahesh, as he used to play cricket with him and since this witness did not meet to the police personnels in the Sanjay Gandhi Hospital on the night of 06.07.2014 and since Mahesh, who has been examined as PW-2 has admitted during his cross- examination that he does not know the name of public persons, who took him to the hospital, whereas, Mahesh is the friend of this witness. Had this witness accompanied to the injured Mahesh in the Hospital, Mahesh could disclose the name of this witness in his complaint Ex.PW2/A. But the name of this witness is not found in the complaint Ex.PW2/A and conduct of this witness also appears to be unnatural and since this witness did not meet to the police on the night of 06.07.2014 in the Sanjay Gandhi Memorial Hospital. So, the presence of this witness at the time, place of occurrence & in the Sanjay Gandhi Memorial Hospital is doubted. So, testimony of this witness to this effect does not inspire any confidence.
35. Dr. Shalinder Koul has been examined as PW-6, who has deposed that she has seen MLC no. MLC No. 12498 of injured Mahesh aged about 22 years male dated 06.07.2014. He has deposed that the patient was brought to the casualty of hospital at 11:30 PM on 06.07.2014 by Ashok Kumar, who was the elder brother of injured and with alleged history of FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 41/63 STATE VS NAEEM & ANOTHER sustained multiple stabbed injury with complaints of chest pain and breathlessness, he noticed the following injuries :-
Incised wound present over medial side to the left nipple approx. 3 cm x 1 cm x bone deep, two incised wounds over left forearm size approx. 3 cm x 1 cm and 2 cm x 1 cm x 1 cm, two incised wounds over right forearm size approx. 1.5 cm x 1 cm x 1 cm, 2 cm x 0.5 cm x 0.5 cm, incised wounds left should 3 cm x 1 cm x 1 cm. He has proved MLC Ex.PW6/A and the portion encircled red from x to x on MLC is in his handwriting and bearing his signatures at point A. The opportunity to cross examine this witness was given to the learned counsels for the accused, but they did not cross examine this prosecution witness, so the opportunities of the accused to cross examine this witness were done nil. Thus, the testimony of this prosecution witness remained unrebutted, uncontroverted, unchallenged and unimpeached and from the testimony of PW-6 is proved on record that the six injuries suffered by the complainant Mahesh were incised wounds on various parts of the body of the complainant. So, I have no ground to disbelieve the testimony of PW2, PW6 & PW11.
36. Whereas, Dr. Rajesh, CMO, Sanjay Gandhi Hospital was also examined as PW-11, who has deposed that he has seen the MLC No. 12498 of injured Mahesh aged 22 years male dated 06.07.2014. He has also deposed that the patient was brought to the casualty of hospital at 11:30 PM by Ashok Kumar, who is the elder brother with alleged history of sustained multiple stabbed injury and the patient was conscious & oriented. This witness had prepared the MLC of the patient and he noticed the following injuries:-
Incised wound present over medial side to the left nipple approx. 3 cm x 1 cm x bone deep, two incised wounds over left forearm size approx. 3 cm x 1 cm x 1 cm, 2 cm x 1 cm x 1 cm, two incised wounds FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 42/63 STATE VS NAEEM & ANOTHER over right forearm size approx. 1.5 cm x 1 cm x 1 cm, 2 cm x 0.5 cm x 0.5 cm, incised wounds left should 3 cm x 1 cm x 1 cm. He further deposed that the MLC prepared by him is Ex.PW6/A and the portion encircled red from q to q1 on MLC is in his handwriting and bearing his signatures at point Z and he opined the injuries as simple. The opportunity to cross examine this witness was given to the learned counsels for the accused, but they did not cross examine this prosecution witness, so the opportunities of the accused to cross examine this witness were done nil. Thus, the testimony of this prosecution witness remained unrebutted, uncontroverted, unchallenged and unimpeached and from the testimony of PW-11 is proved on record that the six injuries suffered by the complainant Mahesh were incised wounds on various parts of the body of the complainant and all injuries were found to be simple in nature. This witness was not even given single suggestion by the Ld. Counsels for the accused that the injuries as mentioned in the MLC Ex.PW6/A(proved by PW11) were not caused with the knife, so, the testimony of PW2 is corroborated with the testimony of PW11 and the MLC Ex.PW6/A. So, I have no ground to disbelieve the testimonies of PW2 & PW11 that the injuries as mentioned in the MLC Ex.PW6/A were caused on the person of the complainant with the knife Ex.P1.
37. Whereas, Mohd. Naeem (accused) has examined himself as DW-1, who has deposed that on 06.07.2014 at about 6.30 - 7.00 pm, he was present at his residence and at about 8.00-8.30 pm, two police officials had come to his residence and inquired his name from him and when, he told them his name, they told him to come to PS Sultan Puri, as some inquiry was to be made from him. This witness has further deposed that he went with them to PS Sultan Puri and then his father and brother had also come in the PS. Thereafter, he was arrested in the present case, which is a false FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 43/63 STATE VS NAEEM & ANOTHER case. He has not committed any offence and he is innocent. He has further deposed that as 06.07.2014 was a Sunday, he remained at home during the entire day till the arrival of the two police officials at his residence. This accused was cross examined by the Ld. APP for the State and during his cross-examination, he has admitted that the police officials did not make any inquiry from him on 06.07.2014, when, he was taken to PS from his residence by two police officials and they obtained his signatures on 2-3 papers. He has also admitted that neither his father nor his brother had filed any complaint before any forum regarding his illegal detention by the police officials on 06.07.2014 in PS. He does not have any document to show that he was illegally detained in PS on 06.07.2014 after 8.30 pm. This witness has denied that he was not taken to PS Sultan Puri by two police officials on 06.07.2014 at about 8.00-8.30 pm or that he was not illegally detained in PS Sultanpuri in the night of 06.07.2014. He has denied that he could not produce any document to show his illegal detention in PS on 06.07.2014, as he was never illegally detained in the PS on that day. This accused has denied that on dated 06.07.2014 at about 9.30 pm, he and accused Salman Khan were present at labour chowk, Budh Bazar Near Hari Hospital, Aman Vihar or that on 06.07.2014 at above place, he caught complainant Mahesh and accused Salman stabbed him or that he has deposed falsely to save himself by stating that he was lifted from his residence on 06.07.2014 at about 8.30 pm by police officials or that he was taken to PS at that time.
This witness was cross examined by the ld. Counsel for the accused Salman Khan @ Sonu and during his cross examination, he has deposed that after his appearance in PS Sultanpuri, he was made to sign on some blank papers and thereafter he was put in the lock up. As he was in custody he could not file a complaint case immediately regarding his false implication in the present case. After he was released on bail, he along with his elder brother Mohd. Haroon had gone to PS Aman Vihar to make a complaint of his false FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 44/63 STATE VS NAEEM & ANOTHER implication, but his complaint was not registered nor the complaint of his brother was taken. Since, the occurrence in the case in hand had taken place on 06.07.2014 at 09:30 PM and accused Naeem has claimed that he was apprehended by the police at about 08/08:30 in the present case. But, he failed to bring on record any cogent evidence to prove this fact. His testimony is found to be contradictory. As in his examination in chief, he has stated that on dated 06.07.2014 police had enquired from him. But, during his cross-examination, he has admitted that on dated 06.07.2014, police did not enquired from him. He claims that on dated 06.07.2014, he was detained in the police station. But, no complaint was even filed by him or his family members against any police official. So, in the absence of the any cogent and reliable evidence, the testimony of this accused is held to be not believable that this accused was arrested prior to the commission of the offence by this accused and prior to the registration of FIR. So, his such plea that he was arrested prior to the commission of the offence rejected and testimony of this witness is held to be false and unreliable.
38. Whereas, Salman Khan (Accused) has examined himself as DW-2, who has deposed that on 06.07.2014 at about 4.00 - 4.50 pm, he was present at D-20 Aman Vihar, Suleman Nagar, Delhi at the house of Munshi ji @ Jaan Mohd.. As, there was khatna ceremony. He remained there till about 11.00 p.m. He has further deposed that at about 6.30 p.m on 06.07.2014, 06-07 boys namely Mr. Mahesh, Mr. Gola, Mr. Golu, Mr. Sunny, Mr. Iqbal and Mr. Akram had come to the house of Munshi ji @ Jaan Mohd to beat him, as few days before, he had a quarrel with Mr.Mahesh, Mr. Gola and Mr.Golu over a second hand mobile phone, which, he had purchased from Mr. Gola for Rs. 700/-. Mr. Gola told him to take Rs. 700/- from him and to return the second hand mobile phone to him or to give him more money, as he wanted to sell it for Rs.2000/- and he told FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 45/63 STATE VS NAEEM & ANOTHER him that since, he had purchased it 3-4 days earlier and he could not give him more money. This accused asked Gola to return Rs. 700/- to this accused Salman Khan and then he would give the phone to Gola. All three of them forcibly took the mobile phone from this accused, but, they did not return Rs. 700/- to this accused. He has further deposed that he had tried to take phone from them, but, in this process the phone was broken. Thereafter, they had a fight, in which, the head of Mr. Gola was injured. This incident regarding the quarrel and the injury on the head of Mr. Gola had occurred on 02.07.2014. He had called the police at 100 number on 02.07.2014 and he, Mr. Gola and their family had gone to the PS, where, compromise was arrived at between them and he was also injured in the incident of 02.07.2014. He has further deposed that on 06.07.2014, when Mr. Mahesh, Mr. Gola, Mr. Golu, Mr. Sunny, Mr. Iqbal and Mr. Akram had come to the house of Munshi ji @ Jaan Mohd. to beat this accused, they had beaten this accused(Salman Khan) with wooden sticks (Dandas) and he received injuries on left hand and right leg and some other minor injuries over the body. Thereafter, all the boys had gone. He was taken by Munshi Ji at Nazar Charitable Hospital for treatment and then, again, he went to the house of Munshi ji, where he rested till about 11.00 -11.30 p.m. he had taken subsequent medical treatment from Guru Gobind Singh Hospital, Raghubir Nagar. On 08.07.2014 he had called the IO, who had made them to enter a compromise on 02.07.2014, on 07.07.2014 on his mobile phone and informed him regarding his beating on 06.07.2014. The IO had told him that he had got the dispute resolved between them on 02.07.2014 and his work was to arrest the violators of law. He also told them that if they did not stop fighting, he would arrest them. He has further deposed that he had not committed any offence, as alleged, he was not arrested in the present case and he remained in home. He was arrested on 17.09.2014, when he was driving the Gramin Sewa vehicle near Polestar School, Avantika, FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 46/63 STATE VS NAEEM & ANOTHER Rohini at about 12.30 p.m. Nothing incriminating was recovered from his possession or at his instance. He has further deposed that he has been falsely implicated in the present case and a knife has been planted on him and he has not confessed in the present case nor gave any disclosure statement and he was beaten by the police and forced to sign on 2-3 blank papers. Mr. Parvesh, his brother was also detained in the PS at night and he resides in H block, whereas, Mr.Gola, Mr. Golu, Mr. Mahesh and other boys reside in F block. Boys of H block and F block societies used to play cricket and he used to watch the game. They used to fight over the prize money. He has further deposed that after he had rested till about 11.00- 11.30 pm in the house of Munshi ji on 06.07.2014, then, he had gone at the first floor of his house to sleep at night. he had left the house of Munshi ji on 07.07.2014 at about 9.00- 10.00 am and then he returned to his own house. This witness was cross examined by the Ld. APP for the State and during his cross examination, he has deposed that Munshi Ji @ Jaan Mohd. is not his relative. Munsh ji did not give any invitation card to him for inviting in the khatna ceremony. He has further deposed voluntarily that Munshi Ji personally visited his house and invited him and his family. Only one person of a family was invited in the said function. The parents of this accused, his one elder brother Mohd. Parvesh Khan, his two elder sisters, two younger brother and one younger sister reside with him in his house. Munshi ji is not friend of his father or his brother. However, Munshi Ji had worked as plumber in their house at the time of construction of their house and for any problem in the waterline, they oftenly called him for repair work. He has denied that there was no khatna ceremony in the house of Munshi ji or that he was not invited by him to attend any ceremony in his house on 06.07.2014. He has deposed that on 06.07.2014, he went to the house of munshi ji to attend the Khatna ceremony and he remained there whole night and the function of khatna ceremony was organized by Mohd.
FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 47/63STATE VS NAEEM & ANOTHER Munshi on the road outside his house and about 150 persons were present there and attended the function and on 06.07.2014 at about 4.30 pm he was present along with Mohd. Munshi and his other family members, where the caterers/halwai were cooking the food. In the meantime Mr.Mahesh, Mr. Gola, Mr. Golu, Mr. Sunny, Mohd. Iqbal and Mohd. Akram came there and started beating him. At that time Mohd. Munshi, his family members and caterers were present. Mr. Mohd. Munshi and his two brothers had tried to save him, but none of the others persons, who were present there had intervened. This witness has further deposed that he does not know the names of two brothers of Mohd. Munshi. He has denied that Mr. Mahesh, Mr. Gola, Mr. Golu, Mr. Sunny, Mohd. Iqbal and Mohd. Akram did not come on 06.07.2014, outside the house of Munshi Ji or that they did not give any beatings to him or that no such incident took place outside the house of Munshi ji. He has further deposed that the blood started coming out from the injuries sustained by him on his lips and nose and voluntarily deposed that there was internal injury on his leg and hand and his clothes also got stained with blood at the time of alleged incident. This witness has admitted that he did not make any PCR call however Munshi ji made call to the police. The police officials did not come to the spot. Whereas, his defence witness(DW3) has deposed that police had come when, this accused was taken to Nazar Hospital and police instructed to the persons present that the accused should be sent to the police station. Thus testimony of this accused is contradictory to the testimony of DW3. If Police asked him to come in the police station, then, why did he not go in the police station on 06.07.2014. This accused has admitted that he did not go to PS on 06.07.2014 and voluntarily deposed that he went to PS on 07.07.2014 and he did not produce his blood stained clothes on 07.07.2014 before the police. This witness has further deposed voluntarily that he had shown his injuries to the police and the police did not record his statement on FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 48/63 STATE VS NAEEM & ANOTHER 07.07.2014 and he did not produce any slip/any document before police showing his treatment in Nazar Charitable hospital, Sultan Puri on 06.07.2014 and he had gone to Guru Gobind Singh Hospital on 08.07.2014 as he had suffered a fracture in his left elbow and he had shown his MLC, X-ray plate and x-ray report to SI Mahender Partap of PS Sultan Puri on 08.07.2014 at about 7.00 pm and the police had kept all his medical record. His statement was recorded by the police on 08.07.2014. No FIR was lodged on his statement. He has further deposed that the police did not hand over any receiving of that complaint to him. He did not file any complaint case regarding the above incident dated 06.07.2014. He did not make any complaint addressing to ACP or DCP alleging that no case was registered on his statement dated 08.07.2014. He has denied that he did not make PCR call on 06.07.2014 or visited PS on 06.07.2014, as no such incident took place with him or that he did not file any complaint before any forum regarding incident dated 06.07.2014, as no such incident took place with him on that day. He has further deposed that no receipt was prepared at the time of purchase of mobile phone by him from Mr. Gola and the mobile phone was of make 'Spice' and in that mobile phone he used SIM no. 9868777864 and he had lodged a complaint in PS Aman Vihar on 02.07.2014 regarding snatching of his mobile phone by Mr. Mahesh,Mr. Gola and Mr. Golu after giving beatings to him and the compromise was effected on 02.07.2014 in PS Aman Vihar as Mr. Golu had also received injuries. The FIR was not registered regarding the incident of dated 02.07.2014 and he does not have any document to show that he had made a complaint in PS Aman Vihar regarding the incident of 02.07.2014 and that the dispute was compromised. He has admitted that he is not having any copy of complaint dated 02.07.2014 or any document pertaining to compromise as no such incident took place on 02.07.2014. He has admitted that he has never had any quarrel with Mr. Mahesh prior to 06.07.2014. He FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 49/63 STATE VS NAEEM & ANOTHER had a quarrel on 02.07.2014 only with Mr. Golu, Mr. Mahesh and Mr.Golu are friends. He has denied that on 06.07.2014 at about 9.30 pm, he along with accused Mohd. Naeem attacked on Mr. Mahesh in order to take revenge from him or that on 06.07.2014, he stabbed Mr. Mahesh with knife or that on 18.09.2014, he was arrested by the police from near to his house situated in Balbir Nagar or that he got recovered the weapon of offence I.e knife from his room before the police.This witness was also cross-examined by the Ld. Counsel for the accused Naeem and during his cross- examination, he has admitted it to be correct that this accused and accused Naeem have been falsely implicated in the present case. When, he was cross examined by the ld. Counsel for the accused Naeem, he has also admitted that nothing incriminating has been recovered from his possession or at his instance. He has further admitted it to be correct that he was not present at the spot at the alleged time and place of the alleged incident. Thus, testimony of this accused is found to be contradictory to the testimony of DW3 Munshi Ji. This accused Salman has taken the plea of Alibi and claimed that on the date & time of this occurrence, he was present in the function of KHATNA organized by Munshi in front of his house. But, no documentary proof is brought on the record. This accused claimed that on dated 06.07.2014 at about 06:30 PM, he was beaten by the complainant and other boys in the presence of 150 persons, who had attended Khatna ceremony. But, it is not probable that 6-7 persons would have beaten to this accused in the presence of 150 persons. This accused has deposed that blood also oozed out of his injuries and his clothes were stained with blood. But, no medical evidence has been brought on the record of Nazar Hospital, where, he claimed to have been treated and Munshi has admitted that Salman did not bleed. This accused failed to produce any receipt of alleged phone. Testimony of this witness appears to be suspicious being contradictory to the DW3. This accused pleaded that FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 50/63 STATE VS NAEEM & ANOTHER he was beaten by the complainant Mahesh & others in the function of Munshi. But, had he been beaten, he could file complainant against the complainant and others, but, he failed to prove on the record that he had filed any complaint against the complainant Mahesh or any other person in the absence of any such proof, the testimony of this accused is disbelieved and the plea of alibi taken by this accused is also disbelieved. So, the plea of alibi appears to be afterthought and which is concocted to plead such defence.
39. Whereas, accused Salman has examined Sh. Munshi as DW-3 in his defence, who has deposed that on dated 06.07.2014 there was Khatna Ceremony of his son Arbaz Khan and the party/function was organized by him and he had called all his near, dears & relatives and accused Salman had come to his house to attend the said function at 4:15 p.m. and Salman @ Sonu remained seated with in his function with the HALWAI. He has also deposed that at about 6:00 p.m., 6-7 boys came in his function and started beating to accused Sonu @ Salman with the DANDAS/LATHI and this witness alongwith his brother Lal Mohammad saved Sonu from the clutches of those 6-7 boys and this witness had taken Sonu @ Salman to a doctor of Nazar Hospital and they returned from the hospital to his house and accused Sonu @ Salman laid down on a cot near the HALWAI and this witness was supervising all the guests, as the function was organized by him outside the gate of his house. He has also deposed that accused Sonu @ Salman remained with him from the time of his arrival to his house till departure at 7:00 A.M. on the next day and since he was busy in the function, so, he could not approach to police and some one called at 100 number, police came on the spot, when this witness took Sonu @ Salman to the hospital and those police officials instructed to the persons present in his house to send Sonu @ Salman in the police station. But, accused have FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 51/63 STATE VS NAEEM & ANOTHER failed to prove on record any record of such call at 100 number by this witness Munshi He has also deposed that accused Sonu @ Salman remained in his house in front of his house from 6:00 P.M. to 11:00 P.M. when, they went to sleep at the first floor of his house and after 3-4 days of the said incident, police officials called this witness to PS Sultan Puri and police officials threatened him to falsely implicate in a case, instead of recording of his statement as witness. So, he did not approach to the police and thereafter, this witness was cross examined by ld. Addl. PP for State and during his cross-examination he has deposed that he is plumber by profession, he had worked in the house of Salman and he knew Salman for about 4-5 years prior to 2014. He does not have visiting relation with the family of accused Salman, but, he visited his house in connection with his work. He has also deposed that he had invited his friends and relatives in the Khatna ceremony of his son and deposed that he had given invitation to the father of accused Salman, but, only Salman had attended the ceremony of his son, but, his other family members did not come. He failed to tell the name of elder brother of Salman. He has also deposed that 70-80 persons attended his said function and the said function was not got photographed. He has also deposed that he cannot produce any documentary proof regarding the Khatna ceremony on dated 06.07.2014 in his house. He has also deposed that the injuries sustained by the accused Salman did not bleed and neither this witness nor any member of his family sustained any injury and he had informed to the doctor of Nazar Nursing Home that 6-7 persons attacked on Salman with LATHIS and DANDAS. The Doctor of said nursing home did not inform to the police nor he had asked him to inform to the police and the doctor did not prepare any document regarding the bringing of accused Salman in the said nursing home with the history of assault by 6-7 persons. He has denied that no such incident have ever taken place in front of his house or that Salman was never taken to Nazar Nursing FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 52/63 STATE VS NAEEM & ANOTHER Home or that for the same reason no document regarding his treatment was prepared. He has also deposed that the walking distance between the Nazar Nursing Home and his house is of about 30-35 minutes and he did not inform to the parents or any other relative of the Salman regarding the alleged incident and he took Salman to Nazar Nursing Home on foot. If Salman could go to the hospital on foot. He could also go to the police station, but, he did not go to the police station on 06.07.2014 to file complaint. Accused have failed to prove any record of PCR calls by Munshi. This witness has also deposed that he did not ask Salman to return to his house. He has denied that Salman did not stay in his house, on the intervening night of 06.07.2014- 07.07.2014. He has also deposed that he does not know the name of father, brothers, sisters and mother of accused Salman. He has further deposed that he is not friend of accused Salman and this witness has also deposed that he did not inform police even after 06.07.2014. He did not file any complaint before the police and or in the court regarding the said incident dated 06.07.2014. He has denied that he is friend of Salman or that he has deposed falsely to save Salman. Thus, the testimony of this witness is found to be self contradictory as on the one side he has deposed during his cross-examination he has given invitation to the father of Salman to attend the Khatna ceremony of his son. But, he failed to tell the name of father of accused Salman. Had he invited to the father of Salman, he could tell the name of father of Salman. Since this witness has admitted that no document regarding the treatment of Salman in the Nazar Hospital was prepared and he did not file any complaint to the police regarding the alleged occurrence of beating to the accused Salman and this witness has deposed that 70-80 persons had attended his function. Whereas, accused Salman has deposed that 150 persons attended the Khatna Ceremony, so it is not probable that in the presence of 70-80 or 150 persons Salman could be beaten by 6-7 persons, as alleged by this witness.
FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 53/63STATE VS NAEEM & ANOTHER Since the testimony of this witness is self contradictory and also contradictory to the testimony of Salman, as Salman has deposed during his cross-examination that 150 persons had attended the function of Munshi. Accused Salman has deposed that police did not come on the call of Munshi (DW3). Whereas, DW3 has deposed that police had come. Thus, there are material contradiction in the statement of accused Salman & DW3. Since, this witness has also deposed that Salman did not bleed in the alleged occurrence whereas Salman had deposed during his cross-examination that his clothes were also stained with blood, so, the testimony of this witness appears to be doubtful. Had Salman been beaten by 6-7 persons with Dandas, he could suffer many injuries and he could not go to the hospital on foot and the doctor in the Nazar Nursing Home could also inform to the police on receiving of information from this witness that the Salman was beaten. But doctor also did not inform to the police, so in view of such contradictory statement of this witness, the testimony of this witness does not inspire any confidence and it appears to the court that this witness has come in the court to support this accused Salman that too after concocting a false story so the testimony of this witness does not inspire in any confidence that Salman remained with DW3 on dated 06.07.2014 or that Salman was beaten by the complainant or other persons in the function of this DW3 or that Salman had suffered any injury from the hands of the complainant or other persons and in view of contradictory testimony of this witness, the plea of alibi taken by accused Salman is rejected.
40. The ld. counsels for the accused have submitted that the IO has failed to record the statement of the rickshaw puller, who is alleged to have taken the Mahesh to the hospital and IO has also failed to collect the CCTV Footages and submitted that many CCTV Cameras are installed in the area of the alleged occurrence & the photographs alleged to have been taken by FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 54/63 STATE VS NAEEM & ANOTHER Ct. Ravinder have not been brought on the record, so, the case of the prosecution becomes doubtful. But, in the considered opinion of this court, if, the IO has failed to collect the CCTV Footages, failed to record the statement of the rickshaw puller, who is alleged to have taken injured (Mahesh) in the hospital or even if photographs taken by Ct. Ravinder are not brought on record, the case of the prosecution cannot be doubted, as from the testimony of Ct. Ravinder, who has been examined in the court as PW16, it is clear that the all the negatives of the photographs clicked at the spot were destroyed. No doubt, IO could collect the CCTV Footages of the cameras installed in the area of this occurrence, but, if, he did not collect the CCTV footages or in view of the non recording of the statement of the rickshaw puller, the testimony of the complainant, who has been examined in the court as PW2, cannot be ignored. Which is found to be trustworthy and reliable and which has also been corroborated with his MLC Ex.PW6/A, testimonies of PW6 Dr. Shalinder Koul, PW11 Dr. Rajesh & also PW8 Dr. Shalesh Jain (who had operated the complainant). The ld. Counsels for the accused have submitted that PW2 (complainant) has admitted that the light was dim at the place of the occurrence, so, how could the complainant identify to the accused. But, this court does not find any force in such submission of the ld. Counsels for the accused, because the complainant already knew both the accused and complainant has nowhere stated that there was darkness or that he was not able to see the accused at the time of the occurrence. Even otherwise, from the testimonies of PW2, PW14 & PW18, it is proved on record that there was proper illumination at the place of occurrence. Since, the FIR has been lodged promptly on the statement of the complainant and accused have been named in the FIR, so, it cannot be held that the complainant could not see the accused, when, he was attacked by these two accused. The Ld. Counsels for the accused have submitted that previous quarrel of the accused with the boys of locality of FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 55/63 STATE VS NAEEM & ANOTHER the complainant has not been proved on the record and thus, the motive of the present occurrence is not proved on the record, so, in the absence of motive to commit the offence, the case of the prosecution becomes doubtful. But, this court does not find any force in the such submissions of the Ld. Counsels for the accused, as the motive is a double edged weapon, as held by their lordship of Supreme Court of India in catina of judgments, so, even if, the previous quarrel of the accused with the boys of the locality of the complainant or motive to commit the present offence is not proved on the record, the case of the prosecution cannot be doubted.
41. Since the complainant(PW2) has alleged that the accused Salman had caused injuries on his person with the knife Ex.P1 and from the testimonies of PW6 & PW11, it is proved on record that this complainant has suffered 06 incised wounds on his person and testimonies of PW6 & PW11 have gone uncontroverted, unrebutted & unimpeached, as both the witnesses have not been cross examined. So, I am inclined to hold that incised wounds were caused on the person of the complainant/injured with the knife by Salman and since the disclosure statement Ex.PW14/B of accused Salman was also recorded, wherein, he has stated that he could get the knife used in the commission of the crime recovered and in pursuance thereof, the blood stained knife has been recovered from the house of this accused Salman, so, part of the disclosure statement of this accused to the extent of the recovery of the knife Ex.P1 is admissible U/S 27 of Indian Evidence Act.
42. The ld. Counsels for the accused have submitted that in view of non mentioning of the names of the accused in the MLC of the complainant and also in DD No.70B Ex.PW7/C, the case of the prosecution becomes doubtful. No doubt that DD No. 70-B Ex.PW7/C was registered on the FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 56/63 STATE VS NAEEM & ANOTHER PCR call given by Ashok, who has been examined as PW9 and said PCR call does not reveals the names of the accused and similarly, the MLC of the victim Ex. PW-6/A does not reveal the name of the accused. But as, the ld. Counsel for the complainant has relied upon the judgment passed by their Hon'ble High Court of Delhi in judgment "Laddan Vs. State of Govt of NCT of Delhi 2014 (1) JCC 404", wherein the lordship was pleased to hold that:-
"As regards non mention of name of the appellant in MLC is concerned, it may be mentioned that that is no rule of law that MLC must contain the name of the accused. The primary duty of the doctor is to treat the patient and not to find out who had caused the injuries.
"Mere absence of the name of the appellant from the DD too would not be fatal to the case of the prosecution. DD entry is the nature of a primary information to the police officer and sets the police machinery in action. it is not expected to be a detailed and complete record of the incident with the details of all the accused, witnesses or evidence. it is settled principle of law that a DD entry is a cryptic recording of information received at the police control room/ police station and likewise the FIR is not an encyclopedia and does not contain the minute details pertaining to the incident in respect whereof the information is received."
43. So, in the light of abovesaid judgments, passed by Hon'ble High Court of Delhi. I am inclined to hold that non-mentioning of the names of the accused in the MLC of the complainant Mahesh Ex.PW6/A and in the DD No. 70-B Ex.PW7/C, is not fatal for the case of the prosecution.
44. Since, this case was registered on the complaint Ex.PW2/C filed by the injured Mahesh and he has been examined as PW2 and his testimony remained consistent with his complaint Ex.PW2/C and despite of his FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 57/63 STATE VS NAEEM & ANOTHER lengthy cross-examination done by the Ld. Counsels for both the accused, his testimony has gone unimpeached and from the testimony of this prosecution witness no. 2, it is proved on record that the accused Salman Khan had caused 06 incised wound injuries on the person of this Mahesh with the knife Ex.P1 as accused Naeem had caught Mahesh and both the accused had actively participated in the commission of offences in furtherance of their common intention.
45. No doubt that the presence of Dinesh, who is the alleged eye witness, at the time & place of occurrence is doubted, but as the injured Mahesh has alleged that when, he had tried to run away from the spot, he was caught by Naeem and accused Salman Khan @ Sonu had given the knife blows on the person of the complainant and his testimony is fortified with the medical evidence and since, it is settle principle of law that quality of evidence has to be looked into and not the quantity. Since, Mahesh is an injured person and his testimony is found to be consistent, believable, trustworthy & unimpeached and same is corroborated with the medical evidence. So, it is relied upon.
46. No doubt that this complainant has alleged that this accused Salman had caused stab blows on the person of complainant/injured, but, the perusal of the MLC Ex.PW6/A & testimonies of PW6 Dr. Shalinder Koul & PW11 Dr. Rajesh reveal that the complainant Mahesh has suffered 06 incise wound injuries and PW6 & PW11 have duly proved the MLC of this complainant and both of these witnesses have not been cross examined by the Ld. Counsels for both the accused, so, their testimonies have gone unrebutted, uncontroverted & unimpeached. Whereas, Dr. Shalesh Jain from Jaipur Golden Hospital, who has been examined as PW8, from which, it is clear that this the operation of the complainant was done by him and FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 58/63 STATE VS NAEEM & ANOTHER proved that this complainant was admitted in the hospital on dated 07.07.2014 and proved the discharge summery Ex.PW8/A, which manifests that this complainant was discharged from hospital on dated 10.07.2014. No doubt that this PW8 Dr. Shalesh Jain did not mention the size of the wounds in Ex.PW8/A. But, in view of non mentioning of the size of wounds on the person of the injured, the testimony of this PW8 cannot be disbelieved, which is otherwise found to be trustworthy. The brother of this complainant namely, Ashok, who has been examined as PW9 and from the testimony of this PW9, it is proved on record that soon after the occurrence, complainant was admitted in the S.G.M. Hospital by PW9 and testimony of this witness Ashok is corroborated with the MLC Ex.PW6/A, which manifests that name of the PW9 Ashok Kumar is also mentioned therein. I have no ground to disbelieve that soon after the occurrence, this complainant Mahesh was admitted in the hospital by his brother by Ashok Kumar (PW9). No doubt that this Mahesh has alleged that he was given stab blows by the accused. But, as MLC of the Mahesh reveals that injuries were not of stab wounds, but, the 06 wounds on the person of the complainant were of incise in nature. The charge against both the accused was framed under Section 307/34 of IPC The essential ingredients of the offence under Section 307, I.P. C are the following:
i) That the death of human being was attempted;
ii) That such death was attempted to be caused by, or in consequence of, the act of the accused.
iii) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as
iv) the accused knew to be likely to cause death; or
v) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause such death by doing an act known to him to be so imminently dangerous that it must in all probability cause (A) death, or (B) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.
The word "intent" is derived from the word archery or aim. The "act" attempted to must be with "intention" of killing a man. Intention, which is a state of mind, can never be precisely proved by direct FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 59/63 STATE VS NAEEM & ANOTHER evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person can't be proved by direct evidence but is to be deduced from the facts and circumstances of a case. There are various relevant circumstances from which the intention can be gathered. Some relevant considerations are the following:
a). The nature of the weapon used.
b). The place where the injuries were inflicted.
c). The nature of the injuries caused.
d). The opportunity available which the accused gets.
47. In the instant case, MLC Ex.PW6/A reveals that all injuries which were sustained by the injured were simple in nature. These injuries were caused by knife. The nature of the injuries is indicative of the fact that injured did not lose his consciousness. The intention of the accused could not be gathered to cause death of the injured. Therefore, it is apparent that the prosecution has clearly failed to establish from evidence of the expert witness, namely, the doctors that the injuries were of grievous nature or dangerous to life or that from the injuries itself the intention could be inferred or gathered that both the accused had intention of doing away with the life of the injured person. If the accused would have had the intention of killing the injured with knife, the injuries would not have been incise wounds or simple in nature.
48. Since the charges were framed against both the accused U/S 307/34 & U/S 341/34 of IPC and charge under Section 25 & 27 of the Arms Act was also framed against the accused Salman @ Sonu. The Ld. Counsel for the complainant has relied upon the judgment in case titled as Sunil Kumar Vs. State (NCT of Delhi) 2016 (2) JCC 1406. But, the facts of the said case were totally different from the facts of the present case. As in the said case, the grievous hurts were caused to the injured. Whereas, in the case in hand, the injuries suffered by the injured are simple in nature and in view of dis-
FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 60/63STATE VS NAEEM & ANOTHER similarities in the facts and circumstances, the ratio decidendi of the said judgment relied upon by the Ld. Counsel for the complainant cannot be applied to the case in hand and both the accused cannot be convicted under Section 307/34 of IPC.
49. Since, their lordship of Hon'ble High Court of Delhi in case titled as Manoj Kumar Vs. State Crl. A. No. 749 of 2002 & Crl.A.No. 697 of 2002 was pleased to hold that "Voluntarily causing hurt by means of an instrument used as a weapon of offence which results in a simple injury is an offence punishable under Section 324 IPC. If the hurt is grievous and the weapon is dangerous the offence, being of a higher degree of culpability, is one punishable under Section 326 IPC. An act which is done with knowledge or intention that it is likely to cause death, is an offence of attempt to murder and is punishable under Section 307 IPC. The line of demarcation between an offence punishable under Section 326 IPC and the one punishable under Section 307 IPC is that to fall within Section 307 IPC, the act must be done with such mens rea as would have constituted the act of murder if death had occurred. Shortly stated, in an attempt to commit murder, all the elements of murder exist, except the fact of death".
50. Thus, from the injuries suffered by Mahesh, it is clear that injuries were incised wounds and same were simple in nature. No doubt that charge has been framed U/S 307/34 of IPC against both the accused. But, for convicting the accused U/S 307/34 of IPC and we have to see the intention & knowledge of the accused of causing injuries to the victim and since in the case in hand, it is proved on record that injuries on the person of the complainant have been caused with the knife and knife has also been recovered from the room of the house of the accused Salman Khan @ Sonu at the instance of the accused Salman and as per the report of FSL FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 61/63 STATE VS NAEEM & ANOTHER Ex.PW15/A, the blood is also found on the knife Ex.P1. No doubt that grouping of blood on the belt could not be done, blood as the belt Ex.P2 is also not found nor it is sent to the FSL, but, as in the case in hand from the unimpeached testimony of this complainant(PW2), it is proved on record that at the time of the commission, the accused Naeem had caught to Mahesh and accused Salman had caused 06 incised wound on the person of the complainant/injured with knife. But, as nature of injuries are found to be simple. So, in the considered opinion of this court, it cannot be held that both the accused were having common intention to kill to the complainant. Had there been any such intention to kill to the complainant/injured, then, the force in giving the knife blows on the person could be more, but, as injuries remained incised and not stab wounds, which manifests that mensrea to commit the offence under Section 307/34 of IPC cannot be attributed to both the accused. Since, the injuries suffered by the complainant are simple in nature. It is proved on record that same injuries were caused with knife. So, I am inclined to hold that no offence within the meaning of Section 307/34 of IPC against the accused is made out. But, as the accused Naeem had caught to Mahesh and accused Salman had caused 06 incised on the person of Mahesh with knife. So, I am inclined to hold that both the accused in furtherance of their common intention had committed the offence punishable under Section 324/34 of IPC. So, I hold both the accused Naeem & Salman Khan @ Sonu guilty under Section 324/34 of IPC.
51. Since, in the case in hand, the complainant has alleged that when on the date and time of the occurrence, he was caught by accused Naeem and accused Salman gave knife blows on his person and testimony of the complainant Mahesh remained consistent, cogent, reliable and unimpeached and I have no ground to disbelieve the testimony of this complainant FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 62/63 STATE VS NAEEM & ANOTHER (PW2), so, I am inclined to hold that both the accused in furtherance of their common intention had wrongfully restrained to the complainant, so, both the accused are held guilty under Section 341/34 of IPC.
52. Cumulative effect of the above discussions is that since the prosecution has successfully proved on the record that both the accused in furtherance of their common intention have committed the offences punishable under Section 324/34 & 341/34 of IPC. Therefore, both the accused Naeem & Salman Khan @ Sonu are held guilty U/S 324/34 & 341/34 of IPC and they are convicted thereunder. Since, on the date and time of the occurrence, this accused Salman Khan @ Sonu was in possession of the knife Ex.P1 and he has caused 06 incise wounds injuries on the person of Mahesh with the same knife. So, I also hold that accused Salman Khan @ Sonu guilty under Section 25 of Arms Act for possessing the knife and using the same knife under Section 27 of Arms Act and Salman Khan @ Sonu is convicted thereunder.
53. The case properties of the present case are ordered to be disposed of as per law after expiry of the statutory period of filing the appeal. Digitally signed PAWAN by PAWAN KUMAR MATTO KUMAR Date:
MATTO 2018.04.16
16:19:32 +0530
Announced in the open court (PAWAN KUMAR MATTO)
today i.e. on 13.04.2018 Special Judge (NDPS)
Additional Sessions Judge(N-W)
` 13.04.2018
FIR No.724/14 New SC No. 52388/2016 P.S. Sultan Puri Page No. 63/63