Delhi District Court
State vs . Pankaj And Others 1. Sunil Shetty on 1 July, 2019
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST02) , DELHI.
Sessions Case No. 191/2018
Assigned to Sessions on 06.04.2018
FIR No. 02/2018
Police Station Nihal Vihar
Under Section U/S 307/34 IPC
Charged Under Section U/S 307/34 IPC and U/S 25 Arms Act
State Vs. Pankaj and others 1. Sunil Shetty
s/o. Sh. Avdesh,
r/o. G52/4, Laxmi Park,
Nangloi, Delhi.
2. Sudhir
s/o. Sh. Kushal Pal,
r/o. G129, Laxmi Park,
Nangloi, Delhi.
Arguments heard on 04.06.2019
Date of Judgment 01.07.2019
Final Order Acquitted
JUDGMENT:
1. The brief facts of the present case are that on 01.01.2018 DD no. 9B PS Nihal Vihar was recorded on the information received from PCR that in the backside of Shiv Ram Park, House no. E3/640, Peer Baba one person has been S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 1 of 15 stepped with knife. Said DD was marked to ASI Anil Kumar through telephone, who reached at the spot but neither any eye witness nor any person was found there and on inquiry it was told that injured has been taken to hospital. In the meantime, DD no. 11B was also marked to ASI Anil Kumar and he alongwith one constable went to Satyabhama Hospital, Nangloi and collected MLC no. 1755/17 regarding injured Rohit Tiwari, s/o. Sh. Tribhuvan Tiwari, r/o. E3/66, Shiv Ram Park, aged about 24 years and in the column of alleged history Doctor has written "alleged H/O hit by unknown person grabbing from back at Peer Baba Gym" and the opinion qua the nature of injury was dangerous and patient was declared unfit for statement. Doctor has also handed over exhibits in the sealed pulanda on which Rohit IP no. 25318/18, 01.01.2018, sealed with the seal of SBH, which IO seized vide seizure memo Ex. PW9/A. Thereafter, ASI Anil Kumar alongwith constable again came back to the spot and inquired about any eye witness but of no avail and the DD no. 9B was kept pending. Thereafter ASI Anil Kumar again went to Satyabhama hospital, Nangloi and inquired from the doctor about the condition of the patient Rohit Tiwari and the doctor has declared patient "fit for statement". Thereafter, ASI Anil Kumar recorded statement of injured Rohit Tiwari and again reached at the spot and called the Mobile Crime Team of outer district, who inspected and photographed the scene. Thereafter, IO prepared rukka on the statement of injured Rohit Tiwari u/s. 307/34 IPC and sent to the Duty Officer for registration of the FIR.
2. After registration of the FIR copy of the FIR and original rukka was handed over to constable Jai Prakash with the direction to hand over the same to S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 2 of 15 ASI Anil Kumar for further investigation. Thereafter, IO recorded statement of witnesses and conducted further investigation and prepared site plan at the instance of complainant. Thereafter, on 01.01.2018 IO arrested accused Sunil Shetty and Sudhir in the present case. On 02.01.2018 IO also got recovered the weapon of offence i.e. knife at the instance of accused Sunil Shetty from the courtyard of his house. Thereafter exhibits were deposited in the FSL, Rohini and case property was also deposited in the mallkhana of the concerned PS. Thereafter, IO recorded statement of the witnesses u/s. 161 Cr.PC, prepared the challan, filed the same in the court for judicial verdict.
3. After making the compliance of Section 207208 Cr.PC as offence u/s. 307 IPC was exclusively triable by court of session, case was committed to this court through Ld. District and Sessions Judge on 06.04.2018 and after hearing arguments on charge, separate charge was framed against accused Sunil Shetty and Sudhir u/s. 307/34 IPC and separate charge u/s. 25 Arms Act against accused Sunil Shetty to which both the accused persons have pleaded not guilty and claimed trial. Thereafter, the case was proceeded for recording of the evidence of the prosecution. In order to prove charge prosecution examined in as much as eleven witnesses out of total thirteen witnesses cited by the IO. Out of all the eleven witnesses examined by prosecution, PW3 to PW5 are the eye witnesses including the injured Rohit Tiwari to prove the charge against both the accused persons.
4. I have perused the evidence of complainant PW3 Rohit Tiwari and other two eye witnesses i.e. PW4 and PW5. All these three witnesses have not S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 3 of 15 supported the prosecution case and Ld. Defence Counsel has also requested to close the persecution evidence. However, Ld. State Counsel requested to call the remaining witnesses. In view of the testimony of PW3 to PW5 prosecution evidence was closed and the request of Ld. State Counsel to call remaining witnesses was declined.
5. The statement of both the accused persons u/s. 313 Cr.PC was recorded and both the accused persons claimed innocence and stated that they have been falsely implicated in this case by the IO. Accused Sunil Shetty have also stated that IO has planted knife allegedly recovered from his house at his instance to solve the prosecution case.
6. Today, I have heard arguments from both sides and have perused the evidence led by prosecution in support of charge against both the accused persons.
7. Before proceeding further, the relevant testimony of the prosecution witnesses are as under:
(i) PW1 is HC Pramod Kumar, who has deposed as under : On 01.01.2018, I was posted at PS Nihal Vihar as DD Writer and my duty hour was from 12 Night to 8 AM. On that day, at about 12:47 AM, I received a call from wireless operator that a boy has been stabbed with knife in a quarrel at H. No. E3/240, Shiv Ram Park, Behind Peer Baba. The caller told to keep his name secret. Mobile number of caller was 9810592750. I made entry in DD register regarding the aforesaid call at S. No. 9B. Today I have brought original DD register. The excerpt of the said entry is on judicial file and same is Ex. PW1/A (OSR). The call was marked to ASI Anil for necessary action.
(ii) PW2 is HC Gopal Yadav, who has deposed as under : On 01.01.2018, I was posted as Duty officer at PS Nihal Vihar from S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 4 of 15 4 PM to 12 Night. On that day ASI Anil Kumar handed over to me a rukka in the police station for registration of FIR. On the basis of the said rukka I registered the present FIR Ex. PW2/A (OSR) which bears my signatures at point A. I endorsement on the rukka Ex. PW2/B. I handed over the copy of FIR and original rukka to Ct. Jai Prakash to be handed over to ASI Anil Kumar. I also issued a certificate U/s 65 B Indian Evidence Act which is Ex. PW2/C which bears my signatures at point A.
(iii) PW3 is Rohit Tiwari, complainant, who has deposed as under : On 31.12.2017, at about 8 to 8:30 PM, I had gone to Peer Baba Chowk to eat eggs. Then a quarrel took place between accused persons and some other persons. My friends Arun Sharma and Dheeraj Kumar who were with me at that time intervened to pacify the parties. Later on, I also intervened. Matter was pacified.
Thereafter, I went to my house. After sometime my friend Arun and Dheeraj called me at Fit and Fast gym. I went there and was standing with them on the road. My friend Manish and Jitender also reached there. Jitender had purchased a new car and given a party at his office on Gym Road. After having food Jitender had left for his house. Then I, Manish, Arun and Dheeraj were standing in front of the office of Jitender. We were talking to each other and it was about 10:30 / 11 PM. I was facing towards other friends. And around 2025 people were seen coming from behind me. On seeing them Dheeraj and Arun ran away from there. I took key of my bike from my pocket and turned behind and saw that those people had come near me. As soon as they came near me on the spot they pushed me from the bike and fell on the ground. They were having sticks (danda) in their hands and started beating Manish and they also started beating me. Some of them started giving beatings to me and remaining gave beating to Manish. They kept on beating me for about 5 minutes. Somehow I managed to flee away and ran towards a gali. While I was running away to save myself I fell down in the gali. Then again 67 of those persons came to me and they gave further beating to me and one of them gave knife blow on my back. I could not see the face of the person who gave knife blow to me as I knelt down to save myself and then I was stabbed from behind. Jitender had reached at the spot and took me to Satyabhama Hospital, Nangloi.
Police came at the hospital. I was inquired by the police and my statement was recorded. Police took my signatures on some blank papers. I do not know the names of the accused persons. I cannot identify the accused persons who had inflicted knife injury to me.
My statement is Ex. PW3/A which bears my signatures at point A. Police obtained my signatures on blank papers. Person who gave beatings to me are not present in the court today.
At this stage, Ld. Addl. PP seeks the permission to cross examine the witness as he is resiling from his previous statement. Even despite cross examination no incriminating evidence have come on record.
S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 5 of 15(iv) PW4 is Shanti Mishra, who has deposed as under : I am residing on the above mentioned address. In January, 2018 I was doing the work of Lathe "Kharad" at my house. I have installed three CCTV camera outside my house for safety of my house. I do not remember the exact date however, on the first day of some month which I do not remember, of this year, police officers came. They asked me to show the footage of CCTV Camera installed outside my house. Some blood stains were lying outside my house. Police officers checked the footage. In that footage a quarrel was going on. Police officer took the said footage from the DVR through pen drive. They took the same 23 times.
Thereafter, they prepared CD. Police officers asked for the DVR but I could not provide the same as I was not having any other DVR and same was required for safety of my house. By that time, the CCTV footage stored in the DVR was not tempered with in any manner. IO had prepared a certificate regarding taking of CCTV Footage. I had signed the said document. The said certificate is Ex. PW4/A which bears my signatures at point A. The seizure memo of CD is Ex. PW4/B. At this stage, two CD/ DVD available on judicial record are taken out and both the CD/ DVD are played in the Court. After seeing them witness states that this is the same footage which was seized by the IO. The CD / DVD are Ex. PX1 (Colly). But in his crossexamination this witness has stated that the said footage was blurred and the faces of persons who were appearing in the footage are not clear.
(v) PW5 is Jitender, who has deposed as under : I am residing at above said address and working in a private Finance company. On 31.12.2017, at about 11:30 PM, someone informed me that someone had caused injuries to my friend Rohit who was sitting beside the wall. I went to the spot and found that Rohit was sitting in injured condition. His body was bleeding. He was unconscious at that time. I took him to Satya Bhama Hospital. I got him admitted in the hospital and informed his family members. Once police had called me in the police station and my statement was recorded. I did not see any person in the custody of police and no body was shown to me as assailants.
At this stage, Ld. Addl. PP seeks the permission to cross examine the witness as he is resiling from his previous statement recorded U/s 161 Cr.PC. Permission granted. Even despite cross examination by Ld. State Counsel this witness has denied the suggestion put to him that he has seen both the accused person in police station or that they were in police custody.
(vi) PW6 is Manish, who has deposed as under : I am residing at the above said address and working in a leath factory. On 31.12.2017, at about 11 PM. My friend Rohit met me near Peer Baba Chowk and asked me to drop him at gym. I along with Rohit went to gym by my motor cycle and I dropped him there. Thereafter, I went to my office. On next morning I came to know that a quarrel had taken place between Rohit and some S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 6 of 15 other persons and in that incident Rohit had sustained stab injury.
I had also come to know that a party was organized in the office of one Jitender which was attended by Jitender, Mintu and one another person whose name I do not remember now. Police had called me and had shown a CD but I could not identify the persons who were appearing in the CD as assailants. Police recorded my statement.
(vii) PW7 is Ct. Rakesh, who has deposed as under : On 19.02.2018 I was posted as PS Nihal Vihar as Constable. On that day, on the instructions of IO, ASI Anil Kumar, I collected the 05 sealed exhibit and one sample seal from MHC (M) for the purpose of depositing it to the FSL Rohini vide RC No. 26/21/18. I went to FSL Rohini and deposited the aforesaid exhibits and sample seal in FSL Rohini and obtained the receipt of the same and returned to the PS. I handed over the receipt of deposit of IO. The case property remained intact and was not tempered till it remain in my possession.
(viii) PW8 is ASI Satbir Singh, who has deposed as under : On 01.01.2018 I was posted as Incharge Mobile Crime Team outer Distt. On that day I received a call from Control Room that some body has been stabbed at E3/238 Shiv Ram Park Nangloi. On the receipt of said call I alongwith HC Jaswant and Ct. Sukram Pal went to the scene of crime. There I met IO the case. I inspected the spot and saw that there was lot of blood spread in the Gali in front of house No. E238. There was blood on the call. I came to know that the injured has already been removed to the hospital. The spot was photographed by HC Jaswant by digital camera. I prepared my report Ex PW8/A, bearing my signature at point A.
(ix) PW9 is ASI Anil Kumar, IO, who has deposed as under : On 31.12.2017, I was posted at PS Nihal Vihar. On that day, after receiving DD No.9B, I alongwith Ct. Jai Prakash reached at the spot i.e. EBlock, Shivram Park, Nangloi but due to fog, we could not locate the said place mentioned in the DD. Thereafter, facts of DD No. 11B was brought to my notice on telephone that injured in the present incident was admitted in Satyabhama Hospital, Nangoi. Thereafter, we reached there and found one Rohit admitted in hospital in injured condition. Doctor declared him unfit for statement and doctor handed over two sealed pulandas and one sample seal sealed with the seal of SBH and I took the same into possession vide memo Ex.PW9/A which bears my signatures at point A. Ct. Jai Prakash signed the same at point B. On 01.01.2018, I went to Satyabhama Hospital and doctor declared the injured Rohit to fit for statement and thereafter I recorded his statement which is already Ex.PW3/A and the same was duly attested by me at point B and injured signed the same at point A. Thereafter, I prepared rukka Ex.PW9/B which bears my signatures at point A and was sent to PS through Ct. Jai Prakash for the registration of the case. Thereafter, I reached at the spot from hospital and thereafter, Ct. Jai Prakash handed over original rukka and copy of FIR to me. I recorded the statement of the witnesses U/S 161 Cr.P.C. I lifted blood stained S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 7 of 15 earth control from the spot and sealed the same in a pulanda with the seal of AK and was taken into possession vide seizure memo Ex.PW9/C which bears my signatures at point A and Ct. Jai Prakash had signed the same at point B. I also collected one CD from landlord Shanti Prasad regarding CCTV footage of the day of incident and the same was taken into vide seizure memo already Ex.PW 4/B which bears my signatures at point B. I also called crime team at the spot who inspected the spot and crime team photographer took photographs from different angles and Incharge crime team had handed over his report to me. I recorded the statement of crime team officials U/S 161 Cr.P.C. Thereafter, I came back to PS. Case property was deposited by me in the Malkhana time to time. Thereafter, I searched for accused persons and on 01.01.2018, accused Sunil Setty and Sudhir both present in the Court today ( Witness correctly identified both accused persons) were arrested by me in this case. Arrest memo of accused Sunil Setty is Ex.PW9/D and arrest memo of accused Sudhir is Ex.PW9/E which bears my signatures at point A and of Ct. Jai Prakash at point B. Their personal search was also taken by me vide memo Ex.PW9/F and Ex.PW9/G respectively which bears my signatures at point A and of Ct. Jai Prakash at point B. Both the accused persons made their disclosure statement and the same are Ex.PW9/H and Ex.PW9/J which bears my signatures at point A and of Ct. Jai Prakash at point B. Due to late hours, recovery could not be effected on that day. Thereafter, both the accused persons were brought to the PS and kept in lockup.
Next day, i.e. on 02.01.2018, accused Sunil Setty as per his disclosure statement got recovered one knife from inside the courtyard of house no. G129, Laxmi Park, Nangloi, Delhi and I prepared the sketch of the same Ex.PW9/K which bears my signatures at point A and of Ct. Jai Prakash at point B. Thereafter, knife was sealed by me in a pulanda with the seal of AK and was taken into possession vide seizure memo Ex.PW9/L which bears my signatures at point A and of Ct. Jai Prakash at point B. I prepared site plan of the place of recovery Ex.PW9/M which bears my signatures at point A and of Ct. Jai Prakash at point B. Thereafter, both the accused persons were produced in the Court of Ld MM and sent to JC. Case property i.e. sealed pulanda containing knife was deposited by me in the Malkhana. During the course of investigation, I prepared site plan of the spot at the instance of the complainant. Same is Ex.PW9/N which bears my signatures at point A. During the course of investigation, case property was sent to FSL Rohini. I recorded the statement of witnesses time to time. I obtained opinion on the MLC and also obtained subsequent opinion from the doctor regarding weapon of offense. Thereafter, I completed the investigation, prepared charge sheet and the same was filed in the Court. During the course of trial, FSL/DNA result was conducted and the report was filed in the Court. The same is Ex.PW9/O (Colly 2 sheets). This witness has also identified the knife as Ex. P1.
(x) PW10 is Ct. Jai Prakash, who has deposed as under : On 31.12.2017, I was posted at PS Nihal Vihar as Ct. On that day, after receiving DD No.9B to IO, I alongwith ASO Anil reached at the spot i.e. EBlock, Shivram Park, Nangloi but due to fog, we could not locate the said S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 8 of 15 place mentioned in the DD. Thereafter, facts of DD No. 11B was brought to the notice of IO on telephone that injured in the present incident was admitted in Satyabhama Hospital, Nangloi. Thereafter, we reached there and found one Rohit admitted in hospital in injured condition. Doctor declared him unfit for statement and doctor handed over two sealed pulandas and one sample seal sealed with the seal of SBH and ASI Anil took the same into possession vide memo Ex.PW9/A which bears my signatures at point B. On 01.01.2018, we went to Satyabhama Hospital and doctor declared the injured Rohit to fit for statement and thereafter IO recorded his statement which is already Ex.PW3/A and the same was duly attested by him at point B and injured signed the same at point A. Thereafter, IO prepared rukka Ex.PW 9/B which was signed by IO at point A and was sent to PS through me for the registration of the case. Thereafter, I reached at P.S and handed over the rukka to Duty officer on the basis of which present FIR was registered. Thereafter, I reached at the spot and handed over original rukka and copy of FIR to IO. IO recorded the statement of the witnesses U/S 161 Cr.P.C. IO lifted blood stained earth control from the spot and sealed the same in a pulanda with the seal of AK and was taken into possession vide seizure memo Ex.PW9/C which bears my signatures at point B. IO also collected one CD from landlord Shanti Prasad regarding CCTV footage of the day of incident and the same was taken into vide seizure memo already Ex.PW4/B which bears my signatures at point B. IO also called crime team at the spot who inspected the spot and crime team photographer took photographs from different angles and Incharge crime team had handed over his report to IO. IO recorded the statement of crime team officials U/S 161 Cr.P.C. Thereafter, IO came back to PS. Case property was deposited by IO in the Malkhana time to time. Thereafter, we searched for accused persons and on 01.01.2018, accused Sunil Setty and Sudhir both present in the Court today (Witness correctly identified both accused persons) were arrested by IO in this case from their houses. Arrest memo of accused Sunil Setty is already Ex.PW9/D and arrest memo of accused Sudhir is already Ex.PW9/E which bears my signatures at point B. Their personal search was also taken by IO vide memo already Ex.PW9/F and Ex.PW9/G respectively which bears my signatures at point B. Both the accused persons made their disclosure statements and the same are already Ex.PW9/H and Ex.PW9/J which bears my signatures at point B and of Ct. Jai Prakash at point B. Due to late hours, recovery could not be effected on that day. Thereafter, both the accused persons were brought to the PS and kept in lockup. Next day, i.e. on 02.01.2018, accused Sunil Setty as per his disclosure statement got recovered one knife from inside the courtyard of house no. G129, Laxmi Park, Nangloi, Delhi and IO prepared the sketch of the same already Ex.PW9/K which bears my signatures at point B. Thereafter, knife was sealed by IO in a pulanda with the seal of AK and was taken into possession vide seizure memo already Ex.PW9/L which bears my signatures at point B. IO prepared site plan of the place of recovery already Ex.PW9/M which bears my signatures at point B. Thereafter, both the accused persons were produced in the Court of Ld MM and sent to JC. Case property i.e. sealed pulanda containing knife was deposited by IO in the Malkhana. During the course of investigation, S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 9 of 15 IO prepared site plan of the spot at the instance of the complainant. IO recorded my statement in this case.
I can identify knife if shown to me.
At this stage, MHC(M) produced one parcel no. 4 sealed with the seal of FSL. Same is opened after breaking open the seal and same is found containing one knife with cover.
Same is shown to the witness and witness after seeing the same, states that it was the same knife which was got recovered from the accused. Same is now Ex.P1.
(xi) PW11 is HC Jaswant, who has deposed as under : On 01.01.2018, I was posted in the Mobile Crime Team as photographer. On that day, I alongwith ASI Satbir, Ct. Sukhram Pal and other members of Mobile Crime Team reached at the spot i.e in front of house no. F 3/238, Shiv Ram Park, Nangloi where we inspected the spot and I took 07 photographs of the crime scene from different angles from my digital camera. The photographs are Ex.PW11/A1 to Ex.PW11/A7. IO recorded my statement.
8. I have heard Ld. State Counsel and Ld. Counsel for the accused persons. I have given thoughtful consideration to the evidence and the arguments advanced from both the sides. It is argued on behalf of State that both the material witnesses of the prosecution have not supported the prosecution case as they have been won over by the defence though police witnesses has supported the prosecution version. Hence, it is argued that in view of the testimony of prosecution witnesses appropriate order be passed.
9. Per contra, it is argued on behalf of accused persons that accused persons have been falsely implicated in this case. It is also argued that none of the public witnesses including the injured have deposed in any incriminating fact against them. Even none of the public witnesses had identified in the dock. It is also argued that the knife, Ex. P1 is planted by the IO in connivance with other police officials to falsely implicated the accused persons in this case. It is also argued that the alleged recovery of knife, Ex. P1 was not affected from the house of S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 10 of 15 accused Sunil Shetty at his instance that is why no disclosure statement to this effect was recorded by the IO. Hence, the knife is planted by calling the accused persons in the P.S. It is also argued that both the accused persons have called in the P.S. and falsely arrested in this case to work out the present case. Hence, it is prayed that both the accused persons be acquitted.
10. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. Emphasis supplied upon case titled as Sadhu Singh Vs State of Punjab 1997 (3) Crimes
55.
11. Prosecution examined total 11 witnesses out of which PW3, PW4, PW5 and PW6 are star/eye witnesses to prove its case.
12. Both the accused persons were charged for having committed offence u/sec.307/34 IPC and accused Sunil Shetty was also charged for having committed offences u/sec. 25 of Arms Act. To prove the said charge PW3 Rohit Tiwari, injured/complainant is the only star witness to prove the said charge as he himself has sustained injury from the knife. I have gone through the testimony of this witness including cross examination done by Ld. State S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 11 of 15 Counsel. This witness has supported the prosecution case to the extent that incident of attacking by mob was done by 2025 persons and in order to save himself from the clutches of said persons he tried to ran away and fell down and during that process 67 persons of the said mob again over powered him gave beatings and in the same transaction one of the assailant stabbed him from knife on his back from backside. But this witness has not identified any of the accused persons as the person who gave knife blow or participated in the said mob. This witness has categorically deposed that he knew accused Sudhir and Sunil only by their faces and not by their names. He has denied the suggestion of Ld. Addl. PP for the state that there were the persons who attacked on him or that he knew them prior to the incident. Even this witness has denied the suggestion of Ld. State Counsel that accused Sudhir and two other boys caught hold him and accused Sunil repeatedly gave knife blow on his back, waist and forearm. Even during cross examination by Ld. State Counsel specific question was put to the witness that both the accused persons are the same persons who committed assault on him but this witness has denied the said suggestion. Therefore, the testimony of this witness is of no use for the prosecution to prove charge against both the accused persons. Injured have not deposed any incriminating fact against both the accused persons.
13. CCTV footage are the another piece of evidence to prove the role of both the accused persons in the commission of the crime. To this prosecution has examined PW4 Shanti Mishra at whose house CCTV camera was installed outside the premises for the safety purpose. This witness has categorical deposed S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 12 of 15 that police checked the CCTV footage and in the said footage quarrel was going on and police took the said footage from the DVR through pendrive and they took the same 23 times. Thereafter, police prepared CD and police officer also asked for DVR but he could not provide the same as he was not having any other DVR. The said CCTV footage were seized by IO vide seizure memo Ex. PW4/A and when the said CD was played in the open court, the footage were blurred and the faces of persons appearing in the footage were not clear. Hence, since the footage were not clear in the said CD even this piece of evidence is of no use for the prosecution.
14. Another piece of evidence to prove the charge against the accused person is the blood strained knife as the FSL result in respect of said knife is positive. As per the case of prosecution the said knife was recovered by PW9 ASI Anil Kumar, IO on 02.01.2018 at the instance of accused Sunil Shetty from the courtyard of his house no. G129, Laxmi Park, Nangloi, Delhi in view of the disclosure statement. But as argued by defence there is nothing mentioned in disclosure statement Ex. PW9/H about the hiding of knife in the courtyard of the house of accused. Even no public witness is cited by the IO to prove the factum of recovery from the house of accused. Since the factum of recovery of knife from the house of accused at his instance is not proved beyond reasonable doubt, the FSL report concluding that DNA profile generated from blood sample of the victim was similar with the DNA profile generated from knife i.e. Ex. P1 is of no use for the prosecution. It cannot be said that simply the DNA profile from the Ex.P1, knife is matching with the blood sample of the injured that accused S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 13 of 15 persons caused injury to the complainant. I fail to understand when the knife was allegedly recovered from the courtyard of house of accused Sunil Shetty at his instance why IO has not recorded the said fact in the disclosure statement, therefore, accused is entitled for benefit of doubt to the factum of recovery of knife at his instance.
15. Besides PW3 and PW4 prosecution has also examined PW5 Jitender and PW6 Manish to support the prosecution case. But both these witnesses have not supported the prosecution version. Despite cross examination by Ld. State Counsel PW5 Jitender has categorically deposed that he had not seen any person in the custody of police and also nobody was shown to him as assailant. Even he denied the suggestion of Ld. State Counsel that he saw two boys in police custody to whom he knew previously as Sunil and Sudhir. PW6 Manish has deposed that he could not identify the person in the CD played in the police station as assailant in the present case. Besides PW3 to 6, other witnesses examined are the police witnesses. It is settled position of law when the star witnesses including the injured himself have not supported the prosecution version it is unsafe to convict the accused by relying on the testimony of police witnesses.
16. In view of the above discussion, this court is of the considered view that the prosecution has utterly failed to prove its case so as to complete the chain much less to prove the same beyond the pale of reasonable doubt. Hence, both the accused persons are entitled for benefit of doubt. Resultantly, both the accused persons are entitled to be acquitted. Hence, order accordingly.
S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 14 of 1517. In view of the statutory requirement of section 437A Cr.P.C. both the accused persons were directed to furnish bail bond in the sum of Rs.10,000/ with one surety each of like amount to the satisfaction of the court, for a period of six months, to appear before the appellate court, if so required. Bond already furnished which will remain in force for a period of six months.
18. File be consigned to record room after due compliance.
Digitally signed by POORAN CHANDPOORAN Date:
CHAND ANNOUNCED IN THE OPEN 2019.07.05 13:11:53 +0530 COURT ON 01.07.2019 (POORAN CHAND) ADDI. SESSIONS JUDGE02 (WEST):DELHI S.C. No. 191/2018 State Vs. Sunil Shetty and another Page 15 of 15