Delhi District Court
State vs Anwar on 23 September, 2017
IN THE COURT OF SHRI RAKESH TEWARI, DISTRICT & SESSIONS JUDGE (EAST), KARKARDOOMA COURTS: DELHI SC No. 341/16 FIR No. 129/2013 PS : Pandav Nagar U/S 307/34 IPC State Versus Anwar S/o late Sh. Arsad R/o 32/330, Trilok Puri, Delhi. Date of institution : 18.07.2013 Date of order reserved : 14.09.2017 Date of Decision : 23.09.2017 JUDGMENT
1. The case of the prosecution in brief is that, SI Vinay Kumar of PS Pandav Nagar received DD No.65B dated 11.3.2013 and he alongwith Ct. Vinod reached to the spot at Shashi Garden, Bus Stand, Sanjay Jheel, within the jurisdiction of said PS, where he found that in front of Booster Pump House of the Delhi Jal Board, blood was lying at the ground in a considerable quantity and one SC No. 341/16 State Vs. Anwar Page No. 1 of 17 trail of the blood was going inside the said Booster Pump and some syringes, injection, one blood stained cloth and one broken garland were lying at the spot and the Beat Ct. Narender met him and informed that the injured has been removed by a vehicle to the LBS Hospital. No eye witness could be found at the spot. The spot was got preserved and crime team was informed and Ct. Narender was left for the safety of the spot and the said SI alongwith Ct. Vinod reached the said hospital and obtained the MLC of one unknown person, who was under treatment and was admitted to the said hospital with the alleged history of assault and patient was profusely bleeding through right side of neck and the said patient was unfit for making statement and no eye witness could be found at the hospital also nor the identity of the injured could be established and the said SI in the said circumstances made his endorsement below the said DD and gave the rukka to Ct. Vinod for the registration of the FIR U/S 307 IPC and accordingly, the FIR was registered.
2. During investigation by the said SI, he sealed the blood stained clothes of the said injured given by the said hospital and exhibits were also seized on the spot. On 12.1.2013, the identity of the said injured could be established as Rehan S/o Mohd. Karim R/o E36 B130, Block 3233, Ambedkar Camp, Trilok Puri, Delhi. On 13.3.2013, upon a secret information, the accused SC No. 341/16 State Vs. Anwar Page No. 2 of 17 Anwar was arrested in the case and at his instance, weapon of offence was recovered and the clothes worn by him at the time of incident was got recovered from house No.30/330, belonging to the accused and on 8.4.2013, the statement of injured Rehan was recorded and on 23.4.2013, the statement of the injured was got recorded U/S 164 Cr.P.C.
3. As per the said statement of said injured, that on 11.3.2013 one Abid and Anwar came to him and took him to Sanjay Jheel and Abid and Anwar were addicted to intoxication and both of them alongwith him went to Shahsi Garden and there from a medical store, they purchased an injection and they took the intoxicant from the same but did not give the same to him and when he asked for the said intoxicant, they refused and subsequently, Abid gave him two points of intoxicant due to which he came under the influence of said intoxicant and thereafter, said Anwar and Abid cut his neck with a blade. The said Abid could not be arrested. Exhibits were sent to FSL for opinion which were filed subsequently.
4. On the basis of the said charge sheet, my ld. Predecessor vide his order dated 23.8.2013 framed a charge under Section 307/34 IPC against the accused, to which he pleaded not guilty and claimed trial.
5. The prosecution in its support has examined thirteen SC No. 341/16 State Vs. Anwar Page No. 3 of 17 witnesses which have been discussed below.
6. The statement of the accused under Section 313 Cr.P.C. was recorded wherein he pleaded innocence and claimed that PW Mohd. Rehan and PW Raju Shukla have deposed falsely against him and they are planted witnesses.
7. The accused in his defence has examined one defence witness, namely, Ms. Gudiya the DW1, his sister, who deposed that on 11.3.2013, the accused was at his house and was not well for two three days and that on 13.3.2013 at about 9.30 a.m., the accused was picked up by the police officials and had taken him away and at that time, the mother of the witness namely, Smt.Usnara Begum was also present but subsequently she had expired and that when she asked the police about taking her brother with them, then the police officials told that after fifteen minutes of enquiry, they would be sending the accused back and that when they (the defence witness) went to the PS, they were told that accused had been sent to Tihar Jail and that they could meet the accused there only. In her cross examination on behalf of the State by the ld. Chief Prosecutor, the DW1 could not tell as to why the accused was sent to Tihar Jail. She replied that at present she knew that accused had been put behind the bars for the offence causing injury with some object on the neck of some person and that she came to know about the said facts after about SC No. 341/16 State Vs. Anwar Page No. 4 of 17 one month from 13.3.2016 but she did not move any complaint against the said detention of the accused either before the police or before the court of law as her mother's condition deteriorated.
8. I have heard the ld. Chief Prosecutor for the State and Sh. A.K. Bali, ld. Amicus Curiae, counsel for the accused and perused the record.
9. Coming to the official witnesses, PW2 HC Dharam Pal was the duty officer, who proved the FIR as Ex.PW2/A and his endorsement on the rukka (the complaint) as Ex.PW2/B.
10. PW3 Ct. Vinod deposed regarding accompanying SI Vinay Kumar on 11.3.2013 to the said spot and meeting of Beat Ct. Narender at the spot, removal of the injured to the LBS Hospital, the articles lying at the spot, after leaving Ct. Narender at the spot going to LBS Hospital, collecting MLC of unknown injured, seizure of sealed parcels in the LBS Hospital stated to be containing blood stained clothes of the injured, seized vide memo Ex.PW3/A, the taking of rukka by him given by the said SI, to the PS for the registration of the FIR and returning back and handing over the original rukka and copy of the FIR to the said SI. He also deposed regarding crime team inspecting the spot, seizure of the blood, seizure of some blood stained clothes, empty labels of medicine Avil 10 ml. and two syringes with needle from the spot vide memo Ex.PW3/B. SC No. 341/16 State Vs. Anwar Page No. 5 of 17
11. In his cross examination on behalf of accused, PW3 replied that he left the PS at about 7.00 p.m. but he did not remember the DD Number whereby the departure entry was made and he reached the spot at about 7.15 p.m. where no public person was available at that time and he left for the hospital at about 8.45 p.m. and crime team did not visit the spot in his presence and that the rukka was handed over to him in the hospital at about 9.00 p.m.
12. Ct. Virender deposed with regard to his joining in the investigation with SI Vinay Kumar, on 13.3.2013 and reaching Shashi Garden Turning where the secret informer gave the information that the boy who was seen with the injured of the present case, was standing at some distance and the said informer pointed out the boy and then they apprehended him who disclosed his name as Anwar S/o Arshad Ali, the accused present in the court, who was interrogated and his disclosure statement was recorded as Ex.PW4/A. Thereafter, he was arrested vide memos Ex.PW4/B and Ex.PW4/C and that the accused led the police party near bushes at ITI Gate and pocket V, Mayur ViharI, and got recovered a paper cutter and told that it was the same knife which was used for cutting the throat of the injured Rehan and the said knife was blood stained also and that the sketch of the same is Ex.PW4/D and was seized vide memo Ex.PW4/E and thereafter the accused took the police party to his house from where he got SC No. 341/16 State Vs. Anwar Page No. 6 of 17 recovered his blood stained brown colour Tshirt and blue colour jeans pants, both blood stained, which he was wearing at the time of causing injury to the said injured and the said clothes were seized vide memo Ex.PW4/F and at the time of the said recovery, one public witness Mohd. Faim was also present. PW4 identified the paper cutter knife as Ex.P1 and the said clothes of the accused as Ex.P2 and Ex.P3.
13. In his cross examination on behalf of the accused, he replied that the IO had not informed the duty officer regarding the secret information received, in his presence and that they stayed at the place of arrest for about 1520 minutes and left the same at 5.30 p.m. He admitted that no public person from the local area was joined in the proceedings. He further replied that at the house of accused, no neighbour gathered there and that family members of the accused were not joined in the proceedings at the house of the accused nor any neighbour was joined. He replied that IO had not prepared the site plan of place of recovery of knife in his presence. He replied that seal after use was handed over to him but no memo to that effect was prepared.
14. PW6 HC Raghuvir Singh is the witness, who first reached the spot on the information of the passerby as he was on patrolling duty and found that one person was lying in injured condition and was unconscious, having injury on his neck and blood was oozing SC No. 341/16 State Vs. Anwar Page No. 7 of 17 out of the same and thereafter, the injured was put in a vehicle ERV and put him to the LBS Hospital. PW7 Ct. Narender again deposed the facts with regard to the date 11.3.2013 in his examination in chief.
15. PW8 Dr. Sudhir Prasad prepared the MLC of the said injured Ex.PW8/A. PW9 Ms. Babita Punia, ld. MM recorded the statement of the injured Under Section 164 Cr.P.C. vide his certificate Ex.PW9/B and copy of the same was given to the IO on his application Ex.PW9/C. PW10 is the Senior Scientific Officer (Biology), FSL Rohini, who examined the blood on gauze piece, dirty dark brown gauze cloth piece, weapon of offence i.e. the knife, Tshirt and jeans pants, brownish foul smelling shirt and baniyan and gave her report Ex.PW10/A and Ex.PW10/B and it revealed in the said report that the human blood was detected on the said gauze pieces, knife, Tshirt, jeans pants, the shirt and baniyan and except the said shirt and baniyan (belonging to the injured), the blood group was found of the Group B on all the said objects.
16. PW11 is again SSO (Biology), FSL Rohini, who submitted his detailed DNA reports as Ex.PW11/A and Ex.PW11/B, as per which the blood was detected on gauze cloth piece (from the place of occurrence), gauze cloth piece (from the spot where victim fell down), knife, TShirt and jeans (belonging to the accused), shirt SC No. 341/16 State Vs. Anwar Page No. 8 of 17 and baniyan (belonging to the injured) and it is further opined him that on the said gauze cloth pieces, the knife, Tshirt of accused, shirt and baniyan of said injured were subjected to DNA isolation, but DNA could not be isolated from shirt and baniyan of the injured due to degradation and he gave his conclusion that DNA profiling performed on the exhibits is sufficient to conclude that DNA profiles generated from the source of exhibits i.e. the gauze cloth pieces are matching with DNA profile generated from the knife and Tshirt of the accused.
17. PW13 Dr. Abhishek, identified the handwriting and signatures of Dr. Wasim, who has given final opinion with regard to nature of injury as grievous on the MLC Ex.PW8/A and he identified his signatures at point Y on the same.
18. PW12 is the IO Insp. Vinay Kumar who deposed regarding the said investigation on 11.3.2013 and proved the DD No.65B as Ex.PW12/A, his rukka Ex.PW12/B, seizures made by him from the spot and from the hospital, his site plan of the spot as Ex.PW12/C, recording of the statement of one public witness Raju Shukla, revealing the identity of the injured by his brother Mohd. Faim. He further deposed regarding the arrest of the accused on 13.3.2013, recovery of the said articles at the instance of the accused from the said places, sending of exhibits to the FSL, recording of statement of the injured Rehan on 8.4.2013 and under SC No. 341/16 State Vs. Anwar Page No. 9 of 17 Section 164 Cr.P.C. on 23.4.2013 and filing of FSL results and he identified the exhibits Ex.P1 to P3 and gauze pieces as Ex.P4 and Ex.P5.
19. In his cross examination on behalf of the accused, PW12 admitted that there are no names of the injured as well as assailants in the DD No.65B. He admitted that the injured was drug addict. He admitted that no local person was joined in the investigation at the time of arrest of the accused and recoveries effected from him.
20. Coming to the public witnesses, PW1 Raju Shukla deposed that on 11.3.2013 at about 6.00 or 6.15 p.m., he went to Booster Pump House to take water where he saw that accused present in the court and one another boy were sitting in a corner near the boundary wall of Booster Pump House and they were taking intoxicating substance through injection syringe and that he asked the accused and the other boy not to do such thing there and then he returned back to his point and that after about 3045 minutes, he saw public persons gathered there and saw that one boy was lying in injured condition having injury on his neck and blood was oozing and that someone informed the police, who reached there and took the injured to the hospital and injured was wearing T shirt and blue colour pants and was of a slim physique and that injured had also come to the court on the day of his deposition. In SC No. 341/16 State Vs. Anwar Page No. 10 of 17 his cross examination on behalf of accused, he could not produce any document to the police that he was working as watchman but he volunteered that his employer had also come to the court on that day. He replied that he did not give the name of his employer in his statement and that his employer was not present when his statement was recorded.
21. PW5 Mohd. Rehan is the injured, who deposed in his examination in chief almost on the same lines as narrated above and he further deposed that accused Anwar assaulted him with surgical blade on his neck and then accused Anwar gave blade to Abid who again assaulted him with surgical blade on his neck and that he raised alarm and that accused Anwar and Abid ran away from there and that somehow he managed to reach to the road and two women were passing from there, having seen him pooled in blood, informed the police and that PCR Van reached the spot, which took him to the hospital and that he remained under treatment for about thirty three days and that he had identified the accused Anwar in the court when he (the witness) came to the Karkardooma Court for affidavit and that lateron his statement was recorded by the ld. MM also and he proved his statement under Section 164 Cr.P.C. as Ex.PW5/A.
22. In his cross examination on behalf of the accused, PW5 replied that when he was assaulted, he became unconscious. He SC No. 341/16 State Vs. Anwar Page No. 11 of 17 replied that they had purchased Avil injection and syringe at about 4.30 p.m. from Block32, Trilok Puri and that he did not know the name of medical store but he could point out the same. He replied that they had purchased smack from Block32 from a house and that he had not told the police about the person from whom they purchased smack. He further replied that his statement was recorded by the police after discharge from the hospital on the same day at his house at about 12.00 noon. He replied that he had stated to the police that accused Anwar boiled the Avil injection with heroine and kept the same for cooling and then put the same in syringe and he was confronted with his statement Ex.PW5/DA, wherein it was not so found recorded. He further replied that he had stated to the police that accused Anwar gave dose of heroine to him but Anwar and Abid did not take dose and after few minutes, they again gave their dose to him through injection and then was also confronted with his previous statement Ex.PW5/DA wherein it was not so recorded. He further replied that he had stated to the police that two women met him on the road and they informed the police and this was also not found recorded in his previous statement Ex.PW5/D. He admitted that when he was being assaulted, he was under intoxication and was not conscious. He replied that he usually came to the Karkardooma Court on each date of hearing whenever he receive the summons. He further SC No. 341/16 State Vs. Anwar Page No. 12 of 17 replied that he did not come to the court for any affidavit and that police had shown him the accused in the Karkardooma Court and that when he came to the court for giving his statement, IO accompanied him and told about his statement.
23. Coming to the recovery aspect of knife Ex.P1, it is admitted case of PW4 in his cross examination that no secret information was recorded into writing nor it was informed to the duty officer of the PS and no public person from the local area was joined in the proceedings by the IO. Similarly, IO PW12, has also admitted in his cross examination that he has not joined any local person at the time of arrest of accused and he has not prepared any site plan of the spot from where the knife Ex.P1 was recovered. Moreover, as per the seizure memo of the knife Ex.PW4/E, place i.e. bushes between the drain in front of the ITI Khichripur, and ITI, was open space accessible to all and as such, the recovery of knife at the instance of accused is not only doubtful but not worth relying.
24. Coming to the recovery of alleged blood stained clothes of the accused from his house, again PW4 admitted that no neighbour was called to join the proceedings while preparing the seizure memo of the shirt and pants of the accused nor any site plan of the place of recovery was prepared by the IO. Moreover, Mohd. Faim as per admitted case of PW4, who met the police team in front of 3233 Block, Jhuggi Trilok Puri, was cited as a SC No. 341/16 State Vs. Anwar Page No. 13 of 17 witness nor examined in the case. Similarly, IO PW12 also admitted that no neighbour or local resident was joined while preparing the seizure memo of the clothes of accused Ex.PW1/F.
25. Coming to the scientific investigation, FSL result of Biology Division Ex.PW10/A and Ex.PW10/B established that blood lifted from the spot, knife, Tshirt and pants of the accused were having human blood of 'B' Group but so far as the shirt and baniyan of the victim are concerned, the blood on the same could not match with the blood on the clothes of accused or on the knife or the blood lifted from the spot, as there was no reaction.
26. So far as the DNA analysis is concerned vide report Ex.PW11/A and Ex.PW11/B, the DNA profile generated from the source of exhibits i.e. blood lifted from the spot was found matched with the DNA profile generated from the sources of exhibits i.e. knife and Tshirt of the accused but the DNA could not be isolated from the shirt and baniyan of the victim due to degradation. From both set of FSL result, the connection could not be established beyond doubt between the clothes of injured with the alleged blood of the injured lifted from the spot, on the knife as well as on the Tshirt of the accused.
27. Coming to the question as to who informed the police regarding the incident. There are many versions on record to answer this question. PW1 Raju Shukla says in his deposition that SC No. 341/16 State Vs. Anwar Page No. 14 of 17 'someone' informed the police. In DD No.65B, which is Ex.PW12/A, does not mention as to who informed the police, although phone No. 9911878060 is mentioned in the said DD but no investigation has been carried out as to whom this mobile phone number belonged. As per the injured PW5, two women passing from there having seen him pooled in blood, informed the police. PW6 HC Raghuvir Singh deposed that when he was on patrolling duty, one passerby informed him that near Bus Stand, Booster Pump House, Mayur ViharI, one person was lying in injured condition. PW7 Ct. Narender says that on 11.3.2013, he was on beat duty in Jhuggi area near Shahsi Garden and at about 6.45 p.m. when he reached near Bus Stand, Pocket V, Shashi Garden, Mayur Vihar, he found a person in injured condition. From this aspect also, dent is created on the story of prosecution.
28. Coming to the conduct of PW1 Raju Shukla, a watchman deployed at the said Booster Pump House, PocketV, Mayur ViharI, who although claimed that he first asked the accused and injured not to indulge in taking intoxication but after about 3045 minutes, when he saw one boy was lying in injured condition, he did not inform the police. The person who by nature of his duty as a watchman of the premises, should have informed the police regarding the incident, failed in his duty to inform the police.
29. Coming to the deposition of injured PW5, although, his SC No. 341/16 State Vs. Anwar Page No. 15 of 17 presence alongwith accused has been established by PW1 Raju Shukla at the spot in his deposition but improvement made by him in his deposition with regard to boiling of injection by the accused Anwar with heroine, keeping the same for cooling and then putting the same in syringe was not found mentioned in his previous statement Ex.PW5/DA nor it is part of his statement under Section 164 Cr.P.C. His deposition that accused Anwar gave dose of heroine to him but Anwar and Abid did not take dose and after few minutes, they again gave their dose to him through injection, was not found recorded in his said two previous statements. The fact that two women met him on the road and they informed the police was again not found recorded in his previous statement. Further, in his examination in chief, he claimed to have identified the accused Anwar in the court when he came to the Karkardooma Court for affidavit but in his cross examination, he clearly denied to have come to the court for any affidavit and admitted that police had shown him the accused at the court and IO accompanied him at the time of making his statement to the court and IO told about his statement.
30. Injured PW5 in his cross examination categorically admitted that when he was being assaulted, he was under intoxication and was not conscious. Admission of this, state of mind by the injured go to create a reasonable doubt with regard to his alleged story of SC No. 341/16 State Vs. Anwar Page No. 16 of 17 accused cutting his neck with the knife Ex.P1. Moreover, knife Ex.P1 was never put to him to be identified as the same with which the injury was inflicted upon him.
31. From the above said discussion, I am of the considered opinion that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt and as such, benefit of doubt is given to the accused and he is acquitted of the charge under Section 307/34 IPC. His PB and SB are hereby discharged. The accused be set at liberty forthwith, if not wanted in any other case. File be consigned to record room.
Announced in open court
on 23.09.2017 (RAKESH TEWARI)
District & Sessions Judge (East)
Karkardooma Courts, Delhi
SC No. 341/16
State Vs. Anwar Page No. 17 of 17