Delhi District Court
State vs . on 1 December, 2009
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
vs.
1. Shahzad @ Wasim
S/o Abdul Hamid
R/o E-5/14, Nand Nagri, Delhi.
2. Kayum @ Shanu
S/o Mohd Yaqub
R/o E-1/71, Nand Nagri, Delhi
3. Shah Nawaz @ Janu
S/o Manzoor Ahmed
R/o 4471, Gali No.6, Ajit Nagar
PS Gandhi Nagar, Delhi.
4. Nadeem
S/o Lutfi
R/o E-5/27, Nand Nagri, Delhi
FIR No. : 65/2003
P.S. : Nand Nagri
U/s : 302/307/147/148/149/
120-B/34 IPC
Sessions Case No. : 32/2008
2
Date of Institution of case : 15.7.2003
Date on which reserved for Judgment : 18.11.2009
Date of delivery of Judgment : 01.12.2009
JUDGMENT:
On 12.2.2003 PCR operator came at Police Station Nand Nagri and informed that a call has been received that somebody had been stabbed at E-1/383 Nand Nagri. DD No.12-A was registered on the basis of this information and was sent to SI Sanjay for investigation through Constable Desh Pal. SI Sanjay on receipt of DD no.12-A, along with Constable Desh Pal reached the spot i.e E-1/383 Nand Nagri where he came to know that two injured had been removed to GTB Hospital. No eye witness was available at the spot. SI Sanjay then along with Const. Desh Pal went to GTB Hospital where he obtained the MLCs of injured Pradeep @ Sonu and Jitender. Both the injured had been declared unfit for statement. Many efforts were made to trace the eye witness of 3 the incident and also the spot of incident but same could not be traced. Hence, on the basis of MLC, DD entry No.12-A and the circumstances, a case for the offence punishable under section 307 IPC was got registered through Const. Desh Pal.
During the course of investigation, SI Sanjay seized the blood stained clothes of the injured which were removed by the doctor. Statement of eye witness was recorded, spot was got photographed, site plan was prepared, crime team was called the spot was got inspected, blood stained mud and stones were seized from the spot. During the course of investigation, vide DD No.72-B dated 12.2.2003, SI Sanjay received information that injured Pradeep @ Sonu had succumbed to his injuries and sections 302/34 IPC was added. SI Sanjay went to mourtary, dead body was got identified by the relatives of the deceased, inquest proceedings were conducted, postmortem on the dead body of the deceased was got conducted, gauze blood preserved by 4 the doctor was seized by the IO and deposited in the malkhana.
On 16.3.2003 other injured Jitender was declared fit for statement by the doctor and his statement under section 161 Cr.PC was recorded wherein he disclosed that 4-5 months prior to 12.2.2003, an altercation had taken place between Pradeep @ Sonu (deceased) and accused Nadeem due to which Nadeem had a grudge against Sonu. On 12.2.2003, on the day of ID he along with Pradeep @ Sonu and Rajan at about 9.30-10.00 p.m were standing in the park in front of their house when accused Nadeem, his friend Shahzad @ Wasim, Soni, Jaanu and Shanu, came there and wished them ID. Shanu started talking to Rajan, Wasim and Sonu took him (Jitender) aside and started talking to him, Nadeem and Janu remained with Sonu (deceased) After sometime Naresh, brother of Rajan came there and took him along with him. After some time some altercation (tu-tu mai- 5 mai) took place between Nadeem and Sonu. One Dinesh who lives nearby came there and intervened between them and tried to pacify the matter but Nadeem was in an angry mood and he said to Sonu that " is bar ID mei bakra hum tumhari bali denge", during that course Wasim and Jaanu caught hold of Sonu (deceased) from both the sides, Soni took knife from Shanu and stabbed Sonu in his abdomen. When he (Jitender) tried to intervene and save Sonu, then Soni attacked him also with knife and ran away from the spot. He (Jitender) somehow brought injured Sonu in the gali from where they were taken to GTB hospital where Sonu expired.
During the course of investigation, SI Sanjay got obtained the photographs of the spot and collected the postmortem report of deceased Sonu. On 18.2.2003, SI Sanjay on the pointing out by public witness arrested accused Shahzad @ Wasim, Kayyum and Shanu, recorded their disclosure statements wherein the accused persons confessed 6 their guilt, pointed out the place of occurrence and disclosed that the knife used in the commission of offence was with Soni @ Kishan.
On 19.2.2003 accused Shahnawaz was arrested and on 26.2.2003 accused Nadeem was arrested on pointing out of public witness. They made their disclosure statements confessing their guilt and disclosed that knife used in commission of offence was with accused Soni. Accused Soni continued evading his arrest and on 10.3.2003 NBW's were obtained against accused Soni and on 15.3.2003 proceedings under section 82-83 Cr.PC were initiated against him. Thereafter on 20.3.2003 accused Soni surrendered before the Juvenile Court and on 21.3.2003 he was formally arrested and his Police Custody remand was taken, he made disclosure statement and stated that he could get recovered the knife used in commission of offence which he had thrown in the bushes behind Gagan Cinema. Search for the knife was made 7 there but knife could not be recovered. As accused Soni @ Kishan claimed himself to be Juvenile, his bony age was got determined. Exhibits were sent to FSL, considering the circumstances of the case sections 147/148/149/120-B were added in the case.
After completion of the investigation, charge sheet for the offence punishable U/s 302/307/147/148/149/120-B IPC was filed against the accused persons against accused Shahzad @ Wasim, Kayuum @ Shanu, Shahnawaz @ Jannu and Nadeem. Charge-sheet under the above said offence, against accused Soni @ Kishan was filed before the Juvenile Court as he was declared juvenile.
Ld. Magistrate after supplying the copies to the accused persons committed the case to the Sessions Court.
My Ld. Predecessor vide orders dated 22.08.2003 framed a charge for the offences punishable U/s 147/148/149/302/307 IPC against the accused persons. All 8 the accused persons pleaded not guilty to the charges and claimed trial.
In order to prove its case, the prosecution has examined as many as 27 witnesses.
The statement of the accused persons were recorded U/s 313 Cr.P.C. wherein all the accused persons have denied the allegations against them and alleged that they were falsely implicated in this case. They all stated that the witnesses have deposed falsely against them. They all stated that they were lifted and later on falsely implicated in this case. The accused persons preferred to lead defence evidence but did not examine any defence witness.
PW-1 Constable Jasbeer stated that on 12.2.2003 he was working as duty Constable at GTB Hospital and the doctor handed over to him a pullanda sealed with seal of hospital, of clothes of injured Jitender which he handed over to SI Sanjay Kumar of PS Nand Nagri and who 9 seized the same vide memo Ex. PW 1/A. He further stated that the said pullanda pertained to MLC No.357/2003.
PW-2 Jitender @ Jeeta was the eye witness to the incident. He stated that he was working as Lab Astt in Delhi University in Chemistry Department since two years prior to this incident. On 12.2.2003 at about 9.00 or 10.00 p.m he alongwith Sonu (since deceased) and Rajan were present in the park situated near his house and it was day of Bakri-ID. On that day Asif and Parvez had given them party on occasion of Bakri-ID, who were also residing in E-block, Nand Nagri. He further stated that they attended the party at about 3.00 or 3.30 p.m with them. From there he along with Sonu (since deceased) and Rajan had gone to GTB Hospital to see one person known to Rajan who was admitted there. It was about 5.30 p.m when they were returning from the hospital on two wheeler by which they had gone there. They saw police at Ambedkar Gate. As they were not wearing 10 helmet, they turned back and as they were crossing the road, they met with an accident with TSR and sustained injuries. He further stated that first aid was given to them by a doctor near masjid. From there they went in the lane and went to their house and parked the scooter there in the house of Rajan. It was at about 9.30 p.m or 10.00 p.m when they were standing in the gali, from the park accused Nadeem, Wasim, Soni (facing trial before Juvenile Court), Janu and Shanu called deceased Sonu and they all wished ID mubarak to Sonu and hugged them. Accused Shanu took Rajan aside and they talked to each other and thereafter accused Wasim and Shanu took him aside and told him that let Janu and Nadeem talk to each other. Sonu (deceased) was with accused Nadeem at that time. He further stated that thereafter accused Soni also went where Nadeem and Janu were standing with Sonu and after a short time he heard voice of "Jeeta" and he immediately turned back and saw that Sonu 11 was lying on the ground and he went to him and lifted him. Thereupon, accused Wasim also gave knife blow on his neck. This witness further stated that he immediately rushed with deceased towards the gali and all the accused persons namely Wasin, Nadeem, Soni, Janu and Shanu chased to kill them and he dropped Sonu in the lane and turned back and saw that all the accused persons had fled away from there. He further stated that Dinesh and Shehzad also witnessed the occurrence. He further stated that when he came back in the lane, he also became unconscious. This witness however stated that he did not know as to who had caused injuries to Sonu (deceased). He however identified all the accused persons except accused Soni (facing trial before Juvenile Court). He stated that he did not remember anything more about this case.
This witnesses was declared hostile by the Ld.Addl. PP and cross-examined at length. PW-2 admitted in 12 his cross-examination by the Ld.Addl.PP that during that time Dinesh had also come from the side of Sunder Nagri and he had told accused Wasim and Nadeem and their associates not to quarrel with each other and advised for a compromise. He (Dinesh) had extended his help to get the matter pacify to great extent. He also admitted the suggestion of the Ld.Addl.PP that Naresh brother of Rajan had also arrived in the park and called Rajan and took him along with him. PW- 2 however denied the suggestion of the Ld.Addl.PP that at the time of incident, sudden altercation had taken place between accused Nadeem and Janu with Sonu and Dinesh had tired to pacify the matter and all of sudden accused Soni caught hold of Sonu by his collar and Soni was pushed away by Dinesh. He also denied the suggestion of the Ld.Addl.PP that thereafter accused Soni asked to bring knife and accused Shanu gave knife to Soni which was kept by him (Shanu) and thereafter accused Wasim and Janu caught hold of Sonu from 13 both the sides and accused Nadeem stated that " is bar ID mei bakra nahe mila, hum tumhari bali denge." and in the mean time accused Soni stabbed with the knife in the abdomen of Sonu as a result of which he fell down. PW-2 further denied the suggestion of the Ld.Addl. PP that it was accused Soni who had caused injuries to him (PW-2). He also denied the suggestion of Addl.PP that they raised alarm and on which public persons gathered there and they were removed to GTB Hospital and admitted there.
PW-2 however admitted the fact that 4-5 months prior to the incident, quarrel had taken place between Sonu (deceased) with regard to a boy namely Pradeep with accused Nadeem and accused Nadeem had threatened to see him later on. But he denied the suggestion of the Ld.Addl.PP that since then accused Nadeem was having grudge against Sonu and in pursuance of this enmity, accused Soni, Wasim, Janu, Shanu and Nadeem had committed the murder of Sonu. He also 14 denied the suggestion of Ld.Addl. PP that as he (PW-2) was won over by the accused persons and he was deposing falsely.
PW-3 Constable Raj Kumar accompanied the IO in the investigation of this case and stated that on 18.2.2003 he was posted as Constable in PS Nand Nagri and accused Shahzad @ Wasim and Kayyum @ Shanu were joined in the investigation of this case. They were interrogated and they made disclosure statements Ex-PW3/A and PW-3/B respectively and in pursuance thereof, they pointed out the place of occurrence vide memo Ex. PW-3/C. He further stated that personal search of accused Shahnawaz @ Wasim and Kayyum @ Shanu was conducted vide memo Ex. PW 3/D and PW 3/E respectively and they were arrested vide memos Ex.PW-3/F and PW-3/G respectively. PW-3 further stated that on 19.2.2003 he again joined the investigation of this case with SI Sanjay Kumar and had gone in search of rest of the accused. Accused Shahnawaz @ Janu was arrested from Ajeet 15 Nagar, Gali No.6, House No.4471, he was interrogated and his disclosure statement Ex. PW3/H was recorded and he pointed out the place of occurrence vide memo Ex. PW 3/J, his personal search was conducted vide memo Ex. PW3/K and was arrested vide memo Ex. PW 3/L. PW-3 further stated that on 26.2.2003 he again joined the investigation of this case and and accused Nadeem was interrogated by SI Sanjay Kumar in the PS and he made disclosure statement Ex.PW3/M and pointed out the place of occurrence vide memo Ex. PW 3/N. He further stated that personal search of accused Nadeem was conducted vide memo Ex. PW-3/O and he was arrested vide memo Ex. PW 3/P. PW-4 Constable Hitender was also part of investigation team on 18.2.2003 and had joined investigation of his case and in his presence accused Shahzad @ Wasim and accused Kayyum @ Shanu were arrested and their personal search was conducted, their disclosure statements 16 were recorded. He duly proved the respective memos which were prepared in his presence and identified the accused persons correctly.
PW-5 Dushyant Goswami @ Rajan stated that he knew deceased Pradeep @ Sonu as he was his fast friend. He also knew Jitender @ Jite who was also his best friend and both of them were residing adjoining his house. He also knew Asif and Parvez as they were residents of his mohalla. PW-5 further deposed that it was on 12th day of month and it was Bakri-ID but he did not remember the exact month and year but it would be one year before, Parvez and Asif had invited him, Pradeep @ Sonu and Jitender @ Jite on occasion of Bakri-ID and he along with them had participated in the dawat at about 3.00 or 3.30 p.m at E-block, Shauchalya in front of dairy and thereafter they all went for walk for about one hour. Thereafter he alongwith Jitender @ Jite and Sonu went to GTB Hospital on two wheeler scooter to see his Jija 17 Bahadur Thapa who was admitted there on his scooter which was being driven by Jite, he was sitting in middle and Sonu was sitting behind. He further stated that they were not wearing helmets and on seeing the police they turned back and reached near the gate of the school and met with an accident and from there they went to a clinic near E-2, Block where first aid was given to them. PW-5 further stated that at about 9.00 or 9.15 p.m when they were walking along with Sonu and Jite, then they all went in park where accused Nadeem, Shehzad @ Wasim, Soni, Janu and Shanu came there and hugged them and congratulated them ID. He further stated that accused Shanu took him aside and then he saw Dinesh coming from the side of Sunder Nagri. In the mean his brother Naresh Giri also came there and he took him to his house. He further stated that when Shanu took him aside no conversation took place between then. In the mean time Naresh Giri had taken him to his house. He further 18 stated that after 5-6 minutes he saw Jitender @ Jite in injured condition in front of his house and on his asking as to what had happened, Jitender told him that Nadeem had stated to him (Jitender) that he did not perform qurbani of bakra and as such he (Nadeem) was performing the qurbani of him. He however stated that Jitender did not tell him as to how he had sustained injuries. He further stated that public persons took Jitender to hospital and he became perplexed. This witness however stated that he did not know as to how Sonu had sustained injuries and who had caused injuries to him. He also denied that he did not overhear any altercation between Sonu (deceased) and any other accused persons because he was taken aside by accused Shanu. PW-5 however stated that one month prior to this incident, Pradeep had gone to fetch milk from a booth where he was beaten up by accused Nadeem and at that time Sonu had also reached there to intervene and had told Nadeem that Pradeep was his 19 nephew and had warned Nadeem not to touch Pradeep further. Thereafter Nadeem had threatened Sonu to see him and had gone away from there. PW-5 further stated that he did not know anything else about this case. This witness was also declared hostile by the prosecution and cross-examined. However he denied the suggestion of the Ld.Addl. PP that he had also seen Sonu in injured condition. He has however admitted the fact that from the day accused Nadeem had threatened to see Sonu, Nadeem was having a grudge against him. But he denied that on account of aforesaid grudge, Nadeem along with his associates Janu, Wasim, Soni and Shanu had committed murder of Sonu in the park after chalking out a plan.
PW-6 Dinesh Kumar stated that on 12.2.2003 he was coming alone from the side of Nand Nagri and at about 10 or 10.30 pm he reached in the park near Gagan Cinema, he saw a quarrel between Wasim and Sonu and he separated 20 them and quarrel was put to rest. He further stated that thereafter Soni (facing trial before juvenile court) stabbed Sonu and on seeing this he became perplexed and ran away from there. He further stated that thereafter he had gone to his house he did not know anything else about this case. He further stated that he did not know any of the accused present in the court except accused Wasim and that police had met him but his statement was not recorded by the police. This witness was also declared hostile by the prosecution and was cross-examined by Ld.Addl. PP. In his cross-examination by Ld.Addl.PP he denied that at the time when he (PW-6) was intervening then all of a sudden accused Soni had caught hold of collar of Sonu and when he separated them, accused Soni asked for a knife and Shanu took out the knife and gave the knife to Soni. He further denied the suggestion of Ld.Addl. PP that accused Janu and Wasim had caught hold of Sonu by his arm from both sides 21 and Nadeem had said that since this time bakra was not available on the eve of ID, as such they will sacrifice him (Sonu). This witness however stated that accused Soni had stabbed Sonu by giving only one blow in his presence in the abdomen of Sonu and denied the suggestion that accused Soni had given one more knife blow in the abdomen of Sonu. He further denied the suggestion of Ld.Addl. PP that he had run away from the spot because the intentions of assailants were malafide and further denied that he had stated to the police that he had witnesses the incident with his own eyes. He further denied that he had become perplexed because Jitender who had come to rescue Sonu was also stabbed twice by Soni and Soni and Wasim had run after Jeeta. PW-6 further denied the suggestions of Ld.Addl.PP that accused Shahzad @ Wasim, Kayyum @ Shanu, Shehnawaz @ Janu and Nadeem were apprehended later on his identification and his supplementary statement was also recorded by the police 22 to this effect.
PW-7 Constable Padam Singh was the photographer and he stated that on 13.2.2003 on the requisition of IO SI Sanjay Kumar, he had visited the spot i.e E-1 block, Nand Nagri, MCD Park where blood was lying and he took photographs of the scene of occurrence from different angles. He proved the positives of the photographs as Ex. PW7/A-1 to PW 7/A-8 and negatives thereof as Ex. PW 7/B-1 to PW 7/B-8.
PW-8 Ramesh Chand stated that on 13.2.2003 he had gone to mortuary GTB and identified the dead body of deceased Pradeep Kumar @ Sonu, who was his brother-in-law and his statement Ex. PW 8/A was recorded to this effect. He further stated that after postmortem, dead body was handed over to Ramesh Kumar vide memo Ex.PW 8/B. PW-9 Ramesh Kumar was brother of deceased Sonu and stated that on 13.2.2003, he had gone to mortuary 23 and identified the dead body of his younger brother Pradeep Kumar @ Sonu and his statement to this effect was recorded by the IO which is Ex. PW 9/A and after postmortem the dead body was handed over to him vide memo Ex. PW 8/B. He further stated that on the same day he also handed over the blood stained pant and T-shirt of Sonu which were lying in the lane and the same were converted into sealed parcel and seized by the police vide memo Ex.PW-9/C and identified his signatures on memo Ex.PW 9/D. He further stated that from the scene of occurrence blood sample, earth control and blood stained earth control were lifted and sealed and seized by memo Ex.PW9/E. This witness correctly identified the shirt Ex.P-1 to be same which was worn by Jitender at the time of incident and T-shrit Ex.P-2 and Pant with belt Ex.P-3 collectively to be the same which were worn by his brother Sonu at the time of incident.
PW-10 Pradeep Kumar stated that he knew 24 Pradeep @ Sonu who was murdered. About 4-5 months prior to the incident, he had gone to fetch milk from Mother Dairy situated in E-1 block, Nand Nagri and accused Nadeem met him there and at that time me was having Rs.100/- cash with him. When he was returning after taking milk, accused Nadeem asked him to hand over the money and started snatching the cash but he did not hand over the cash to Nadeem, they scuffled with each other and accused Nadeem started giving beatings to him. PW-10 further stated that in the mean time Pradeep @ Sonu (deceased) came there and got him rescued from Nadeem and at that time his father and one boy Rajan also came there and thereafter accused Nadeem went away from there saying that he will see them later on. Then they came back to their house. He further stated that he did not know anything more about this case. PW-10 was also cross-examined by ld.Addl. PP and during his cross-examination this witness admitted that police had 25 recorded his statement. He further admitted it to be correct that when accused Nadeem had tried to snatch cash from him, there were Rs.40-50 in his possession and Sonu (deceased) had advised Nadeem not to see towards him (PW-10) again. This witness also admitted that due to the aforesaid act, accused Nadeem was having enmity with Pradeep @ Sonu (deceased).
PW-11 Naresh Giri stated that Rajan was his younger brother and he also knew Jitneder as he is his cousin brother. He further stated that Sonu (deceased) was also residing in his neighbourhood. PW-11 further stated that on 12th day of a month of 2003, it was day of ID, he was present at his house when at about 9.00 or 9.30 p.m his mother called him and told him to call Rajan who had gone to the park as he had sustained injuries on his hand. He further stated that he went to the park near his house near Gagan Cinema where he saw his brother Rajan and Shanu talking to 26 each other and on seeing him they stopped talking and none else was present there and he could not hear as to what they were talking. He further stated that he told his brother to Rajan to come with him for house and on his asking Rajan went to the house and he (PW-11) remained in the park. He further stated that thereafter deceased Sonu and Nadeem came in the park along with 4-5 other persons whose name he did not know but could identify them by their faces. He identified accused Nadeem. He further stated that he put his hand on the shoulder of Sonu and asked him as to what was he doing there upon which he told that he was talking. One Dinesh was also present there at that time. PW-11 further stated that thereafter he came back to his house. He further stated that he was present at the third floor of his house when he heard the noise of cries and when he looked down, he saw Sonu was lying in the injured condition in front of his house with stab injuries and he also saw Jitender who was having 27 stab injuries and was standing with support of electric pole. He further stated that he along with others removed both of them to GTB Hospital. Sonu died in the hospital and thereafter he came back to his house. He further stated that he did not want to say anything more about this case. This witness was also cross-examined by the Ld.Addl. PP in which PW-11 admitted that on 12.2.2003 his brother Rajan, Jitender and Sonu had met with an accident while returning from GTB Hospital. He also admitted that on his arrival in the park, he had seen Rajan, Sonu and Jite standing at short distance from each other and Shanu was also standing with Jitte and accused Nadeem was standing with Sonu. He however denied the suggestion of Ld.Addl. PP that accused Wasim and Soni were also standing with Jite. He also denied the suggestion of the ld.Addl.PP that there was skirmish between Sonu and accused Nadeem and Janu. One Dinesh was trying to pacify and intervene between them and on his (PW-11) 28 asking about the matter, Jite and Rajan had told him that there was nothing material and he should go from there and also denied that he had brought Rajan with him. PW-11 admitted the suggestion of the Ld.Addl. PP that accused Nadeem, Wasim, Soni, Janu and Shanu were of badmash (criminal) type boys and they all used to live together but he denied the suggestion that on that day they had collected together. He however admitted the suggestion of the Ld.Addl. PP that accused Nadeem was having grudge against Sonu on account of previous quarrel which took place 4-5 months prior to the incident.
PW-12 Constable Parveen stated that on 9.4.2003 he had taken the exhibits of this case from MHC(M) HC Vijender Singh and had got them deposited in the FSL Malviya Nagar vide RC No.17/21 and after deposition, the copy of the receipt was handed over to MHC(M). So long the case property remained in his custody it was not tampered 29 with by anybody.
PW-13 HC Desh Pal deposed that on 12.2.2003 he was posted at PS Nand Nagri and on that day at about 10.22 p.m he along with IO SI Sanjay went to E-1, Block, Nand Nagri to verify the facts of DD No.12-A. On reaching there on making inquiries it came to be known that injured had been removed to GTB hospital. Then he along with the IO went to GTB Hospital and collected the MLCs of injured. He further stated that one injured had been declared dead and the second injured was unfit for statement. He further stated that IO prepared rukka on DD No.12/A and he took the same to the police station for registration of the case and got the case registered, collected the copy of the FIR and rukka from the DO and handed over the same to the IO in the hospital and from there they came back to the place of incident i.e E-1/383, Nand Nagri, Delhi where SI Sanjay Singh IO liftted blood sample, sample control earth and blood 30 stained earth from the spot and seized the same after sealing it with seal of SK vide memo Ex.PW 9/E, photographs of the spot were taken and crime team was called. He further deposed that Doctor concerned had also handed to him pullanda containing clothes of Jitender duly sealed which were seized vide memo Ex. PW 1/A. This witness was also declared hostile by the prosecution and in his cross-examined by the Ld.Addl. PP he admitted that on 13.2.2003 Ramesh Kumar had produced one T-shirt of white colour, one pant of black colour and one belt to IO SI Sanjay Singh which were disclosed to be of deceased Sonu @ Pradeep and the same were seized by the IO vide memo Ex. PW 9/C after sealing them with seal of SK. This witness further admitted that one shirt belonging to Jitender having blood stains on it was also handed over by Ramesh which was also seized by the IO vide memo Ex.PW-9/D after sealing the same with seal of SK. He further admitted in his cross-examination that on 13.2.2003 31 after postmortem the doctor had handed over the envelop to SI with gauze blood cloth of deceased Pradeep and same was duly sealed with seal of SK and seized vide memo Ex.PW 13/A. PW-14 Woman Constable Sharda deposed that in the intervening night of 12/13-2-2003 she was on duty at the Head Quarter Control Room and she had received an information regarding incident of stabbing at H.No.E-1/383, Nand Nagri and she recorded the said information in the Log Book as also passed on the said information to North East PCR.
PW-15 Dr.P.P.Singh stated that MLCs of injured/deceased Sonu @ Pradeep and Jitender were prepared by Dr.Dinesh Kumar ACMO and Dr.Lokesh Popli and he identified their signatures and handwriting and the said doctors had left the services of the hospital.
Dr. P.P.Singh further stated that on 12.2.2003 32 both the above said injured were were medically examined at 10.30 p.m by Dr.Dinesh Kumar and Dr.Lokesh Popli and both the injured were unfit for statement. He further stated that he was on duty as CMO and injured Pradeep @ Sonu who was brought in the hospital by Naresh was examined by Dr. Dinesh Kumar and on local examination two injuries were found on his person which were mentioned on the MLC Ex. PW 15/A and after giving first aid to Sonu @ Pradeep, he was referred to Senior Resident Surgery for treatment and management.
Dr. P.P.Singh further deposed that injured Jitender was brought by his brother Naresh and he was examined by Dr.Naresh Popli and on local examination injuries on his person were mentioned on the MLC Ex.PW 15/B and injured Jitender was referred to ENT for treatment and management.
PW-16 SI Satender Mohan deposed that on 33 13.2.2003 he was posted as SI in Crime Team North East District and on that day on calling of SI Sanjay Kumar at MCD park E-1/383 Nand Nagri, Delhi he along with staff went there where stabbing incident had taken place. He further stated that he inspected the place of occurrence and made efforts to probe chance prints, foot prints etc but in vain. He further stated that photographer took photographs of the place of occurrence from different angles at the instance of IO and one blood trail was noticed by him. He further stated that he advised to take action accordingly, prepared crime visitation report and handed over to the IO. The same was not on judicial file.
PW-17 HC Vijender deposed that on 12.2.2003 he was working as MHC(M) and on that day SI Sanjay Kumar had deposited with him MLC in the name of Jitender with one sealed parcel duly sealed with with seal of GTB Hospital. He further stated that on 13.2.2003 SI Sanjay Kumar 34 deposited with him another pullanda and blood sample and also sample earth duly sealed with seal of SK. He stated that he made all the entries regarding it in Register No.19 at Srl. No.26,64, and 26,65 in his own hand and proved the copy of the entries as Ex. PW17/A-1 to PW 17/A-3.
PW-18 SI Mukesh Kumar deposed that on 12.5.2003 at the request of IO, he reached the police station Nand Nagri from where he along with SI Sanjay visited the spot i.e MCD Park E-1 block, Nand Nagri where he took rough notes and measurements of the spot on the pointing out of SI Sanjay and on the basis of said rough notes and measurements he prepared scaled site plan Ex. PW 18/A and thereafter destroyed the rough notes and measurements.
PW-19 ASI Vinod Kumar deposed that on 12.2.2003 while working as duty officer, on receipt of rukka through Constable Desh Pal sent by SI Sanjay Kumar he recorded formal FIR in this case and proved the copy thereof 35 as Ex. PW 19/A. PW-20 HC Dharambir deposed that on 21.3.2003 he joined he investigation of this case with SI Sanjay Kumar and went to Kingsway Camp, the Juvenile Court and accused Soni involved in this case was taken on police remand from 10.50 a.m to 7.00 p.m and accused Soni was taken to P.S. SI Sanjay made inquiries from Soni and recorded his disclosure statement Ex. PW 20/A and then accused pointed out the place of occurrence MCD Park near Gagan Cinema vide pointing out memo Ex.PW 20/B. He further stated that on the pointing out of accused Soni search of knife which was used in the crime was also made but same could not be traced out, accused Soni was got medically examined and bony X-ray was got done and then he was sent to Juvenile Jail.
PW-21 Dr.Shyam Prakash stated that on 13.2.2003 he was working as Senior Resident in GTB Hospital and he had seen patient Jitender aged 20 years and on 36 examination he found him unfit for statement and he mentioned this fact on the MLC Ex.PW 15/B. PW-22 Dr.Lokesh Popli stated that on 12.2.2003 at about 10.30p.m he medically examined injured Jitender and on examination he found that patient was drowsy and not responding to any commands and there was active bleedings from his left subclavian region and BP and pulse was not record- able and he was breathing spontaneously, SR Surgery and ENT were called immediately and patient was shifted to emergency OT and referred to their respective units and MLC Ex. PW 15/B was prepared by him.
PW-23 Dr.R.K.B. Chaudhary stated that death certificate of deceased Pradeep @ Sonu was in the handwriting of Dr.S.S.Sahey who had left the services of the hospital. He further stated that as per records, deceased Pradeep @ Sonu was brought in GTB hospital on 12.2.2003 and was declared dead on the same day at 11.55 p.m and 37 cause of death was mentioned as hemorrhagic shock with cardiac respiratory arrest. He proved the death certificate as Ex.PW-23/A which was in the handwriting of Dr. S.S.Sahey and he had seen Dr. Sahey writing and signing.
PW-24 Dr. Manish Kumar Gupta deposed that on 12.2.2003 patient Jitender was admitted in GTB Hospital with alleged history of assault. On 15.2.2003 he checked Jitender and opined him to be unfit for statement. He proved the opinion purported to have been recorded by him as Ex.PW 24/A on MLC Ex. PW 15/B and stated that however the opinion was not recorded by him.
PW-25 Dr. K.K. Banerjee conducted postmortem on the dead body of deceased on 13.2.2003 vide postmortem report No. 111/03 and proved the same as Ex. PW 25/A. PW-26 SI Sanjeev Kumar was the IO of the case who stated that on 12.2.2003 at about 10.22 p.m DD No.12- A, Ex. PW 26/A was recorded in PS regarding stabbing of 38 somebody at E-1/383, Nand Nagri, Delhi which was marked to him for action in the matter. He along with Ct. Deshpal proceeded for the spot where public was present and they came to know that two injured had been shifted to GTB Hospital. He further stated that he then went to GTB Hospital and collected MLC of Pradeep @ Sonu and Jitender whereupon both the injured had been declared unfit for statement. Injuries on their person was opined to be caused by sharp weapon and under observation. He further stated that as no eye witness was available in the hospital and on the basis of circumstances, he put endorsement Ex.PW-26/B and got the case registered through Ct.Deshpal. He then recorded statement of Naresh Giri who had brought both injured to hospital. He further stated that Ct.Deshpal came in the hospital and handed over original rukka and carbon copy of FIR Ex. PW19/A to him. He further stated that Ct. Jasbir gave him one parcel which he seized vide memo Ex. PW1/A, 39 recorded statement of Ct.Jasbir and then went to spot where witness Dushyant @ Rajan met him and he recorded his statement. He further stated that he received DD no.72-B (Ex.PW-26/C) regarding death of injured Pradeep @ Sonu and he added section 302 IPC, recorded statement of witness Dinesh.
He further stated that on 13.2.2003 he went to spot along with Ct. Deshpal and Dinesh and prepared site plan Ex. PW 26/D on the pointing out of Dinesh who was eye witness of the incident and called crime team and photographer at the spot. He further stated that Ramesh handed over to him the blood stained clothes of Pradeep which he seized vide memo Ex. PW 9/C and that of injured Jitender vide memo Ex. PW 9/D after converting them into separate sealed parcels with seal of SK. He proved the photographs Ex. PW 7/A-1 to PW 7/A-8. He further stated that he lifted blood sample, earth control, sample of blood 40 stained earth, put them in separate vials and sealed with seal of SK and seized vide memo Ex.W 9/E. He then recorded statement of Pradeep Kumar at police station. Thereafter he along with Ct. Deshpal went to hospital and prepared inquest papers regarding death of Pradeep @ Sonu, prepared form No.2535 (Ex-PW-26/E), made request for postmortem vide application Ex. PW 26/F, recorded statements of Ramesh Kumar Ex. PW 9/A and Ramesh Chand Ex.PW 8/A regarding identification of dead body, released dead body in favour of relatives of deceased vide memo Ex.PW 8/B, seized parcels which doctor had preserved vide memo Ex. PW 13/A. PW-26 further stated that on 18.2.2003 accused Shahid @ Wasim and Kayum @ Shanu came to police station and he arrested them at instance of Dinesh vide memo Ex. PW 3/F and PW 3/G and conducted their personal search vide memo Ex. PW3/E and Ex.PW-3/D. He recorded their disclosure statement vide memo Ex.PW-3/A and Ex.PW-3/B 41 respectively.
He further stated that on 19.2.2003 he arrested accused Shah Nawaz @ Shanu at instance of informer vide memo Ex. PW-3/L and conducted his personal search vide memo Ex. PW 3/K and recorded his disclosure statement vide memo Ex.PW-3/H. He further stated that on 26.2.2003 accused Nadeem came to police station. He summoned Dinesh and at the instance of Dinesh arrested accused Nadeem vide memo Ex. PW 3/P and conducted his personal search vide memo Ex. PW 3/O and recorded his disclosure statement vide memeo Ex.PW 3/M. He further stated that fifth accused Soni surrendered before the Juvenile Court on 20.3.2003 and on 21.3.2003 he obtained one day P.C remand of accused Soni and recorded his disclosure statement Ex.PW20/A and made search for knife but same was not found. He further stated that on 9.4.2003 he got sent the exhibits to FSL Malviya 42 Nagar, submitted the record before SHO for preparation of charge sheet, got accused challaned, on 12.5.2003 got scaled site plan Ex. PW18/A prepared through SI Mukesh Kumar and thereafter submitted same before the cout and obtained the result Ex. P-X from FSL.
PW-27 Dr.Shalabh Rastogi proved the endorsement Ex. PW-27/A made by Dr.Harpreet Singh on MLC Ex.PW 15/B wherein the Dr. Harpreet Singh had opined the nature of injuries sustained by victim to be dangerous.
I have heard Sh.S.K.Raghuvanshi Addl.P.P for the State, Sh. Rakesh Kochar Ld.Counsel for accused Shanu @ Kayyum, Sh.Dasa Ram Ld. Counsel for accused Shahnawaz, Mohd. Farman Ld.Counsel for accused Nadeem and Sh.Ashok Singhal Ld.Counsel for accused Shehzad. I have also gone through the written submission on behalf of accused Qayum and Nadeem and the case file.
It was submitted by Ld.Addl.P.P for the State that 43 from the statement of public witnesses it stands proved that it were the accused persons who in furtherance of their common intention gave knife injuries to Sonu which resulted in his death and also caused grievous injuries to Jitender. As such, they were liable to be convicted.
On the other hand it was submitted by Ld.Counsel for the accused persons that none of the public witnesses including the injured Jitender have supported the prosecution case. It was further the submission of the Ld.Defence Counsels that none of the accused has been identified by the witnesses to be assailants. As per Ld.Counsels all the material witnesses of the prosecution have turned hostile and did not support the prosecution case.
The bare perusal of the evidence that has come on record shows that the prosecution case is based upon testimony of PW-2 Jitender who is the injured and eye witness to the incident, PW-5 Dushyant who is also an eye 44 witness to the incident, PW-6 Dinesh Kumar to PW-11 Naresh Giri who were the eye witnesses and PW-10 Pradeep Kumar was a witness cited by the prosecution to prove the motive of the crime.
First of all I will take the testimony of PW-2 Jitender. As per the prosecution case it was in his presence that that deceased was given knife injuries and he himself (PW-2) also received injuries. In his examination-in-chief stated that he had seen Sonu lying injured on the ground and when he tried to lift him, accused Wasim gave knife blow on his neck. He further stated that he could not see as to who caused injuries to deceased Sonu. This witness was declared hostile by the prosecution and cross-examined by Addl.P.P. When this witness was cross-examined by Ld.Defence Counsel, he stated that he could not see as to who had stabbed Sonu. He further stated that faces of offenders were not clearly visible. He further stated that he had not seen any 45 weapon of offence in the hands of accused persons when the incident started. In his examination-in-chief he stated that Wasim had stabbed him and he had also told this fact to the police. He was confronted with his statement under section 161 Cr.P.C where the said fact was not recorded. However, in his cross-examination by the Ld. Defence Counsel, he stated that he does not know who stabbed him.
Thus it is clear that testimony of this witnesses cannot be relied upon as he kept on changing his stand time and again. It is not clear from his testimony as to who had caused injuries either to him or to deceased Sonu which resulted in his death.
Now I take the testimony of other public witness PW-5 Dushyant Goswami who was friend of deceased Sonu and injured Pradeep. He admitted his presence at spot to some extent but stated that he had gone to his house along with his brother Naresh Giri. He further stated that after some 46 time he had seen Jitender @ Jeeta in injured condition. He further stated that he did not know as to how and who had caused injuries to Sonu (deceased). This witness was also cross-examined by Ld.Addl.P.P but it could not come on record as to who stabbed Sonu and who caused injuries to Jitender. In his cross-examination by Ld.Defence Counsel he stated that there was no light in the park and there was darkness. Thus, testimony of this witness is also of no help to the prosecution.
Now we come to the testimony of PW-6 Dinesh Kumar. He, according to the prosecution was also an eye witness to the incident. But he has incorporated entirely a different story. As per him it was accused Soni who had stabbed Sonu and on seeing this he had run way from the spot. He has further stated that he did not know any of the other accused except Wasim. Soni is facing trial before juvenile court, so his this statement that Soni had stabbed 47 Sonu is of no value to the prosecution. When this witness was cross-examined by Ld.Defence Counsel, he admitted it to be correct that it was not possible to recognize face of someone from a distance of five paces. Thus, testimony of this witness is of no help to the prosecution in any way.
Another public witness cited by the prosecution is Pradeep Kumar PW-10. This witness deposed about a previous quarrel between him and Nadeem and further stated that it was deceased Sonu who had intervened in the matter and rescued him. He also stated that Nadeem had threatened to see him in future. This witness as also declared hostile by the prosecution and cross-examined by ld.Addl.PP and he admitted in his cross-examination that on account of this quarrel, Nadeem was having enmity with Pradeep @ Sonu (deceased). Thus, statement of PW-10 does not hold much ground as this statement no where suggest that it was accused Nadeem or any other accused who stabbed Sonu 48 which later on resulted in his death.
Another public witness cited by the prosecution is PW-11 Naresh Giri who shifted both the injured to the hospital. He stated that when he was standing on the third floor of his house, he heard noise and cries and saw Sonu lying in injured condition in front of his house and Jitender was also standing there having stab injury. This witness was also declared hostile by the Ld.Addl.PP and cross-examined but nothing fruitful could come out from his cross- examination which could benefit prosecution in any way. In his cross-examination by the Ld.Defene Counsel, this witness (PW-11) stated that in his presence no quarrel took place between Pradeep and Nadeem and no occurrence had taken place in his presence and what all he was deposing he was deposing on hearsay. This witness further stated in his cross- examination by the Ld.Defence Counsel that it was too dark to identify anybody even within distance of one feet. Thus, 49 nothing has come in the statement of this witness also which could suggest that it were the accused persons who had caused stab injuries to deceased Sonu which later on resulted in his death and caused injuries to Jitender.
Other public witnesses which have been cited by the prosecution are PW-8 Ramesh Chand and PW-9 Ramesh Kumar. PW-8 had identified the dead body of the deceased Sonu and PW-9 Ramesh Kumar had also identified dead body of Sonu and received the same and he had handed over the blood stained clothes of deceased to the police. Thus their testimony is formal in nature.
Other witnesses examined by the prosecution are the police officials are the doctors and there are formal in nature.
Appreciation of the evidence of all the material witnesses shows that none of the witness stated that it were the accused persons who had caused stab injuries to deceased 50 Pradeep @ Sonu which later on resulted in his death. Even the eye witness PW-2 Jitender who is also injured in the incident stated that he did not know who caused injuries either to him or to deceased Sonu. It was the testimony of PW-2 Jitender only which could have proved that on the day of the incident all the accused persons had assembled to cause death and in pursuance thereto, had caused stab injuries to Sonu who died later on and also caused dangerous injuries to him i.e PW-2.
Therefore, in my view, the prosecution has failed to proved beyond reasonable doubt that on the date of the incident i.e 12.2.2003, all the accused persons had formed an unlawful assembly armed with deadly weapons for committing murder and in pursuance thereto, they had committed the murder of deceased Pradeep @ Sonu or that all the accused persons had also caused knife injuries to PW-2 Jitender which were opined by the doctor to be dangerous in 51 nature.
Thus, giving benefit of doubt to the all the accused persons, they are acquitted of the charges against them. Their bailbond stand cancelled. Sureties are discharged.
File be consigned to Record Room.
Announced in open court on this 1.12.2009 (Surinder Kumar Sharma) Additional Sessions Judge North - East Karkardooma Courts, Delhi.