Delhi District Court
SC/748/2019 on 20 December, 2022
IN THE COURT OF MS.NEHA PALIWAL SHARMA,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI
COURTS, DELHI.
CNR No. DLWT01-010371-2019
Sessions Case No.748/2019
FIR No.397/19
PS Moti Nagar
State
v.
Brijesh
S/o Sh.Ganesh Prashad
R/o Jhuggi No. J-74, Rakhi Market,
Zakhira, Delhi.
Date of Institution : 29.11.2019
Date of committal : 24.12.2019
Date of reserving Judgment : Not reserved
Date of Decision : 20.12.2022
Final Judgment :Accused Brijesh is
acquitted from the
offence punishable under
section 307 IPC read with
section 34 IPC.
JUDGMENT
Case of the Prosecution in brief :
1. On 07.09.2019, on receipt of DD no. 30A, IO/SI Yadram Yadav alongwith HC Mahesh reached at the spot, that is, Zakhira Pyaj gate, near Gol Chakkar, where they came to know that the injured was taken SC No.748/2019 State v. Brijesh Page No. 1/14 to Acharya Bhikshu Govt. hospital by his father. Thereafter, IO/SI Yadram Yadav alongwith HC Mahesh reached at the hospital, where they found injured Afsar admitted in the hospital vide MLC no.
31379/2019. Thereafter, IO recorded the statement of injured Afsar in the hospital.
2. It was stated by the injured in his statement recorded by the IO that he does the work of repairing and sale of batteries of battery rickshaws alongwith his father at Chara Mandi, Zakhira. 7-8 days prior to the incident, he and his father had intervened in an altercation which took place between one driver, who was sitting in front of their shop and accused Brijesh, CCL 'C' and Babu. On 07.09.2019, at about 12 noon, when he was going to repair one battery rickshaw towards the back side of his shop, accused Brijesh alongwith CCL 'C' held him and quarreled with him due to the incident which had taken place 7-8 days back. CCL 'C' held him and accused Brijesh took out a knife and inflicted stab injuries on his thigh and back, thrice, due to which he sustained injuries and fell down. Thereafter, accused Brijesh and CCL 'C' escaped from the spot. Accused Brijesh and CCL 'C' reside in Chara Mandi, Zakhira and are well known to him. They both together had inflicted injuries to him.
3. On the basis of statement of injured Afsar and on the basis of his MLC no. 31379/2019, the present FIR no. 397/19, u/s 326/34 IPC was registered on 07.09.2019.
Investigation conducted :
4. Injured was referred to Higher Centre by the hospital and his father got SC No.748/2019 State v. Brijesh Page No. 2/14 him admitted in the Higher Centre for treatment. IO asked the father of injured to meet him at the spot after getting the injured admitted in the Higher Centre. The examining doctor handed over one sealed pullanda sealed with the seal of the hospital, containing worn clothes of injured to the IO alongwith sample seal. The IO seized the same after sealing them with the seal of YRY.
5. Thereafter, on receipt of secret information, IO alongwith HC Mahesh and secret informer reached at railway line, Zakhira and there, at the instance of secret informer, apprehended accused Brijesh. Disclosure statement of accused Brijesh was recorded wherein he disclosed about his involvement in the present case. Weapon of offence was searched at the instance of accused Brijesh, however, the same could not be recovered. Father of injured namely Niyaz Ahmed identified accused Brijesh. At the instance of accused, pointing out memo of the place of incident was prepared by the IO. Thereafter, accused Brijesh led the police party to the house of his associate namely CCL 'C', however he was not found present in his house.
6. At the instance of father of injured, site plan was prepared. Statements of witnesses were recorded under section 161 Cr.P.C. Pullanda of worn clothes of accused Brijesh, which as per his disclosure were worn by him at the time of commission of offence as well, after seizing the same, was prepared and taken into possession by the IO after sealing them with the seal of YRY.
7. Statement of father of injured namely Niyaj Ahmed @ Mohan u/s 161 Cr.P.C. was also recorded, wherein he stated that he does the work of repairing battery rickshaw. On 07.09.2019, when he was present at his SC No.748/2019 State v. Brijesh Page No. 3/14 shop, one passerby informed him that his son Afsar had sustained stab injuries. In the meantime, he noticed that accused Brijesh and CCL 'C' with whom earlier a minor altercation of them had taken place, were running from the side of Pyaj Gate and on seeing him, they both ran towards the other side. He found his son Afsar in an injured condition at near railway line, Pyaj gate, who had received stab injuries. His son told him that CCL 'C' had held him and accused Brijesh had inflicted knife blows to him. He brought his son to the hospital and called at 100 number.
8. IO deposited the pullandas containing the worn clothes of the victim and the worn clothes of the accused in the malkhana. On 08.09.2019, on receipt of secret information, CCL 'C' was apprehended by the IO from the jhuggis near railway line. The weapon of offence could not be recovered from him as well, however he was identified by the father of injured namely Niyaz Ahmed @ Mohan. The worn clothes of CCL 'C' were also seized by the IO after sealing them with the seal of YRY and were deposited in the malkhana. The blood sample of the injured was also taken in the hospital on 25.09.2019.
9. The doctor opined the nature of injuries on the MLC of victim Afsar as 'dangerous'. On 25.09.2019, IO also recorded the supplementary statement of injured Afsar, wherein he stated that he had forgotten to state in his previous statement that on the day of incident, at the time of his quarrel with accused Brijesh and CCL 'C', CCL 'C' had infact asked accused Brijesh to take out knife and finish him. Thereafter, accused Brijesh with the intention to kill him, took out a knife and inflicted three stab injuries on his person. On the basis of the supplementary SC No.748/2019 State v. Brijesh Page No. 4/14 statement of injured Afsar and on the basis of opinion of the doctor on the MLC of injured, section 307/34 IPC was added in the present case instead of section 326/34 IPC.
10.Charge-sheet was filed against accused Brijesh before the Court u/s 307/34 IPC, pending FSL result.
11.During trial, FSL result was filed in the form of supplementary final report before the Court on 04.08.2022.
Trial Proceedings :
12.Charge for the offence punishable under section 307 IPC read with section 34 IPC was framed against accused Brijesh on 13.02.2020 by the Ld. Predecessor of this Court, to which he pleaded not guilty and claimed trial.
13.In order to prove its case against the accused, the prosecution had examined three witnesses, that is, PW-1 Afsar, PW-2 Badal Arora and PW-3 Niyaz Ahmed @ Mohan.
14.Admission/denial of the documents was conducted under Section 294 Cr.P.C., wherein the accused admitted the execution/ preparation of following documents and the conduction of following proceedings during investigation and did not dispute their genuineness during trial :
1. The preparation of MLC No. 31379/19 of injured Afsar, at Acharya Bhikshu hospital, Moti Nagar, Delhi and examination of injured by Dr. S.K. Kaakran and the opinion given by Dr. Rahul on the said MLC Ex.P.1.
2. The treatment record No.785334 dated 07.09.2019, CR No.7412 MLC No. 31379/19 of injured Afsar, Unit S3, which SC No.748/2019 State v. Brijesh Page No. 5/14 was prepared by Dr.Subodh and Dr.Debarishi, RML hospital, Delhi, Ex.PW-3/B1 to Ex.PW-3/B8.
3. PCR form no. 07sep191470293, Ex.P.2, which was recorded by W/Ct.Neetu.
4. The deposition of exhibits in FSL, Delhi by Ct.Praveen of PS Moti Nagar.
5. The bringing of rukka by HC Mahesh, PS Moti Nagar to the police station for registration of present FIR and that HC Mahesh was present at the time of apprehension of CCL 'C'.
6. Entries in register no.19 regarding deposition of case property of the present case, Ex.P.5 (colly.) and register no. 21 Ex.P.6.
7. GD no.30A dated 07.09.2019, Ex.P.7 recorded by ASI Daya Ram.
8.The factum of registration of present FIR 397/2019 dated 07.09.2019, PS Moti Nagar, Ex.P.8 and issuance of Certificate u/s 65B of the Indian Evidence Act in this regard by the duty officer Ex.P.9.
15.As the accused admitted the preparation/execution of these documents and conduction of these proceedings, therefore, on submissions of ld. Addl. P.P. for the State, the prosecution witnesses that is Dr. S.K.Kaakran, Dr. Rahul, Dr. Subodh, Dr.Debarishi, W/Ct. Neetu, Ct. Praveen, HC Mahesh, MHC(M), ASI Dayaram and ASI Satnarain, were dropped from the list of prosecution witnesses.
16.Thereafter, the matter was fixed for further prosecution evidence. Summons sent to the IO were received back with request.
SC No.748/2019 State v. Brijesh Page No. 6/14Prosecution evidence :
17.Perusal of the file reveals that PW-1 Afsar, PW-2 Badal Arora @ Babu and PW-3 Niyaz Ahmed are the only public witnesses cited in the present case, who could have deposed before the Court regarding the commission of offence by accused Brijesh. Besides them, all other remaining prosecution witnesses have been dropped except IO by the prosecution as the accused has admitted the execution of documents/conduction of proceedings by those expert witnesses/official witnesses/police witnesses/witnesses of investigation.
18.PW-1 Sh. Afsar is the injured/complainant of the present case and the star witness of the prosecution on whose testimony, the entire case of the prosecution depends. He however, had turned hostile to the case of the prosecution qua the identity of the accused. He had deposed that in the month of September, 2019, when he was going to repair a battery at the back side of his shop and reached near the vehicle and started to repair battery, someone came from his back side and hit him with knife on his back. When he tried to turn that person again hit with knife and caused stab injuries to him on his left thigh. Due to the said stab injuries, he fell down, felt giddy and lost consciousness. When he regained his consciousness, he was at Acharya Bhikshu hospital and was being medically examined. Police officials took his signatures. He was referred to Ram Manohar Lohia hospital, where also he was medically examined. The treatment papers of RML hospital, Ex.PW- 1/A, running into 10 pages (colly.) were deposited by him at the time of his deposition before the Court. He further deposed that no incident SC No.748/2019 State v. Brijesh Page No. 7/14 had taken place with him prior to the said incident and he was not aware that who had called police.
19.PW-1 was declared hostile by the State and was cross-examined by the ld. Addl. P.P. for the State. He stated in his cross-examination that though complaint Ex.PW-1/B bears his signatures and he had signed on the said complaint at Acharya Bhikshu Govt. Hospital, however, the contents of the said complaint were not read over to him by the IO at the time when his signatures were obtained on the same. He denied the entire case of the prosecution regarding the alleged incident which took place 7-8 days back with accused Brijesh, CCL 'C' and one Babu. He further denied that CCL 'C' and accused Brijesh with the intention to kill him had inflicted stab injuries on his thigh and back thrice due to which he fell down. He further deposed that accused Brijesh was not present at the spot on the date and time of incident and further stated that he could not see the face of the assailants who had caused stab injuries to him on the date and time of incident as the said person had caused stab injuries to him from the back side and after sustaining stab injuries, he fell down and became unconscious. He correctly identified his worn clothes Ex.P.1, Ex.P.2 and Ex.P.3 before the Court and further deposed that his blood samples were taken in the present case.
20.PW-2 Badal Arora had deposed that in October, 2019, at Zakhira, some arguments had taken place between him and one person by the name of Maleria. Two elderly persons intervened and as a result, the arguments were stopped. Thereafter, he and the said person went for their respective works. He does not know anything about the present SC No.748/2019 State v. Brijesh Page No. 8/14 case. This witness was also declared hostile by the prosecution. PW-2 in his cross-examination by the State deposed that he is not aware about the names of those two elderly persons, who had intervened on that day. He had not slapped Maleria however, some pushing and pulling had taken place during arguments. He denied that he had taken the names of Mohan and Afsar before the police as the two elderly persons who had intervened. He denied giving supplementary statement Mark PW- 2/A to the police. He further denied that he knew accused Brijesh.
21.PW-3 Niyaz Ahmed @ Mohan is the father of injured and is cited by the prosecution as the witness qua prior and subsequent events qua the commission of offence. He, however had also turned hostile to the case of the prosecution. He had deposed that on the day of incident, when he was present at his shop at Zakhira Chara Mandi, one person came and informed him that his son Afsar is lying in the street. He ran towards his son Afsar and found that his son Afsar was lying near railway track behind his shop. Thereafter, he took his son to Acharya Bhikshu Govt. hospital by auto, where his son was medically examined. He had not met the police officials on that day. He is not aware how his son sustained injuries. His son had not told him about the incident and when he inquired from his son that how he had received injuries, he told him that he had fallen down on the road as he was feeling giddy.
22.PW-3, in his cross-examination by the State deposed that he is illiterate and only puts his thumb impressions. He was called by the police in the police station and had not gone with the police anywhere else. He had not shown the place of incident to the police officials. He denied that the site plan was prepared at his instance, though he identified his SC No.748/2019 State v. Brijesh Page No. 9/14 thumb impressions on the site plan Ex.PW-3/A. He further deposed that he had handed over the treatment papers of his son Afsar of RML hospital, Ex.PW-3/B1 to Ex.PW-3/B8 (colly.) to the IO and the same were seized by the IO through seizure memo. He further deposed that accused Brijesh was not arrested or interrogated in his presence nor any pointing out memo was prepared at the instance of accused Brijesh in his presence. He denied giving statement mark PW-3/X1 to the police. He further denied that on 07.09.2019, he saw that accused Brijesh and CCL 'C' running towards the gate. He further denied that his son had told him that CCL 'C' and Brijesh had attempted to kill him by causing stab injuries to him. He further denied making any call at 100 number. He further denied that site plan was prepared at his instance or that efforts to search the knife were made in his presence or that the worn clothes of accused Brijesh were seized in his presence or that CCL 'C' was apprehended in his presence. He categorically deposed that he does know accused Brijesh.
Appreciation of law & evidence :
23.Thus though the complainant/injured had deposed that he had received stab injuries on his thigh and back as is reflected in MLC Ex.P.1 and treatment papers Ex.PW-3/B1 to Ex.PW-3/B8 (colly.) and Ex.PW-1/A, running into 10 pages, however, he had deposed that the said injuries were not inflicted by accused Brijesh upon him. He had further deposed that he was not able to see the face of the assailants as he was attacked from behind. His father has also deposed that he does not know accused Brijesh and had further deposed that his son had not disclosed anything SC No.748/2019 State v. Brijesh Page No. 10/14 to him and that he had not seen accused Brijesh and CCL 'C' running from the side of Pyaj gate. The complainant/injured PW-1 and his father/PW-3 had further deposed that nothing had happened with them 7-8 days back prior to the incident. The testimony of PW-2 Badal Arora is also of no consequence as he had failed to identify accused Brijesh and had further turned hostile qua the fact that injured and his father had intervened in the previous quarrel.
24.PW-1, though had identified his signatures on complaint Ex.PW-1/A, however had deposed that the complaint was not read over to him by the investigating officer and only his signatures were taken on the same.
25.It was held by the Hon'ble Supreme Court of India in the case titled as Satish Mehra v. Delhi Admn. & Anr. 1996 JCC 507, that :
"....in a case where, there is no prospect of the case ending in conviction, the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on the future date".
26.In the present case, only the complainant/injured and his father could have deposed qua the involvement of the accused in the commission of the crime. The complainant/injured and his father/PW-3 had turned hostile to the case of the prosecution. The complainant though had deposed regarding the incident, however, had turned hostile qua the identity of the assailant and his father had also turned hostile qua the case of the prosecution that father had seen CCL 'C' and accused Brijesh running away from the spot. Moreso, there is no recovery of alleged weapon of offence from the possession of the accused.
27.The worn clothes of injured, accused and CCL 'C' were seized and were sent to FSL for examination alongwith the blood samples of the injured.
SC No.748/2019 State v. Brijesh Page No. 11/14FSL reports are admissible u/s 293 Cr.P.C. Perusal of the FSL report dated 10.12.2020 reveals that from the shirt, pant and underwear of injured and from the T.shirt of accused Brijesh, DNA could not be isolated and the reason may be due to degradation/inhibition. It was further reported that blood could not be detected from the other samples that is, clothes of CCL 'C' and from jeans pant of accused Brijesh. Thus, the FSL report had remained inconclusive as DNA could not be extracted from the exhibits.
28.Therefore, in the absence of incriminating testimonies of PW-1, PW- 2 and PW-3 and in view of inconclusive FSL result, even by examining the investigating officer which is the sole witness of the prosecution left, the prosecution cannot by any stretch of imagination establish its case against the accused Brijesh.
29.Thus, no fruitful purpose will be served by calling the investigating officer for deposition before the Court as he can only depose qua the investigation done by him and the various aspects of case covered by him and in the absence of the incriminating testimonies of public witnesses, his deposition is of no avail and cannot prove the case of the prosecution that it was the accused who had inflicted stab injuries on PW-1 Afsar alongwith CCL 'C', with the intention to kill him.
30.In view of the above said discussions and findings, there is no incriminating material on record against the accused namely Brijesh.
31.In view of the same further prosecution evidence is closed, recording of statement of accused U/s 313 Cr.P.C. is also dispensed with. Final arguments are heard, as advanced by the Ld. APP for State and Ld. SC No.748/2019 State v. Brijesh Page No. 12/14 Counsel for accused.
32.It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
33.The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. v. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami v. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
34.As in a criminal trial the onus is on the prosecution to establish the guilt of the accused before the Court beyond the shadow of all reasonable doubts and in the present case keeping in view the above said discussions and findings the prosecution has not been able to show any incriminating material on record against the accused, the only finding which can be given against the accused is that of not guilty.
SC No.748/2019 State v. Brijesh Page No. 13/14Conclusion/Findings :
35.Accordingly, accused Brijesh is acquitted from the offence punishable under section 307 IPC read with section 34 IPC.
36.Accused has furnished bail bonds in compliance of Section 437A Cr.P.C. Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date:
2022.12.21 11:38:32 -0500 ANNOUNCED IN THE OPEN (NEHA PALIWAL SHARMA) COURT ON: 20.12.2022 ASJ-05 (West), THC, Delhi.
It is certified that this Judgment contains 14 pages and each page bears my signatures. NEHA Digitally signed by NEHA PALIWAL PALIWAL SHARMA SHARMA Date:
2022.12.21 11:38:46 -0500 (NEHA PALIWAL SHARMA) ASJ-05 (West), THC, Delhi 20.12.2022 SC No.748/2019 State v. Brijesh Page No. 14/14