Delhi District Court
State vs Firoz Khan on 13 March, 2026
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 730/2017)
FIR No. 175/2017
Police Station Sadar Bazar
Charge-sheet filed under Section 307 IPC.
Charge framed against accused under 307 IPC.
Section.
State Versus Firoz Khan,
S/o Sh. Makhmali Khan,
R/o 7838, Nai Basti,
Bara Hindu Rao, Delhi.
...Accused.
Date of Institution of case 10.10.2017
Date of Arguments 27.02.2026 & previous dates.
Judgment reserved on 27.02.2026
Judgment pronounced on 13.03.2026
Decision Acquitted
JUDGMENT
1. Accused Firoz Khan is facing trial for the offence punishable under Sec. 307 IPC. The story of the prosecution is that on 29.06.2017 at about 06:30 pm, at Eidgah Park, near Kabir Mandir, accused attempted to cause death of Mohd. Jakir by assaulting on his neck by knife with such intention and under FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 1 of 43 such circumstances that if by the said act, accused had caused death of abovesaid Mohd. Jakir and he would have been guilty of murder.
2. The brief facts which are borne out from the record of the case are that on 29.06.2017, on assignment of DD No. 29A, Ex. PW-7/A regarding stabbing to the brother of the PCR caller, PW-13 SI Devender proceeded to Jeevan Mala Hospital where he collected MLC of injured Mohd. Jakir, Ex. PW-2/A who was found unfit for statement. During proceedings, PW-13 SI Devender collected one sealed parcel containing blood stained clothes of injured from concerned doctor which was seized by him vide seizure memo Ex. PW-13/A. Thereafter, PW-13 SI Devender tried to find eyewitness but no eye witness could be found in the hospital and thereafter he prepared rukka Ex. PW-13/B by endorsing DD No. 29A and got the present case registered through PW-9 Ct. Sachin at PS Sadar Bazar.
3. During investigation, one person namely Mohd. Salim met IO/PW-13 SI Devender outside the hospital, who informed IO that he was present at the spot at the time of incident and he also informed about the accused. Thereafter IO recorded statement of Mohd. Salim, Ex. PW-13/C and he along with Mohd. Salim and Ct. Sachin went to the spot of incident where he prepared site plan, Ex. PW-3/A at instance of Mohd. Salim. During investigation, on 30.06.2017, IO/PW-13 SI Devender along with Ct. Hari Om went to Jeevan Mala Hospital where injured was found fit for statement and accordingly, he recorded statement of FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 2 of 43 injured, Ex. PW-13/D. Thereafter IO/PW-13 SI Devender returned to Police Station where accused Firoz Khan was found present with ASI Surender. IO briefed the facts to ASI Surender and he pointed out towards Firoz Khan and in the meanwhile Mohd. Salim also came to the Police Station and he also identified accused Firoz Khan. Thereafter, IO/PW-13 SI Devender arrested accused Firoz Khan vide arrest memo, Ex. PW-3/B, conducted his personal search, Ex. PW-3/C and IO also interrogated him and recorded his disclosure statement, Ex. PW-12/A. During investigation, accused pointed out spot of incident vide pointing out memo Ex. PW-12/B and got recovered weapon of offence i.e. knife from underneath a car parked at Eidgah Road. Thereafter, IO prepared sketch of recovered knife, Ex. PW-12/C and seized the same vide seizure memo Ex. PW-12/D. During investigation, IO obtained blood sample of injured from hospital which was seized by him vide seizure memo Ex. PW-10/A, sent the exhibits to FSL for expert opinion and recorded statements of PCR caller as well as witnesses. IO also obtained opinion about nature of injury on the MLC of injured which was opined as 'simple' by concerned doctor. On completion of investigation, charge-sheet was filed by the IO before the court through SHO. After obtaining FSL result, supplementary charge-sheet was also filed before the court through SHO.
4. Vide order dated 03.10.2017, copy of the charge-sheet under Section 207 Cr.P.C was supplied to the accused by the FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 3 of 43 court of Ld. MM and vide order dated 06.10.2017, the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 07.12.2017 the Ld. Predecessor was pleased to frame charge under Sec. 307 IPC against accused to which he pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined 13 witnesses. The testimonies of prosecution witnesses along with its nature has been discussed briefly in the following paragraphs.
7. PW-1 Mohd. Zakir, was the injured in the present case. He deposed that on 29.06.2017 at about 04:30 pm when he was sitting in Eidgah Park and in the meantime accused Firoz who was previously known to him for the last about 7-8 years came to him. He further deposed that Firoz was in drunk condition and he inflicted injuries on his left side of his neck and left shoulder with key (chabi), which auto driver used for the purpose of cleaning the plug. He further deposed that blood started oozing out from his both injuries. He further deposed that one Saleem who was his neighbour was present in the park and he along with him went to Jeevan Mala Hospital and he was admitted there and got treatment. He further deposed that the hospital staff called the police and police officials met him there and recorded his statement. He further deposed that his clothes got blood stained and same were seized by the doctors in the hospital. This witness correctly identified accused as well as case property during his deposition before the court. This witness was cross-examined by FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 4 of 43 Ld. Addl. PP for the State in which he admitted that while he and Firoz were playing the card, some hot words were exchaged between them and accused Firoz threatened him and when he stopped him, he stated that 'tu bada dada banta hai, mai aaj tera kaam tamam kar dunga' and while stating so he took out knife from the right pocket of his Kurta, which was in key ring. He also admitted that accused inflicted the injury from his left side neck and left shoulder with the abovesaid knife. He also admitted that after sustaining the injuries, he fell down on the ground and accused had stated that 'main tujhe jhuta faswa dunga'. He denied the suggestion that accused had also himself inflicted injuries on his body with the same knife. He admitted that after causing injuries to him accused ran away towards the Eidgah. He also admitted that on the way to hospital, his brothers Sakir, Sajid and Kasif also met him and accompanied him to the hospital. He also admitted that he was taken to Hindu Rao Hospital by the police where his blood sample were taken on 18.07.2017. In his cross-examination on behalf of accused, he denied the suggestion that accused was not gambling by playing cards or that the accused was not in durnken condition. He deposed that police did not show the knife which was used by the accused to cause injury upon him. He denied the suggestion that there was a money dispute between him and the accused and on the day of incident, the quarrel took place on account of the said money dispute. He also denied the suggestion that on the day of incident, he had initiated the quarrel and during the quarrel scuffle took place FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 5 of 43 between them and due to the said scuffle, he got injuries by accident with the articles lying on the ground. He also denied the suggestion that he inflicted injuries upon accused by the abovesaid knife, Ex. PW-1/P2. He also denied the suggestion that he was falsely implicating accused in the present case so that accused could not demand his money from him. This witness was also confronted with his statement recorded under Sec. 161 Cr.PC, Ex. PW-1/A.
8. PW-2 Dr. Nikunj Bansal, Consultant Surgeon, Jeewan Mala Hospital, opined about nature of injury on MLC of injured Zakir, Ex. PW-2/A as 'simple'. In his cross-examination, he deposed that without seeing the 'key', he could not state whether the injury in question could have been inflicted from the said device. He also deposed that it was possible that injury may be self inflicted. He denied the suggestion that the MLC was false and fabricated.
9. PW-3 Mohd. Salim, was the eyewitness of incident. He deposed that he did not remember the date of the incident, however, the incident took place eight or nine months ago. He further deposed that he went for a walk at Eidgah Park which was situated near Kabir Mandir. He further deposed that at about 06:30 pm, he saw 'hathapai' going on between accused Firoz Khan and Mohd. Zakir and accused Firoz Khan had given injury to Mohd. Zakir by small knife (Chhuri) which he had taken out from his right side pocket of his trousers. He further deposed that accused had inflicted knife injury to Mohd. Zakir on his right FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 6 of 43 neck, left side chest and right side chest. He further deposed that he had taken Mohd. Zakir to the hospital and his treatment was started there. He further deposed that he was with Mohd. Zakir for some time and thereafter he left the room and went to his residence. He further deposed that he received telephone call from Mohd. Zakir and he again visited Jeevan Mala Hospital where police met him and made inquiries from him and recorded his statement. He further deposed that he visited the spot of occurrence and he had shown the spot of occurrence to the police and police had prepared site plan, Ex. PW-3/A. He further deposed that when he took Mohd. Zakir to the hospital, Mohd Haroon, Kasif and Sakir had also went to the hospital. He also deposed that he could not identify the knife, if shown to him. This witness was cross-examined by Ld. Addl. PP for the State in which he deposed that he had not visited the Police Station on 30.06.2017 nor he identified the accused there. He denied the suggestion that on 30.06.2017 at about 04:00 pm, he had visited Police Station where accused Firoz Khan was present and he identified him. He admitted that arrest memo and personal search memo of accused Firoz Khan exhibited as Ex. PW-3/B & Ex. PW-3/C bore his thumb impression at point 'A' respectively. He denied the suggestion that accused was arrested in his presence by the police officials. In his cross-examination on behalf of accused, he deposed that he did not know for what reason the 'hathapai' had taken place on that day between Mohd. Zakir and accused Firoz. He denied the suggestion that Mohd. Zakir caused inury to accused Firoz or that accused Firoz did not cause any FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 7 of 43 injury to Mohd. Zakir. He also denied the suggestion that Mohd. Zakir received injuries due to an accident in the said 'Hathapai'.
10. PW-4 Mr. Kasif, was relative of injured as well as caller of 100 number. He deposed that he did not remember the exact date, however, eight or nine months ago, at about 04:00-05:00 pm, he was present at his residence and he received a mobile phone call from the mobile phone number of Mohd. Zakir. He further deposed that the call was made by Mohd. Salim who told that someone had given knife injury to Mohd. Zakir. He further deposed that he proceeded to the hospital and on the way to Jeevan Mala Hospital, Mohd. Zakir and Mohd. Salim met him. He further deposed that thereafter they all reached Jeevan Mala Hospital where treatment of Mohd. Zakir was started and he made call on 100 number and police recorded his statement. This witness was not cross-examined on behalf of accused despite opportunity given to him.
11. PW-5 Mr. Sakir, was brother of injured. He deposed that he did not remember the exact date, however, eight or nine months ago at about 05:30-06:00 pm, he was sitting outside his house. He further deposed that at that time, some persons in the locality informed him that accused Firoz had given knife injury to Mohd. Zakir. He further deposed that he was also informed that the said person were shifting Mohd. Zakir to Jeevan Mala Hospital and he proceeded to the hospital. He further deposed that on the way to Jeevan Mala Hospital, Mohd. Zakir, Mohd. Salim and Kasif met him and they got Mohd. Zakir admitted in FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 8 of 43 the hospital. He also deposed that police came to the hospital and recorded his statement. This witness was not cross-examined on behalf of accused despite opportunity given to him.
12. Dr. Nitesh Kumar Singh, Casualty Medical Officer, Jeevan Mala Hospital deposed that on 29.06.2017 at about 06:45 am, one Mohd. Zakir was brought to the hospital. He further deposed that he examined the patient vide MLC No. 113/2017, Ex. PW-6/A and the patient was referred to Surgery Department. In his cross-examination, he deposed that he could not comment on whether the injuries mentioned in the MLC were possible by a key of motorcycle.
13. PW-7 ASI Sanjeev Kumar, was the Duty Officer at PS Sadar Bazar. He proved copy of DD No. 29A, copy of present FIR, his endorsement on rukka and certificate under Sec. 65B of The Indian Evidence Act as Ex. PW-7/A to Ex. PW-7/D. This witness was not cross-examined on behalf of accused despite opportunity given to him.
14. PW-8 HC Jitender Singh, was MHC(M) at PS Sadar Bazar. He proved entries in register no. 19 & 21 regarding movement of case properties exhibited as Ex. PW-8/A to Ex. PW-8/D. He also proved acknowledgment received from FSL as Ex. PW-8/E. In his cross-examination, he admitted that he had made entry in register no. 19 in Column No. 4 on the basis of seizure memo. He also admitted that time of depositing the samples with him was FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 9 of 43 not mentioned in register no. 19. He denied the suggestion that all the entries in register no. 19 were ante-timed and ante-dated.
15. PW-9 Ct. Sachin, deposed that in June, 2017, he was posted as Constable at PS Sadar Bazar. He further deposed that he did not remember the date of incident, however, one day an information regarding stabbing was recorded at Police Station. He further deposed that he along with SI Devender went to the hospital where injured person met them. He further deposed that SI Devender searched for eyewitness and the relatives of injured person. He further deposed that one Saleem met them outside the hospital and he told the Investigating Officer about the incident. He further deposed that SI Devender prepared rukka and sent him to the police station and got the FIR registered. He further deposed that after registration of FIR, duty officer handed over him copy of FIR and the rukka and he took the same to Jeevan Mala Hospital and handed over the same to SI Devender. He further deposed that he along with SI Devender and Saleem went to the spot of incident where IO/SI Devender prepared site plan at instance of Saleem. In his cross-examination, he deposed that many public persons were present at the spot when they reached there. He also deposed that IO had asked those public persons to join the investigation but none had agreed and they had left the spot. He also deposed that he did not note down their names and addresses. He also deposed that no notice was served by the IO to those persons for not joining the investigation. He also deposed that no blood sample or blood stained earth control was lifted FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 10 of 43 from the spot by the IO. He also deposed that no public person had verified the factum of incident. He denied the suggestion that he never joined the investigation of this case.
16. PW-10 Ct. Ajeet Singh, deposed that on 18.07.2017, on direction of Investigating Officer, he took one Mohd. Zakir to Hindu Rao Hospital for collection of blood sample. He further deposed that in the hospital doctor took the blood sample and prepared MLC No. 4257/17 and handed over the same to him in one sealed parcel. He further deposed that he handed over the blood sample to IO which was seized by IO vide seizure memo Ex. PW-10/A. He further deposed that on 25.07.2017 on direction of IO, he took three sealed parcels and two sample seals from MHC(M) and deposited the same at FSL Rohini and after depositing the same he returned to PS and handed over acknowledgment to MHC(M). He also deposed that as long as exhibits remained in his custody, the same were intact and were not tempered with in any manner. In his cross-examination, he denied the suggestion that no blood sample of Mohd. Zakir was taken in his presence. He denied the suggestion that case property was tempered with during his possession.
17. PW-11 ASI Surender Kumar, deposed that on 29.06.2017, DD No. 2PP was assigned to him for inquiry. He further deposed that he went to Ram Manohar Lohia Hospital where he collected two MLCs of injured persons, however, injured persons namely Firoz and Mohd. Amir were not available in the hospital. He further deposed that he went to the residence of both the injured FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 11 of 43 persons but their houses were found locked. He further deposed that he contacted the person who had brought the injured persons to the hospital, on telephone and he told him that he would himself come to the Police Station. He further deposed that on the next day, at about 03:00 pm, accused Firoz came to the Police Station and after some time SI Devender also came to Police Station and told him that he was searching for one person namely Firoz. He further deposed that he told him that one Firoz had already come to the Police Station. He further deposed that he produced Firoz before SI Devender and he also produced both the MLCs before SI Devender. He also deposed that later IO recorded his statement. This witness correctly identified accused during his deposition before the court. In his cross-examination, he admitted that Firoz Khan had come to Police Station to lodge his complaint against the person who had beaten him. He denied the suggestion that police officer did not record his complaint deliberately. He also denied the suggestion that accused Firoz Khan was falsely implicated in this case.
18. PW-12 HC Hari Om, deposed that on 30.06.2017, he joined the investigation of the present case along with IO/SI Devender and went to Jeevan Mala Hospital where IO inquired from the injured and recorded his statement. He further deposed that thereafter they went to PS Sadar Bazar and in the PS, they met with accused Firoz Khan along with ASI Surender. He further deposed that IO interrogated accused Firoz Khan and during interrogation, one person namely Saleem also came at PS FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 12 of 43 Sadar Bazar, who identified accused Firoz Khan as attacker in the present case. He further deposed that IO recorded statement of Saleem and he along with IO and accused Firoz Khan went to the spot of incident i.e. Eidgah Ground, Sadar Bazar, Delhi where accused pointed out towards the place of incident. He further deposed that thereafter accused Firoz Khan led them towards the park near Eidgah gate where at the instance of the accused Firoz Khan, one knife was recovered from beneath a car which was parked there. He further deposed that along with the recovered knife, one key having mark of 'Hero Honda' was also attached. He proved arrest memo, personal search memo and disclosure statement of accused Firoz Khan as Ex. PW-3/B, Ex. PW-3/C & Ex. PW-12/A. He also proved pointing out memo of spot of incident by accused, sketch of recovered knife and its seizure memo exhibited as Ex. PW-12/B to Ex. PW-12/D. This witness correctly identified accused as well as case property during his deposition before the court. In his cross-examination, he deposed that he did not remember if any staff of Jeevan Mala Hospital was joined in the investigation at the time of recording of statement of injured Mohd. Zakir. He also deposed that he did not remember if the inquiry was made from ASI Surender as to why accused was sitting in the Police Station and whether accused himself reached there or he was brought to PS by ASI Surender. He also deposed that he did not know as to for which purpose Saleem reached at PS. He also deposed that Saleem was not with them at the time of recovery of knife. He also deposed that he did not remember if on the way to Eidgah Park from PS, any public FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 13 of 43 person was asked by the IO to join the Investigation. He also deposed that no public person was found present at the particular place of recovery of knife. He denied the suggestion that accused came to the PS to lodge the complaint against the injured and same was not registered. He also denied the suggestion that accused was falsely implicated in the present case by planting the case property upon him. He also denied the suggestion that on blank papers, the signature of accused were obtained and thereafter, same were converted into different documents.
19. PW-13 IO/SI Devender, was the Investigating Officer in the present case. He deposed that on 29.06.2017, on assignment of DD No. 29A, Ex. PW-7/A regarding stabbing to the brother of the PCR caller and who had been removed to Jeevan Mala Hospital, he proceeded to Jeevan Mala Hospital where Ct. Sachin also came and handed over copy of DD No. 29A to him. He further deposed that he collected MLC of injured Mohd. Jakir, Ex. PW-2/A who was found unfit for statement. He further deposed that he also collected one sealed parcel containing blood stained clothes of injured from concerned doctor which was seized by him vide seizure memo Ex. PW-13/A. He further deposed that he tried to find eyewitness but no eye witness could be found in the hospital and thereafter he prepared rukka Ex. PW-13/B by endorsing DD No. 29A and got the present case registered through Ct. Sachin at PS Sadar Bazar. He further deposed that one person namely Mohd. Salim met him outside the hospital, who informed him that he was present at the spot at FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 14 of 43 the time of incident and he also informed about the accused. He further deposed that he recorded statement of Mohd. Salim, Ex. PW-13/C and he along with Mohd. Salim and Ct. Sachin went to the spot of incident where he prepared site plan, Ex. PW-3/A at instance of Mohd. Salim. He further deposed that on 30.06.2017, he along with Ct. Hari Om went to Jeevan Mala Hospital where injured was found fit for statement accordingly, he recorded statement of injured, Ex. PW-13/D. He further deposed that thereafter he returned to Police Station where accused Firoz Khan was found present with ASI Surender. He further deposed that he briefed the facts to ASI Surender and he pointed out towards Firoz Khan and in the meanwhile Mohd. Salim also came to the Police Station and he also identified accused Firoz Khan. He further deposed that he arrested accused Firoz Khan vide arrest memo, Ex. PW-3/B, conducted his personal search, Ex. PW-3/C and recorded his disclosure statement, Ex. PW-12/A. He further deposed that accused pointed out spot of incident vide pointing out memo Ex. PW-12/B and got recovered weapon of offence i.e. knife from underneath a car parked at Eidgah Road. He further deposed that he prepared sketch of recovered knife, Ex. PW-12/C and seized the same vide seizure memo Ex. PW-12/D. He further deposed that he obtained blood sample of injured from hospital which was seized by him vide seizure memo Ex. PW-10/A, sent the exhibits to FSL for expert opinion and recorded statement of PCR caller Kashif, Ex. PW-13/E and of Mohd. Sakir, Ex. PW-13/F. He further deposed that he also obtained opinion about nature of injury on the MLC of injured FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 15 of 43 which was opined as 'simple' by concerned doctor. He further deposed that after obtaining FSL results, Ex. PW-13/G & Ex. PW-13/G1, supplementary charge-sheet was also filed before the court. This witness correctly identified accused as well as case property during his deposition before the court. In his cross- examination, he deposed that he visited the spot at around 10:00- 10:15 pm along with Mohd. Saleem and Ct. Sachin. He also deposed that many public persons were present in the park. He also deposed that he had not made inquiry from independent public persons available in park. He also deposed that he did not notice any CCTV camera in the park or outside the same, covering the spot of incident. He also deposed that he did not lift earth control since no blood was found scattered on the ground. He also deposed that he did not call or join those public persons present in park. He denied the suggestion that accused also suffered injuries in said quarrel of which he came there to tell. He denied the suggestion that accused had gone to the police station to lodge FIR against injured and his associates. He also denied the suggestion that police officials did not lodge the complaint of the accused deliberately in connivance of injured as well as his associates. He also deposed that he requested some public persons/passersby to join the investigation at the time of recovery of knife at the instance of accused. He also deposed that he did not serve any notice to any of those public person and he also did not write down their names or particulars. He also denied the suggestion that no such knife as alleged had been got recovered FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 16 of 43 by the accused. He also denied the suggestion that the accused pleaded his innocence which had not been recorded by him.
20. During trial, accused has admitted the genuineness of his MLC No. 3771/17, dated 30.06.20217, under Sec. 294 Cr.PC.
21. After closing of Prosecution Evidence, statement of accused was recorded under Sec. 313 Cr.PC, wherein he denied all the charges against him. Accused claimed that there was money transaction between victim and himself due to which the victim manhandled him and attacked him in such type of manhandling, the victim fell down. He further claimed that he did not cause any injury to the victim, however, victim caused injury upon him. He further claimed that he went to the Police Station to lodge the complaint against the victim but rather than lodging his complaint, police official arrested him and falsely in the present case.
22. After recording of statement of accused under Sec. 313 Cr.P.C, accused has examined one witness in his defence. The testimony of sole defence witness has been discussed in brief as under:-
23. DW-1 Mohd. Yunus, deposed that on 29.06.2017, accused Firoz came to Eidgah Park to demand his money back from injured Zakir who was gambling there. He further deposed that injured Zakir was in drunken condition and he became annoyed and started to quarrel physically with the accused. He further deposed that one friend of injured Zakir namely Adil hit the FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 17 of 43 accused with a glass bottle and a brick due to which accused Firoz injured. He further deposed that in that scuffle, injured Zakir did not sustain any injury, however, he fell down on earth. In his cross-examination, he deposed that he did not know which day was on 29.06.2017. He denied the suggestion that accused Firoz demanded money from Zakir. He also deposed that he did not know if accused Firoz Khan had moved any civil suit against Zakir. He denied the suggestion that he had been tutored by accused.
24. Final arguments were advanced by Sh. Shreyas Pragyanan, Ld. Addl. PP for the State and Sh. Habib Ahmad, Ld. Counsel for accused.
25. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that PW-1/injured Mohd. Zakir and PW-3 Mohd. Saleem have narrated the incident in detail and they have corroborated each other's version. He further argued that PW-2 Dr. Nikunj Bansal and PW-6 Dr. Nitesh Kumar Singh have proved the MLC of PW-1/injured Mohd. Zakir and opinion regarding the nature of injuries on his person. He further argued that weapon of offence i.e. knife has been recovered at instance of accused. He further argued that none of the prosecution witness has turned hostile. He also argued that the all the proceedings have been duly proved by the police witnesses and FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 18 of 43 the prosecution witnesses are of the sterling quality and hence accused should be convicted for the offence punishable under Section 307 IPC.
26. Per Contra Ld. Defence Counsel argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate his point, he argued that a scuffle had taken place between accused and PW-1/injured Mohd. Zakir and the PW-1/injured Mohd. Zakir was aggressor. He further argued that PW-11 ASI Surender Kumar has specifically deposed that accused Firoz Khan had come to the police station to lodge his complaint against the person who had beaten him. He further argued that MLC of accused Firoz Khan, Ex. PX-1 showing injuries on his person in the incident has been duly proved by the accused. He further argued that injuries sustained by the complainant is simple in nature and the accused has also sustained simple injuries on his person as per his MLC. He further argued that there are material contradictions in the testimonies of PW-1/injured Mohd. Zakir and PW-3 Mohd. Salim. He further argued that no independent public person was joined in the investigation at the time of recovery of weapon of offence. He further argued that motive for commission of offence has not been proved by the prosecution. He further argued that no opinion with respect to the recovered weapon qua the injuries sustained by the PW-1/injured Mohd. Zakir has been obtained. He further argued that the playing cards have not been seized by the IO. He further argued that DW-1 Mohd. Yunus has FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 19 of 43 specifically deposed that Zakir was in drunken condition and he become annoyed and started quarreling with the accused and one friend of injured Zakir namely Adil hit the accused with a glass bottle and due to which accused Firoz sustained injuries. He further deposed that Zakir fell down on the earth and sustained injuries. He further argued that since the prosecution has failed to prove its case against accused beyond reasonable doubts, accused should be acquitted for the offence punishable under Sec. 307 IPC.
27. In the present case, charge under Sec. 307 IPC has been framed against the accused. This Section has been elaborated as under:-
307. Attempt to murder:-
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and if hurt is cause to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts: When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.
28. I have thoughtfully considered the arguments advanced, FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 20 of 43 perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsel for accused.
29. PW-1/injured Mohd. Zakir and PW-3 Mohd. Salim are the star witnesses of the prosecution. PW-1/injured Mohd. Zakir is the injured in the present case while PW-3 Mohd. Salim is the eyewitness of the incident. The testimonies of both the witnesses are to be appreciated as per the established principle of law pertaining to the testimonies of injured and eyewitness.
30. PW-1/injured Mohd. Zakir deposed that on 29.06.2017 at about 04:30 pm, he was present in Eidgah park for walking and was sitting in the park and in the meantime accused Firoz came to him and inflicted injuries on his left side of neck and left shoulder. Thus, as per version of PW-1/injured Mohd. Zakir, the incident took place at 04:30 pm. However, PW-3 Mohd. Salim deposed that the incident took place at about 06:30 pm. There is material contradiction showing gap of about two hours with respect to the time of commission of offence in the testimonies of both the witnesses who were allegedly present at the spot of incident. This raises serious doubts on the prosecution story.
31. PW-1/injured Mohd. Zakir in his examination-in-chief deposed that he was sitting in the park and at that time accused Firoz came to him and inflicted injuries on left side of his neck and left shoulder. However, in his cross-examination by the Ld. FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 21 of 43 Addl. PP for the State he admitted that he and accused Firoz were playing cards and hot words were exchanged between them. Thus, there are material contradictions in the examination-in- chief and cross-examination of PW-1/injured Mohd. Zakir with respect to the same set of facts and out of two versions, only one version can be true i.e. either accused came to him and inflicted injuries on his person or he was already playing cards with the accused and thereafter some hot words were exchanged between them and then the incident took place. This raises serious doubts on the veracity of PW-1/injured Mohd. Zakir.
32. PW-1/injured Mohd. Zakir deposed that accused inflicted injuries on left side of his neck and left shoulder with a key (Chabi) which auto driver used for the purpose of cleaning the plug. Thus, as per version of PW-1/injured Mohd. Zakir given by him in his examination-in-chief, accused used key/chabi meant for cleaning the plug. PW-1/injured Mohd. Zakir in his examination-in-chief has not deposed that the injuries on his person were caused by a knife. However, in his cross- examination conducted by Ld. Addl. PP for the State, he stated that accused took out knife from right pocket of his kurta which was in a key ring and he inflicted injuries on his left side neck and his left side shoulder with the said knife. The weapon of offence produced before the court was one key of 'Hero Honda' with one small knife. The key/chabi used for cleaning the plug, the key of 'Hero Honda' and the knife are three different things and PW-1/injured Mohd. Zakir has given different versions with FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 22 of 43 respect to use of abovesaid articles/weapons in his examination- in-chief and in his cross-examination conducted by Ld. Addl. PP for the State. This raises serious doubts on the veracity of PW-1/injured Mohd. Zakir as well as on the prosecution story.
33. PW-1/injured Mohd. Zakir in his cross-examination conducted by the Ld. Addl. PP for the State deposed that accused took out knife from right pocket of his kurta. However, PW-3 Mohd. Salim who is eyewitness of alleged incident deposed that accused had taken out the knife from the right side pocket of his trouser. Thus, PW-1/injured Mohd. Zakir and PW-3 Mohd. Salim have given different versions with respect to the taking out of weapon of offence from different apparels worn by the accused. The contradictory versions of PW-1/injured Mohd. Zakir and PW-3 Mohd. Salim cannot co-exists and it raises serious doubts on their veracity as well as on prosecution story.
34. PW-1/injured Mohd. Zakir in his cross-examination conducted by Ld. Addl. PP for the State deposed that while he and accused were playing cards, some hot words were exchanged between them and accused Firoz threatened him. However, in his cross-examination on behalf of accused, he deposed that accused was gambling by playing cards. One person cannot gamble by playing cards with himself and hence either accused was gambling with the PW-1/injured Mohd. Zakir or with some other person but PW-1/injured Mohd. Zakir and PW-3 Mohd. Salim have not stated anything about such person with whom accused was gambling. Moreover, PW-3 Mohd. Salim has not deposed FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 23 of 43 that PW-1/injured Mohd. Zakir and accused were playing cards and accused was gambling in the park. PW-13 IO/SI Devender in his cross-examination deposed that he did not seize playing cards from the park. None of the prosecution witness has deposed that the playing cards were lying at the spot of incident. In these circumstances, the version of PW-1/injured Mohd. Zakir with respect to playing of card/gambling by accused cannot be relied upon.
35. PW-4 Mohd. Kasif deposed that at about 04:00-05:00 pm he was present at his residence and he received mobile phone call from mobile phone number of PW-1/injured Mohd. Zakir and the said call was made by Mohd. Salim who told him that someone had given knife injury to Mohd. Zakir. Thus, as per version of PW-4 Mohd. Kasif, the incident had taken place at about 04:00- 05:00 pm. However, as per the contents of rukka, Ex. PW-7/C, the alleged incident took place on 29.06.2017 at about 06:30 pm. There are material contradictions of time gap mentioned in rukka, Ex. PW-7/C and as stated by PW-4 Mohd. Kasif which raises serious doubts. PW-4 Mohd. Kasif also deposed that he made a call at 100 number. However, PW-1/injured Mohd. Zakir deposed that the hospital staff called the police. In the present case, on receiving call at 100 number, DD No. 29A, Ex. PW-7/A was registered at PS Sadar Bazar at about 19:05 pm. As per the contents of DD No. 29A, Ex. PW-7/A the caller i.e. PW-4 Mohd. Kasif stated that brother of caller was stabbed/hit with a churi and the injured was being taken to Jeevan Mala Hospital. PW-4 FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 24 of 43 Mohd. Kasif has deposed that Mohd. Zakir is his brother-in-law and hence the caller i.e. Mohd. Kasif is not the brother of Mohd. Zakir. As per the MLC of PW-1/injured Mohd. Zakir exhibited as Ex. PW-2/A, injured PW-1/injured Mohd. Zakir was admitted at Jeevan Mala Hospital on 29.06.2017 at about 06:45 pm i.e. 20 minutes before making call at 100 number and hence PW-4 Mohd. Kasif had stated wrong facts while making call at 100 number that the injured was being taken to the hospital at 19:05 pm while the injured had already been admitted there. This raises serious doubts on the veracity of PW-4 Mohd. Kasif.
36. As per the prosecution story, accused had himself inflicted injuries on his body with the knife used in the commission of offence. However, PW-1/injured Mohd. Zakir turned hostile on the said fact and denied the suggestion of Ld. Addl. PP for the State that accused had also himself inflicted injuries on his body with the same knife and he was confronted with his statement, Ex. PW-1/PA. This raises serious doubts on the prosecution story.
37. Motive is relevant under Sec. 8 of Indian Evidence Act. Motive is the force that moves a man to do a particular work. Generally there can be no action without any motive. Under Section 8 of Evidence Act, several factors including preparation, previous threat, previous altercation, previous litigation between the accused and the victim becomes relevant. The mere existence of motive is by itself is not an incriminating circumstance. Motive cannot be a substitute of proof however it is an corroborating factor in proving the case of the prosecution. The FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 25 of 43 motive for the commission of offence is of vital importance in a criminal trial and in cases based on circumstantial evidence motive itself will be a circumstance which the Court has to consider deeply. The existence of motive which operates in the mind of perpetrator may not be known to others and hence it has to be inferred from the facts and circumstances of this case.
38. Hon'ble Supreme Court of India in judgment titled as Sheo Shankar Singh Vs. State of Jharkhand and Anr cited as (2011) 3 SCC 654 observed as under:-
"15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of accused is fairly well settle by a long line of decision of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon the circumstantial evidence on one hand and those were relies upon the testimonies of the eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into background in cases where the prosecution relies upon and eye witness account of the occurrence. That is because if the Court upon a proper appraisal of the deposition of the eye witnesses comes to the conclusion that the version given FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 26 of 43 by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye witnesses is found unreliable or unworthy of credit, existence of motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye witness account does not lend strength to the prosecution case or fortify the Court in its ultimate conclusion proof of motive in such a situation certainly helps the prosecution and supports the eye witnesses."
39. In his examination-in-chief, PW-1/injured Mohd. Zakir has not explained the motive for the commission of offence. PW-1/injured Mohd. Zakir has simply deposed that accused came to him and he was drunked at that time. PW-3 Mohd. Salim has not deposed that accused was drunk at the time incident. He also deposed that accused inflicted injuries on left side of his neck and left shoulder with a key. PW-1/injured Mohd. Zakir has not deposed as to why accused caused injuries on his person. He has not deposed anything about any kind of previous enmity between them. However, in his cross-examination conducted by the Ld. Addl. PP for the State, PW-1/injured Mohd. Zakir has deposed that while he and accused were playing cards some hot words were exchanged between them and accused Firoz threatened him and when he stopped him, he said "tu bada dada banta hai, mai FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 27 of 43 aaj tera kaam tamam kar dunga". PW-1/injured Mohd. Zakir in cross-examination conducted by the Ld. Addl. PP for the State also deposed that the accused stated to him "mai tujhe jhuta faswa dunga". The abovesaid facts were not deposed by PW-1/injured Mohd. Zakir in his examination-in-chief and said facts have been brought on record by the prosecution through leading questions. This is a material improvement and hence the testimony of PW-1/injured Mohd. Zakir in this regard is not reliable. Accused has taken the defence that there was money dispute between accused and PW-1/injured Mohd. Zakir and the quarrel had taken place on the said account. However, PW-1/injured Mohd. Zakir has denied such kind of money dispute. Thus, the prosecution has failed to prove the motive for the commission of offence which has weakend the case of the prosecution.
40. PW-3 Mohd. Salim deposed that after admitting PW-1/injured Mohd. Zakir to hospital, he went to his residence and thereafter he received a telephone call from PW-1/injured Mohd. Zakir and he again visited Jeevan Mala Hospital where police met him. However, PW-1/injured Mohd. Zakir has not deposed that he called PW-3 Mohd. Salim to the hospital by making telephone call. Moreover, PW-1 was unfit for statement at the relevant time. PW-13 IO/SI Devender deposed that he tried to find eyewitness but no eyewitness could be found in hospital and he prepared rukka, Ex. PW-13/B by endorsing DD No. 29A, Ex. PW-7/A and got the case registered through Ct. Sachin.
FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 28 of 43 PW-1/injured Mohd. Zakir as well as PW-3 Mohd. Salim have specifically deposed that Shakir, Sajid and Kasif accompanied them to the hospital. Thus, Shakir, Sajid and Kasif had the knowledge that PW-3 Mohd. Salim was the eyewitness of the incident and PW-1/injured Mohd. Zakir may have also disclosed this fact to the IO in the hospital. It has already come on record that PW-3 Mohd. Salim was having mobile phone. In these circumstances, registration of FIR on the basis of DD No. 29A, Ex. PW-7/A instead on the statement of eyewitness PW-3 Mohd. Salim raises serious doubts on the prosecution story.
41. As per the prosecution story, PW-3 Mohd. Salim identified accused in the PS and thereafter accused was arrested. PW-13 IO/SI Devender deposed that on 30.06.2017, Mohd. Salim came to the Police Station and he identified accused Firoz Khan and he arrested him vide arrest memo, Ex. PW-3/B and conducted his personal search vide memo, Ex. PW-3/C. However, PW-3 Mohd. Salim has turned hostile on the abovesaid fact. PW-3 Mohd. Salim specifically deposed that he did not know about the arrest of accused and the accused was not arrested in his presence. He denied the suggestion that on 30.06.2017 at about 04:00 pm, he had visited the Police Station where accused Firoz Khan was present and he identified him. He specifically denied the suggestion that accused was arrested in his presence by the police official. He has also deposed that he cannot identify the knife, if shown to him. This raises serious doubts on the veracity of PW-13 IO/SI Devender as well as on the prosecution story.
FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 29 of 43
42. PW-1/injured Mohd. Zakir in his cross-examination conducted by Ld. Addl. PP for the State deposed that he and accused Firoz were playing cards and some hot words were exchanged between them and accused threatened him. Thus, as per version of PW-1/injured Mohd. Zakir before the quarrel, the altercation had taken place between them and accused had not directly attacked upon him. Accused has taken the defence that PW-1/injured Mohd. Zakir had initiated the quarrel and during the quarrel scuffle took place due to which PW-1/injured Mohd. Zakir sustained injury by accident with the articles lying on the ground. Accused has examined DW-1 Mohd. Yunus who deposed that injured Zakir was in drunken condition and he became annoyed and started to quarrel physically with accused. DW-1 Mohd. Yunus further deposed that one friend of injured Zakir namely Adil hit accused with a glass bottle and a brick due to which accused Firoz was injured. Accused Firoz has admitted his MLC, Ex. PX-1 under Sec. 294 Cr.PC. As per the MLC of accused Firoz Khan, Ex. PX-1 dated 30.07.2017, there were old injuries on right index finger, scalp and abdomen which were sustained by him on 29.06.2017 i.e. during the alleged incident. Thus, PW-1/injured Mohd. Zakir as well as accused Firoz Khan had sustained simple injuries on different parts of their bodies during the incident. In these circumstances, it cannot be said beyond reasonable doubt that only accused was the aggressor in the said quarrel. PW-3 Mohd. Salim deposed that he saw hathapai going on between accused Firoz Khan and Mohd. Zakir. As per MLC of PW-1/injured Mohd. Zakir, Ex. PW-2/A, FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 30 of 43 PW-1/injured Mohd. Zakir was brought to the hospital with the alleged history of fight that took place at around 06:30 pm at Eidgah park. Thus, as per MLC, Ex. PW-2/A also, PW-1/injured Mohd. Zakir was not brought to the hospital with the alleged history of assault or attack upon him. PW-11 ASI Surender Kumar deposed that on 29.06.2017 i.e. on the date of incident, on receiving DD No. 2PP, he went to Ram Manohar Lohia hospital where he collected MLCs of two injured persons namely Firoz and Mohd. Amir but they were not found in the hospital and hence he went to their houses which were found locked. Thus, as per version of PW-11 ASI Surender Kumar, two persons were injured in the alleged incident but the injury caused to the second person namely Mohd. Amir has not been explained by the prosecution. Moreover, DW-1 Mohd. Yunus, has also deposed that one other person namely Adil was also involved in the incident. This raises serious doubts on the prosecution story.
43. Accused has taken the defence that PW-1/injured Mohd. Zakir had initiated the quarrel and PW-1/injured Mohd. Zakir had sustained the injuries accidently by falling on the ground while he has sustainted injuries by the act of the PW-1/injured Mohd. Zakir. Accused Firoz Khan was not absconding. PW-11 ASI Surender Kumar in his cross-examination has admitted that accused Firoz Khan came to the Police Station to lodge his complaint against the persons who had beaten him and he was arrested in the PS. Thus, accused Firoz Khan had gone to the Police Station for lodging the complaint against PW-1/injured FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 31 of 43 Mohd. Zakir for causing injuries on his person mentioned in his MLC, Ex. PX-1. The IO and SHO were duty bound to entertain the complaint from accused Firoz Khan for taking appropriate legal action as per law but they did not perform their duties properly and acted on one sided complaint of PW-1/injured Mohd. Zakir. This raises serious doubts on the conduct of police officials as well as faulty investigation conducted by the IO without entertaining the complaint of accused. This has weakened the case of the prosecution.
44. As per prosecution story, one knife was recovered at instance of accused. The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in compliance with the law laid down in this regard by Hon'ble Supreme Court of India. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said Act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle under Sec. 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 32 of 43 offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
45. Hon'ble High Court of Delhi in Judgment titled as Mohammad Burhan Vs. Directorate of Revenue Intelligence, cited as 'MANU/DE/3131/2017' has held that:-
"joining of independent public witness is not mere a formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are associated on the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non-examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them.
46. Similarly Hon'ble Supreme Court of India in Judgment titled as Ramanand@Nand Lal Bharti Vs. State of Uttar Pradesh cited as 2022 SCC online SC 1396 has observed as under:-"52. Section 27 of the Evidence Act, 1872 reads thus:-
'27 How much of information received from the accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information, received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 33 of 43 not as relates distinctly to the fact thereby discovered may be proved. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire, in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of that independent witnesses so as to lend credence that a FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 34 of 43 particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two particular place anything like the weapon of offence of blood stained clothes or any other article is discovered then the part of the entire process expects the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter".
47. PW-13 IO/SI Devender deposed that he recorded disclosure statement of accused Ex. PW-12/A and thereafter accused got recovered a knife. Similarly, PW-12 HC Hari Om deposed that accused made disclosure statement, Ex. PW-12/A. He also deposed that accused Firoz led them towards the park near Eidgah where at instance of accused Firoz Khan one knife was recovered from beneath a car which was parked there. As per disclosure statement of accused, Ex. PW-12/A, the knife was recovered from a spot outside Eidgah Park. The incident in the present case had taken place inside the Eidgah Park. With the recovered knife, there was a key ring with which one key on which 'Hero Honda' was engraved was also attached. IO has not conducted any investigation with respect to the motorcycle to FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 35 of 43 which the said Hero Honda key belonged. If it was the key of the motorcycle of accused or his family member, why he would have thrown the same near the spot of incident and he could have thrown only the knife after taking key of Hero Honda after taking out the same from the ring. Moreover, the said knife was recovered from open public place which was accessible to all. No public person was joined in the investigation at the time of recovery of said knife, Ex. PW-1/P2. No notice was served to any public person who refused to join the investigation. Non-joining of public person at the time of recovery of incriminating articles after the disclosure statement of accused is not a mere a formality but it puts a check on the arbitrary misuse of power by the police officials.
48. In view of the aforesaid discussion and applying the law laid down by the Hon'ble Supreme Court of India in Mohammad Burhan (Supra) and Ramanand@Nand Lal Bharti (Supra), this Court is of considered opinion non-joining of public persons at the time of recovery of weapon of offence i.e. knife, Ex. PW-1/P-2 is fatal to the case of the prosecution. Thus, the prosecution has failed to prove the recovery of weapon of offence i.e. knife, Ex. PW-1/P-2 at instance of accused beyond reasonable doubt.
49. The prosecution has also relied upon on the medical & scientific evidence in form of MLC of PW-1/injured Mohd. Zakir, Ex. PW-2/A and the FSL Reports, Ex. PW-13/G & Ex.
FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 36 of 43 PW-13/G1. PW-2 Dr. Nikunj Bansal has specifically deposed that he had opined the nature of injury on MLC, Ex. PW-2/A of PW-1/injured Mohd. Zakir as 'simple'. Thus, the injuries caused on the person of PW-1/injured Mohd. Zakir were not grievous or dangerous to his life. PW-2 Dr. Nikunj Bansal also deposed that it was possible that the said injury could have been self inflicted. He also deposed that without seeing the key, he could not state whether the said injury could have been caused by the said device. The IO did not take any opinion with respect of use of key or knife for causing the injuries on the person of PW-1/injured Mohd. Zakir mentioned in his MLC, Ex. PW-2/A. As per FSL report, Ex. PW-13/G & Ex. PW-13/G1, the blood was found on the knife with key but the same was not matched with the blood of PW-1/injured Mohd. Zakir. In these circumstances, it cannot be said that the said injuries were caused by the use of knife, Ex. PW-1/P-2. In the present case, through the evidence of prosecution witnesses and defence witness, it has come on record that a sudden quarrel had taken place between accused and PW-1/injured Mohd. Zakir in which both had sustained simple injuries on their persons. In these circumstances, it is not clear as to who was (accused or injured) the aggressor in the alleged fight/quarrel. Thus, the prosecution has failed to prove beyond reasonable doubt that accused was the aggressor in the present case and he attacked PW-1/injured Mohd. Zakir with the intention to kill him.
50. To prove the prosecution case, the testimony of the FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 37 of 43 prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
51. In case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21', it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 38 of 43 with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 39 of 43 version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
52. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In the instant case we do not fine her evidence to be of such quality."
53. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 40 of 43 the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
54. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that PW-1/injured Mohd. Zakir & PW-3 Mohd. Salim are not witnesses of sterling quality as their versions are not natural and they have also failed to withstood the test of cross examination. This court is of the considered opinion that the testimonies of PW-1/injured Mohd. Zakir & PW-3 Mohd. Salim are not clear, cogent, credible, trustworthy and consistent and same have not been corroborated by the other prosecution witnesses and other corroborative evidence on record and the circumstances.
55. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must always go to the accused as the prosecution has to prove the case beyond reasonable doubt.
56. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. reported in AIR 2000 SC 1209 has held as follows:-
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 41 of 43 deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
57. In yet another decision in State of U.P. Vs. Ram Veer Singh and Another reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:-
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 42 of 43
58. In the present case, due to material contradictions in testimonies of PW-1/injured Mohd. Zakir & PW-3 Mohd. Salim, non-joining of independent witness, not entertaining the complaint of accused, doubtful recovery of weapon of offence and the defence taken by the accused serious doubts have been created upon the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused.
59. The prosecution has failed to prove ingredients of offence punishable under Sec. 307 IPC against accused Firoz Khan beyond reasonable doubts.
60. Accordingly, accused Firoz Khan is hereby acquitted for the offence punishable under Sec. 307 IPC.
Digitally signed by VIRENDER VIRENDER KUMAR KUMAR KHARTA KHARTA Date: Announced in the open court 2026.03.13 14:48:09 +0530 on 13th day of March, 2026 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI:13.03.2026 FIR No. 175/2017, PS: Sadar Bazar, State Vs. Firoz Khan Page No. 43 of 43