Delhi District Court
State vs Irshad @ Ajay S/O Late Sabban Ali on 5 October, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 106/10
State Vs Irshad @ Ajay S/o Late Sabban Ali
R/o AII/271, Madangir, New Delhi.
(In judicial custody)
FIR No : 177/10
P.S. : Ambedkar Nagar
U/s. : 302/34 IPC
DATE OF INSTITUTION : 13.10.2010
JUDGMENT RESERVED ON : 27.09.2011
DATE OF DECISION : 05.10.2011
JUDGMENT:
1. On receiving DD no. 52A at around 2.22 a.m. on the night of 22/23.06.2010 police reached spot and found that deceased Javed @ Babloo was already sent to AIIMS where he was declared "brought dead". Police has recorded the statement of complainant Alisha Anthony, who in her statement alleged that she knew deceased Javed @ Babloo for last one and half year and they often used to meet each other and till late night they used to sit in the park and talk to each other but this is not liked by his brother in law accused Irshad @ Ajay and in this regard number of times there used to be fighting between State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-1) accused Ajay @ Irshad and deceased Javed. She further alleged that she alongwith deceased Javed was roaming around on his motorcycle on 19.06.2010 and today at around 2.00 a.m. in the night sitting inside the park in A2 Block, Madangir Park and eating something, three boys came and started hitting them with the stone. On this deceased Javed @ Babloo told them what they are doing and started going towards them and at that time her brother in law accused Ajay @ Irshad and one of his associate called to whom she used to see on barber shop and can identify him, came that boy caught hold of deceased Javed @ Babloo and her brother in law had attacked him with the knife and told him that now you can meet my sister in law Alisha and thereafter all ran from there. Deceased Javed fell down on the ground and told her that your brother in law had not done good to him and asked her to take him to the hospital and from there she called from mobile of deceased Javed to police and after sometime one boy came and had taken away both mobiles from her. She further alleged that thereafter police vehicle had come and taken them to hospital.
2. Pursuant to her statement FIR u/s. 302/34 IPC was registered. During investigation site plan of the spot was prepared, scene of crime was photographed and exhibits i.e. blood stained soil, blood stained knife which were lying at the spot were lifted and taken into police possession and thereafter duly sealed. Postmortem of the deceased was conducted and on 25.06.2010, accused Irshad @ Ajay was arrested State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-2) from E275, Dakshinpuri, New Delhi, pursuant to his arrest, his disclosure statement was recorded. In his disclosure he stated that he alongwith Sonu stabbed the deceased Javed on the night on 22/23.06.2010 but he does not know the exact name and address of Sonu. In postmortem report doctor mentioned eight stab injuries and opined the cause of death as hemorrhagic shock due to multiple visceral injuries produced by sharp cutting/stabbing object.
3. During further investigation scaled site plan of the spot prepared but accused Sonu could not be identified due to lack of name and address and on completion of investigation charge sheet was filed against accused Ajay @ Irshad.
4. On committal charges were framed against accused Ajay @ Irshad u/s. 302 IPC to which accused pleaded not guilty and claimed trial.
5. Prosecution for substantiating charge has examined 22 prosecution witnesses. Complainant Alisha Anthony is examined as PW2, other prosecution witness are PW5 Mohd. Yasin (neighbour), PW21 Mohd. Kamil (brother of deceased), PW6 Mohd. Akil (brother of deceased) and PW7 Shabbir Miyan identified the deceased. Other witnesses are police officials and doctors. Brief summary of their deposition is as follows.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-3) Deposition of public witnesses
6. PW2 Alisha Anthony, complainant deposed that on 22.06.2010 she was at a park with deceased Babloo @ Javed and were having food. She further deposed that 34 boys came from the entry of the park and started throwing stones on them and deceased Babloo went towards them and asked why they are throwing stone. On this they started beating deceased Babloo and dragged him at the corner of the park and further they pushed him on the ground also and she saw a stab wound on his body and thereafter lifted his mobile and called at 100 number. She further deposed that Babloo had not told her anything when he was in injured condition. On being declared hostile, in cross examination by Ld. Addl. P.P. she deposed that she knew deceased Javed for last one and half years but denied that she often used to meet deceased Javed @ Babloo. She further denied the fact that deceased Javed used to come to their house which was not liked by accused Ajay @ Irshad. She further deposed that it is correct that she was going around with deceased Javed on his motorcycle here and there since 19.06.2010. She further denied suggestion that one of the accused who threw stone was accused Irshad her brother in law and other boy of white colour face used to sit in the shop at barber in Madangir. She further denied the suggestion that the said boy caught hold of the deceased Javed and accused Irshad hit him several times with knife and State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-4) fled away from the spot. She further denied suggestion that she was having any friendship with deceased Javed. She further denied suggestion that she had taken the name of the accused while making complaint to the police. She further denied suggestion that she is deposing falsely to save accused who is her brother in law.
7. PW5 Mohd. Yasin deposed that on intervening night of 22/23.06.2010 he was at his house at around 2/2.30 a.m. and got up for going to toilet and suddenly saw Irshad @ Ajay hurriedly coming from the park and went to his house in terrified state and after sometime he hurriedly came out with his wife and child alongwith luggage and fled towards main road. In cross examination he deposed that house of the accused is in front of his house. He further deposed that he does not have any enmity with accused Irshad and was having good relations with him. He further deposed that he did not asked accused Irsahd why he is in hurry.
8. PW6 Mohd. Akil (brother of the deceased) and PW7 Shabbir Miyan deposed that they identified the dead body of deceased Javed @ Babloo.
9. PW21 Mohd. Kamil (another brother of deceased) deposed that on the intervening night of 22/23.06.2010, he was sleeping at his house State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-5) and at about 2.00 a.m. he woke up and did not find his brother, went to park as deceased often used to go to the park and there he saw one girl standing in the park and saw two persons hitting his brother Javed. He further deposed that one of the persons whose name is Sonu was holding his brother when accused Irshad was hitting his brother with knife. He further deposed that he shouted from there and accused Irshad threw something on ground and told Sonu to "bhag" and both fled from the spot. He further deposed that he immediately rushed towards his brother who fell down inside the park on footpath and his brother who was in injured condition called him to catch those boys. Accused Irshad ran towards masjid and accused ran towards Khanpur side but he could not catch him. Thereafter he came back and one police officer was found present who told him that injured has been sent to Trauma Center, AIIMS. Thereafter, he went to his house and alongwith his eldest brother went to hospital. There he got to know that his brother was died. Later, body was handed over to them after postmortem, thereafter he came to spot and his statement was recorded by the police.
10. In cross examination he deposed that he had told to the police that he was sleeping thereafter he woke up. He further deposed that he do not remember whether he told to police that he first went to his house from spot after chasing the accused persons. He further denied the suggestion that he was not present at the spot. He further deposed that State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-6) he had seen his brother being beaten and stabbed by accused persons from 2025 feet away. He further deposed that he reached at spot within 1015 minutes from his house and incident took place at patri inside park and this patri is around 15 steps from the gate of the park and there was light in the park but he cannot say how many lights are in the park. He further deposed that accused persons had thrown knife near spot and he had seen the blood at spot and patri. He further deposed that he had not seen how many stab injuries were inflicted on body of deceased Javed by accused Irshad. He further deposed that he chased accused person till JJ Colony which is about one k.m. He further deposed that he did not see any public person while chasing. He further deposed that he does not know designation of police person, who met him. He further deposed that police recorded his statement on 23.06.2010 at 3.00 p.m. He further deposed that there is one gate of the park and there is one more gate which most of the times remained closed. He further denied the suggestion that he was not present at the spot and implicating the accused person being an interested witness. Deposition of doctors
11. PW1 Dr. R P Singh deposed that he conducted the postmortem of deceased Javed on 23.06.2010. On conducting general examination, rigour motis was in developing stage. Post mortem staining was State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-7) present on back and fixed. Deceased was wearing black shirt, grey banyan, black pant, brown belt. Eyes were closed , cornea was opaque, mouth was closed, all other natural orifices NAD.
External injuries:
1. Incised stab wound of size 2.5 cm X 0.2 cm was present on left upper abdominal region just below costal margin placed horizontally. Both ends were sharp. Medial end is 6 cm from middle line. Further it is entering peritonial cavity and entering stomach cavity.
2. Incised stab wound of size 2.5 cm X 0.2 cm present 7cm below injury no.1, placed vertically, lower end is blunt and upper end is sharp. It is 11 cm lateral to middle line and further it goes in peritonial cavity.
3. Incised stab wound of size 2.5 cm X 0.3 cm present on left anterior superior iliac spine, cutting on the skin. Both ends were sharp.
4. Incised stab wound of size 2.5 cm X 0.2 cm present on left axillary region (outer aspect), placed vertically, both ends were sharp, wound is muscle deep.
5. Incised stab wound of size 2.3 cm X 0.2 cm present on left flank, placed vertically just below costal margin. Both ends were sharp. It is going for 5cm in subcutaneous space.
6. Incised stab wound of size 2 cm X 0.2 cm present on left outer upper gluteal region, placed vertically, both ends were sharp. Wound is 7 cm below iliac crest and 8 cm deep.
7. Incised stab wound of size 2 cm X 0.2 cm present in middle line of State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-8) back, placed vertically. 10 cm above secral region, both ends were sharp and the wound is going upto spine.
8. Incised stab wound of size 2cm X 0.2 cm present on anterior aspect of right upper chest, 5cm below clevicle. Upper end is sharp and lower end is blunt and wound is muscle deep.
Internal findings:
1. Brain Brain was pale
2. Lungs were pale.
3. Peritorial cavity It contains about 2.5 ltr. of clotted and liquid blood.
4. Stomach was empty
5. Intestine Multiple incised stab wounds were present on loops of intestine and mesentary
6. Liver pale
7. splinepale
8. Kidneyspale Opinion Cause of death, in this case was haemorrhagic shock due to multiple visceral injuries produced by sharp cutting /stabbing object.
Blood on gauze was preserved which was sealed and handed over to police. In cross examination, he deposed that he did not notice any un disgested food particles oozing from the injuries of the intestine. He also deposed that in present case, the injury no. 8 is incised stab wound in which the upper end is sharp and lower end is blunt. It signifies that State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-9) the weapon which produced this injury was single edged and resulting in the above injury. He further deposed that the total amount of blood was about 2.5 ltr. It consisted of both clotted and liquid blood but cannot specifically tell the quantity of each separately.
12. PW15 Dr. Prashant Sharma deposed on behalf of Dr. Dinesh Yadav who had left the hospital and had seen the MLC of the deceased Ex.PW15/A which is a computer print out and as per this MLC, patient was declared brought dead by Dr. Dinesh Yadav.
Deposition of police officials:
13. PW3 SI Liyakat Ali recorded the FIR. PW4 HC Mangat Ram joined investigation with IO on 22/23.06.2010 in his presence IO/SHO M.S. Punia prepared rukka and handed over him for registration of the case. In cross examination he deposed that IO handed over rukka at around 4.30 am and there were also some public persons in park whose name he do not remember. PW8 Ct. Girdhar Singh being the member of mobile crime team, on the direction of SI Vijay Pal took 6 photographs of the spot where blood and knife were lying from different angles. In cross examination he deposed that he reached the spot at around 4.10 am and only police persons were there at the spot. And further deposed that he remained at the spot for about one hour.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-10) He further deposed that when he took photographs there was light at the spot. PW9 W/Ct. Meeankshi Sharma received a call of a lady from phone no. 9278342830 at about 2.21 am on 23.06.2010 at PCR headquarter regarding her husband being stabbed by someone behind Masjid in park Madangiri.
14. PW10 SI Vijay Pal Singh being incharge of mobile crime team reached the spot in the night of 22/23.6.2010 and on his instructions Ct. Girdhar took 6 photographs of the spot where blood was found scattered and knife was also lying there. In cross examination he deposed that he reached spot at around 4 am and no public person was found present there and finger prints could not be lifted and the spot was photographed before this exercise of finger prints and knife was lying on the spot. He deposed that he do not know whether any person from house of deceased was present at the spot. PW11 SI Mahesh Kumar prepared scaled site plan of the spot on 01.07.2010 at the instance of IO. PW12 Ct. Mohd. Ilyas delivered copy of FIR's to Ld. Metropolitan Magistrate and joint CP.
15. PW13 Ct. Sanjiv Kumar deposed that on the night of 24./256.10 he alongwith MS Punia and Ct. Javed went to E275, Dakshin Puri in official vehicle where accused Irshad was found present, he was apprehended and arrested and his disclosure statement was also State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-11) recorded. Thereafter, accused was taken to park Madangir where on his pointing out , pointing out memo of spot was also prepared. He further deposed that on 26.6.10 he came to mahila mandal with accused for search of other co accused Sonu, thereafter they went to MB road in search of Sonu but he was not found there. He further deposed thereafter they went to spot and then to Batra hospital for search of Sonu but could not be found. In cross examination he deposed that E275 is house of inlaws of accused and IO had not asked any neighbour to join in the arrest of accused. He further deposed that disclosure statement of accused was recorded at around 4 pm on 25.06.2010. He further deposed that on that day they searched for accused Sonu.
16. PW14 HC Devender deposed that on receiving information on 23.6.10 he alongwith SI Mahesh reached spot in the meanwhile IO MS Punia also reached the spot and one knife was also lying on spot with stains of blood, meanwhile, crime team also reached the spot. On being put some leading questions, he identified the case property of the case. In cross examination he deposed that his statement was recorded on the spot on 23.6.10 and he read over that statement and signed the same. He further deposed that IO reached the spot thereafter but could not tell at how many places blood stains were lying. However lying at several places. He further deposed that he cannot tell the distance State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-12) between the spot and the boundary wall. He further deposed that IO had not lifted finger prints from the knife before him and no other weapon was lying at the spot except knife. He further deposed that no public persons had joined the investigation as it was odd hours of night and public persons were not available. He further deposed that IO had not gone in search of other accused with him.
17. PW16 HC Inderjeet deposited 5 sealed parcels at FSL on 20.07.2010. PW17 HC Girdhari Lal deposed that on 23,06.2010 Inspector Punia deposited 5 sealed parcels and one sample seal and on 20.07.2010 he handed over 5 sealed parcels and sample seal to HC Inderjeet to deposit at FSL.
18. PW18 Ct. Jaiveer Singh deposed that he joined investigation on intervening night of 24/25.6.10 and they met a secret informer at the gate of H. No. E275 Dakshin Puri at around 3 am and outside the gate secret informer informed the IO that accused had recently entered the house and when they called from gate, accused came out of house and he was identified by secret informer as Irshad @ Ajai. Thereafter he was arrested and his disclosure statement was recorded and brought to spot and ot his instance pointing out memo of spot was prepared. In cross examination he deposed that accused was called from outside the house. And after accused came outside the house, they went inside State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-13) house where IO found his wife and made inquiries from her and no neighbour was present while recording disclosure statement of accused. He further deposed that IO had knocked the door of the neighbours but none responded. He further deposed that pointing out memo was prepared on 25.06.10 in morning and no public persons were made to join investigation while making pointing out memo.
19. PW19 Inspector Raj Kumar Shah deposed that on 4.9.10 he was handed over present case for further investigation and prepared challan on 21.09.2010.
20. PW20 SI Mahesh deposed that on the intervening night of 22/23.6.2010 he went to spot alongwith Ct. Devender and came to know that the injured has been removed to hospital by PCR. In the meanwhile SHO also reached there. And he alongwith SHO reached AIIMS, trauma center and left Ct. Devender at spot where doctor declared injured dead and recorded the statement of eye witness of the incident. He further deposed that he prepared inquest papers. Thereafter, Mohd. Aakil and Mohd. Shabbir Mian had identified the dead body and after postmortem handed over the dead body to Mohd. Aakil. In cross examination he deposed that he reached the spot within 10 minutes and blood was lying at the spot at 23 places and statement of Alisha was recorded at hospital by SHO MS Punia and came back to State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-14) spot at around 4 to 4.30 pm.
21. PW22 Inspector MS Punia, Investigating officer deposed that on receiving information on the night of 22/23.6.10 he went to the spot and thereafter went with SI Mahesh Kumar to trauma center, AIIMS, and found deceased brought dead. In hospital eye witness Alisha met him and told that she witnessed the incident and called police that her husband had been stabbed. Thereafter he recorded her statement and prepared rukka, left SI Mahesh in hospital to get conducted postmortem and he alongwith staff and eye witness Alisha came to spot and found crime team at spot and on the pointing out of Alisha prepared site plan of the spot and at spot he also found one knife and the blade of knife have some blood stains. And thereafter closed the knife with the help of button and packed the same in parcel. He further deposed that afterthat crime team and Alisha left spot and thereafter he went to the house of accused at Madangir which was found to be locked, and made inquiries from the neighbour. He further deposed that thereafter he came back to PS and deposited case property in malkhana and after sometimes, he received information that accused had reached his house but on reaching there his room was found locked and secret informer was also asked to find out whereabout of accused. In the meanwhile SI Mahesh came to spot alongwith Ct. Devender and handed over two exhibits with the seal of forensic medicine, AIIMS.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-15) He further deposed that on the intervening night of 24/25 he went in the search of accused and at A2 block park, secret informer told that accused recently went inside the house and immediately they went to house of father of Irshad at E275 Dakshin Puri from where the accused was arrested. And his disclosure statement was recorded. Thereafter accused lead them to spot and on his pointing out, pointing out memo was prepared and during police remand of accused, they tried to search co accused Sonu but no clue was found.
22. In cross examination he deposed that he did not lift the finger print from knife because member of crime team could lift the chanceprint if available. He further deposed that he had seized only one weapon of offence i.e, buttondar knife from the spot. He further denied the suggestion that he had not recorded the statement of Alisha as told by her and manipulated the same. He further denied the suggestion that Alisha do not sign in Hindi and sign only in English. He further deposed that he visited the house of Irshad and Javed but he do not remember whether there was some electric pole in the street where house of Irshad and Javed was situated. He further deposed that no vehicle can enter inside the park through entry gate. He further deposed that disclosure statement of accused was recorded and no public person was made witness to his arrest as it was odd hour. He further deposed that pointing out memo was made on 25.6.10 and no public witness was joined as no one was available. He further deposed State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-16) that he had seen the dead body and there were about 8 injury marks on dead body. He further denied the fact that there were 3 accused as per prosecution story. He further deposed that only 2 accused were involved and second accused could not be arrested because of lack of his father's name and address. He further denied suggestion that he had deliberately not arrested the other accused. He further deposed that it is correct that he had not shown all the points where blood stains were lying. He further deposed that it is incorrect that he had not shown the blood at various placed in site plan mark A.
23. Accused denied all the incriminating circumstances put to him u/s 313 Cr.P.C and raised plea that he is falsely implicated in the case and not opted to lead any defence evidence.
Material Exhibits:
24. Ex.PW20/A DD no. 52 dated 22.06.2010 recorded at 2.22 am regarding information that a person was stabbed in a park behind F2, Madangiri. Ex.PW2/A is the statement of the complainant alisha Anthony recorded by the police pursuant to which rukka was prepared vide Ex. PW22A and FIR was registered Ex.PW3/A. Mark A is the rough site plan of the spot. Ex.PW11/A is the scaled site plan of the spot. Ex.PW10/A is the report of mobile crime team. Ex.PW14/A State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-17) sketch of the knife alleged to be found at spot. Ex.PW14/C is the seizure memo of blood stained soil. Ex.PW14/D is the seizure memo of clothes and blood in gauze of deceased Javed. Ex. PW14/E is seizure memo of knife. Ex.PW13/B is the personal search memo of accused. Ex.PW13/A is arrest memo of accused. Ex.PW13/C is the disclosure statement of accused. Ex.PW13/D is the pointation memo of the spot at the instance of accused Irshad.
25. Ex.PW15/A is the MLC of the accused showing alleged history of assault at around 2.20 am and brought to hospital at around 3 am on 23.06.2010. Ex.PW1/A is the postmortem report on the deceased conducted at 12.30 pm on 23.06.2010 at AIIMS showing 8 stabbed injuries over the dead body. And cause of death opined to be hemorrhagic shock produced by sharp cutting object. Ex.PW8/1to6 are the photographs of the place of occurrence showing blood stains and blood stained knife. Ex.PW8/7to12 are the negatives of these photographs.
26. Ex.PW9/A is the original PCR form showing the receiving of information at police control room at 2.21 am on 23.6.10. Ex. PX & Ex.PY are FSL reports.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-18)
27. Ld. counsel for the accused argued that the material witness PW2 Alisha Anthony had not identified the accused. Ld counsel for the accused further submitted that the medical evidences also not supported the prosecution evidence because as per deposition of PW1 Dr. R P Singh the stomach of the deceased was empty no food particles were inside his stomach which belies the prosecution case that deceased alongwith PW2 was taking meal at the time of incident. Ld. Counsel for the accused further submitted that police not examined 34 persons who were throwing stones at them. Ld. Counsel for the accused further submitted that her statement was recorded by the police in PS whereas PW20 and PW22 (IO) stated that her statement was recorded in hospital. Ld. Counsel for the accused further submitted that PW2 deposed that she used to sign in English whereas as per statement recorded by police her signature were in Hindi. Ld. Counsel also submitted that knife is planted as no finger prints found on it. Further, no blood group was detected on it by FSL.
28. Ld. Counsel for the accused also submitted that PW21 Mohd. Kamil brother of the deceased was not cited in the list of witnesses and also none other witness i.e. PW2 and other police officials stated that he was present at the time of incident and PW21 and PW5 are the planted witnesses of the police. Ld. Counsel for the accused also submitted that police had not investigated who had taken mobile of PW2 and even not recorded statement of the PCR persons who had State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-19) taken the deceased to the hospital. Ld. Counsel for the accused also submitted that link evidence like mobile phones and persons who had taken the deceased to the hospital are absent. Ld. Counsel for the accused further submitted that the prosecution unable to prove its case beyond reasonable doubt, therefore, accused is entitled for benefit of doubt.
29. Ld. Addl. P.P. on the other hand submitted that prosecution has proved its case beyond doubt. PW2 Alisha Anthony had supported the prosecution on all other aspects except identity of the accused. Ld. Addl. P.P. further submitted that PW21 Mohd. Kamil brother of the deceased was also the eye witness who supported the prosecution case and identified accused Irsahd @ Ajay in the court and further PW5 Mohd. Yasin also stated that he had seen the accused Irshad going out of his house after the incident in the state of panic. Ld. Addl. P.P. further submitted that other circumstances which connects the accused with crime is the recovery of knife from the spot. Ld. Addl. P.P. further submitted that it is inconceivable that complainant PW2 shall name accused Irshad her jija in FIR if he is not the real culprit. Ld. Addl. P.P. further submitted that the prosecution proved its case beyond reasonable doubt and submitted that accused is liable to be convicted u/s. 302 IPC.
30. Arguments heard. Record perused.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-20) Complainant's version (PW2 Alisha Anthony) of incident:
31. According to prosecution vide DD no. 52A, the information regarding the stabbing was received in police station at around 2.22 am in the night of 22/23.06.2010 pursuant to which SI Mahesh alongwith Ct. Devender were sent to spot. As per the statement of Ct. Devender PW14 and SI Mahesh Singh PW20 when they reached the spot they got to know that injured had already been removed to hospital by PCR in the meanwhile SHO with staff also reached at spot and they left Ct. Devender at spot and SHO/IO PW22 alongwith SI Mahesh PW20 reached AIIMS trauma center where they found injured dead and also found PW2 Alisha Anthony, complainant thereafter SHO recorded her statement at hospital and thereafter prepared rukka and sent rukka through Ct. Mangat for registration of FIR at PS at around 4.30 a.m.
32. The statement of the complainant PW2 Alisha Anthony recorded by the police is Ex. PW2/A. In that statement she stated that she know the deceased Javed @ Babloo for last one and half years and used to roam around with accused till late night which is not liked by his brother in law (jija) accused Irshad @ Ajay and in this regard no. of times quarrel had taken place between them and on 19.06.2010 deceased Babloo had beaten Irshad. She further stated in her statement Ex.PW2/A that at around 2 am in the night she was eating something with deceased State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-21) Javed in the meanwhile, 3 boys came and started hitting them with the stones. Thereafter, deceased Javed went towards them and in the meanwhile, accused Irshad alongwith one other white complexion boy whom she used to see at Barber shop came and that boy caught hold of javed and accused Ajay @ Irshad had inflicted injuries on deceased Javed with knife. Thereafter, she called 100 number from the mobile of Javed and after some time one boy came who had taken away both mobiles of deceased from her. On this statement of PW2, FIR was registered at 5.10 am.
33. PW2 Alisha Anthony complainant in her deposition before the court had corroborated the above statement on the factum that she was with deceased Babloo @ Javed on the said night and they were taking food, 34 boys came from the entry of park and started throwing stones on them and when Babloo asked them why they were throwing stones, they dragged him to the corner of the park by pushing her on the ground and when she saw Babloo was having stab wound, she called 100 number and police came and took the deceased Babloo to trauma center. In her statement before the court she denied the presence of accused Ajay @ Irshad but on being declared hostile by Addl. PP, in cross examination she admitted that she knew deceased Javed for one and half year and also used to meet Javed at said park. But denied of any dispute between accused Irshad and deceased. Further denied that she was won over by accused being Jija.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-22)
34. As per statement of complainant PW2 she was sitting with the deceased Javed and eating food and at that time 34 persons came and started throwing stones at them. As per postmortem report and the deposition of PW1 Dr. R.P. Singh, he found stomach empty and did not notice any undigestive food particles oozing from intestine, as far as involvement of 34 persons who threw stones at both of them, police has not made any inquiries or investigation on that point of view, whereas as per prosecution they are likely to be present at spot when incident took place.
35. This PW2 had also stated in her statement Ex.PW2/A that after calling police at 100 number, after some time one boy came and taken away both the mobiles of deceased Javed from her. It is pertinent to note that police has not investigated this circumstance and also not explained this circumstance of taking of mobile phones from PW2. Further not try to recover those mobiles etc. Recovery of knife:
36. According to prosecution after the incident of stabbing accused Ajay @ Irshad due to panic had thrown knife at spot while leaving away. There is no mention of throwing knife at the spot by PW2 in her State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-23) statement to police or before court. Further, the rough site plan mark A prepared by Inspector Punia IO also do not show presence of knife at spot. Though in the scaled site plan which was prepared on 29.07.2010 at point P shows location of blood stained knife. This circumstances in itself creates doubt about the presence of the knife at the spot. Further creates doubt over the veracity of scaled site plan.
37. As per seizure memo of knife Ex. PW14/E knife was shown to be recovered near dead body of the deceased. But as per record, dead body was already removed to hospital well before reaching of the police at the spot by PCR, therefore, it cannot be said that knife was recovered from near dead body, which reinforce the doubt over the recovery of knife.
38. PW22 IO in examination in chief as well as in cross examination stated that one buttondar knife was recovered at the spot. Whereas as per Ex. PW14/E, seizure memo of the knife, the knife is not stated to be buttondar and could be opened and closed through a lever. Medical Evidence:
39. PW1 Dr. R.P. Singh conducted the postmortem of the deceased Javed @ Babloo and as per postmortem report 8 stab injuries were inflicted State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-24) on the body of the deceased resulting the death of deceased Javed @ Babloo. In his deposition PW1 Dr. R.P. Singh mentioned in description of injury no.2 that the injury shows lower end blunt and upper end sharp and injury no. 3, 4, 5, 6 & 7 shows both ends sharp and for injury no. 8 upper end sharp and lower end blunt. In cross examination, he stated that in injury no.8 is incised wound in which the upper end sharp and lower end blunt which signifies that this injury was produced from single edged weapon. Therefore, in view of deposition of this doctor, injuries showing both ends sharp were caused by some different weapon. It implies that in inflicting the injuries, two kinds of weapons were used. One is sharp from both ends and other is sharp from one end and blunt on the other end. But in the present case the recovered knife as per sketch Ex. PW14/A and photograph both ends appears to be sharp.
40. This medical evidence raises an apparent question that while inflicting injuries, two types of weapon of offences were used and it points towards fact that at least two persons had stabbed deceased Javed but this is not the case of the prosecution.
Recording of FIR:
41. As per the statement of PW2 Alisha Anthony, her statement was State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-25) recorded by the police in police station but as per the statement of PW20, 22, the statement of PW2, Ex.PW2/A was recorded by the IO (PW22) in hospital and in hospital rukka was prepared and sent to PS for recording of FIR alongwith PW4 Ct. Mangat at around 4.30 am on 23.6.2010. This version of PW22 and PW20 is in contradiction with the statement of PW4 Mangat Ram who testified that he had taken rukka from the spot for registration of FIR from IO M.S. Punia. Therefore, three different versions appeared regarding recording of the statement of complainant PW2 and sending of rukka to PS. PW 2 stated that her statement is recorded in PS, whereas PW20 and 22 stated that her statement was recorded in hospital and as per statement of PW4 it can be inferred that the statement was recorded at the spot. Further, there is no signature of any doctor attesting the said statement if it was recorded in hospital.
42. According to Ex. PW10/A report of mobile crime team prepared by PW10 SI Vijay Pal Singh as per this report crime team remained at the spot from 4.00 a.m. to 5.05 a.m. on 23.06.2010 and in a column where it is mentioned that "Articles preserved from the scene of crime it is written that as per seizure memo prepared by the IO". This Ex. PW10/A shows that crime team had remained at the spot between 4 am to 5.05 am and all the seizure memos were prepared by the IO between that time.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-26)
43. As per rukka Ex. PW22/A was prepared at hospital and was sent from hospital as per statement of PW22 IO and PW20 SI Mahesh at around 4.30 a.m. and as per the statement of PW22 (IO) after sending of the rukka he left SI Mahesh at hospital and went to the spot. Therefore, it can be presumed that IO might have not reached the spot before 5.00 a.m. Both PW8 and PW10 crime team officials stated that they remained at around one hour and reached the spot at around 4.10 a.m. PW10 stated that in crime team report Ex. PW10/A that all the articles seized as per seizure memo it implies that between 4.00 5.05 a.m. all the seizure memos were already prepared by the IO. Further in cross examination he stated that IO had recorded the statement of local police persons. First it is unlikely IO might have reached the spot by 5.00 a.m. and further it is more unlikely that in presence of crime team IO prepared all the seizure memos, seized the articles and recorded the statement of local police persons present there by 5.00 a.m. This creates doubt over sequence of the events deposed by crime team officials and the police persons and further reinforce the doubt that knife as alleged recovered from the spot is planted and also casts doubt on the credibility of information recorded by IO in FIR at the instance of complainant PW2.
No finger print found on recovered knife:
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-27)
44. According to prosecution said knife was thrown by accused just after the incident in state of panic and as per photograph Ex.PW8/6 andEx.PW8/5 taken by the crime team photographer the said knife was found to be present at the spot. But PW10 SI Vijay Pal Singh, in cross examination stated that no fingerprints could be lifted from knife and spot was photographed before exercise of fingerprints. As per FSL report Ex. PY though blood opined to be human origin present on knife but there is no reaction. In this scenario when there is all likelihood of presence of fingerprints on knife but which were not present and further as per FSL report blood group could not be obtained, coupled with the fact that said knife was not even shown in rough site plan Ex. Mark A and also not found mention in the statement of PW2 Alisha nor there is mention of that blood stained knife in the rukka. It creates doubt over the use of that knife in the said offence and appears to be planted by police.
Deposition of PW21 Mohd. Kamil:
45. Prosecution had also examined PW21 Mohd. Kamil, brother of the deceased Javed @ Babloo being an eye witness. Before discussing his deposition let me explain under what circumstance he deposed before the court. An application for summoning Shri Mohd. Kamil as a State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-28) prosecution witness was filed by the prosecution on the ground that his statement u/s 161 Cr.P.C was recorded during investigation on 23.6.10 but inadvertently his name could not mentioned in list of witnesses and in these circumstances vide order dated 15.7.2011 this court allowed Mohd. Kamil to be examined as prosecution witness and his deposition was recorded on next date i.e, 2.8.2011.
46. This witness Mohd. Kamil PW21 stated to be brother of deceased deposed that at around 2 am on the night of the incident he just woke up and when he had not found his brother he went to see him towards the park because he already knew that his brother used to go to that park and had seen one girl standing in park and had also seen two persons beating his brother and further named both persons as Sonu and accused Irshad and found accused Irshad hitting his brother.
Thereafter shouted and on this Irshad thew something on ground and fled away with Sonu. He immediately went to his brother who told him to catch those boys. Thereafter, Irshad ran towards Masjid and Sonu towards Khanpur side but he was unable to catch them and when he came back to spot police was present there and told him that Babloo was taken to hospital, thereafter he went to hospital alongwith his elder brother Aquil where doctor told them that he is dead and thereafter his postmortem was conducted and they brought dead body of his brother at home and thereafter, he went back to spot.
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-29)
47. In cross examination, he was confronted with his statement where this fact that he was sleeping is not recorded. Further he stated that he do not remember whether he has stated to the police that he had gone to his house after chasing the accused persons. He further deposed that he had seen his brother being beaten and stabbed by accused persons from 2025 feet away, he further deposed that knife was thrown by accused near the spot and also seen it at spot. He further deposed that he cannot say how many blows were given to his brother and stated that he chased accused persons for about a kilometer and also could not state the designation of police officer who told him that his brother was taken to hospital.
48. None of the police officer who is present at the spot had stated in their deposition that they met the brother of accused Mohd. Kamil at the spot and told him that accused was already taken to hospital. This witness even could not tell the name of the lady who was standing with accused persons. And as per this witness when deceased was stabbed he approached him who told him to chase the accused persons, it implies that this witness must have seen the lady PW2 and also PW2 must have seen him but there is no mention of his name in FIR that he had approached to save his brother at the time of incident. This PW21 also stated that the accused had thrown knife at the spot. But PW2 had not stated this fact. However the presence of knife at spot as already discussed above appears to be doubtful, then if this witness states that State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-30) said knife was thrown by accused at the spot also raised question on the reliability of this witness.
49. Further, conduct of this witness appears to be unnatural firstly instead of helping his brother to take to hospital or calling the police he went to chase the accused persons though he had not tried to interfere before the incident. This witness stated that when he came back after chasing and was told that the deceased was taken to trauma center by PCR van then he went to the house and woke up his eldest brother Mohd. Aquil and went to Trauma Center. There is no statement of Mohd. Aquil (PW6) recorded by police in this regard. This witness Mohd. Aquil though examined by police for identification of dead body, if this witness knows about those facts before his statement recorded by police as stated by PW21 then he must have stated this fact to police but his statement is only restricted to identification of dead body. Therefore, this creates grave doubt over the presence of PW21 at the time of incident.
50. Perusal of order dated 15.7.2011 shows that it was submitted by Addl. PP that his statement was recorded on 23.6.2010 but on perusal of the entire proceedings of police on 23.6.2010 in case diary, there is nothing which shows that this witness was examined by police on 23.6.2010. (this court while perusing case diary have also signed on proceeding conducted by police on 23.06.2010). Therefore, this State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-31) witness appears to be fabricated by the prosecution.
51. Police also examined PW5 Mohd. Yasin, neighbour of accused Irshad @ Ajay deposed that he had seen the accused on the said night at around 2./2.30 am and he hurriedly went inside his room and came down with wife and children and went away with some luggage in his hands. In cross examination he was suggested that he was not having good relations with Ajay @ Irshad and came out of house with one suitcase and potli. The deposition of this witness shows that he had seen this witness at 2/2.30 am In his statement u/s 161 he stated to have seen the accused with going towards road with one small bag but in his statement before court he stated that he had seen the accused with one suitcase and potli towards Dakshin Puri side. Further this witness stated that he woke up at that time for toilet. PW21 also sated he also woke up at 2/2.30 a.m. when not saw his brother. Both these prosecution witnesses coincidently woke up at 2/2.30 a.m. in night coupled with other inconsistencies makes them completely unreliable witnesses and appears to be planted witnesses.
Description of incident:
52. In the light of the evidence already discussed, let me relook and sketch the entire description of incident. As per prosecution case, State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-32) deceased and PW2 were having food and at that time, 34 persons started hitting them with stones, in the meanwhile accused Irshad and Sonu came. Sonu caught hold of deceased Javed and accused Irshad inflicts knife blow. Thereafter, Irshad in panic left the knife there and ran away.
53. PW2 Alisha Anthony in her statement PW2/A to the police stated that that 34 persons came and started throwing stones at deceased and when deceased Javed went towards them, in the meanwhile her brother in law Irshad and second boy came and inflicted stab injuries and thereafter she immediately called police and after sometime a person came and taken away both mobiles from her.
54. The police had not tried to locate and examine all those 34 boys nor even tried to locate the person who had taken the mobiles from PW2 and further even could not trace second accused Sonu which was alleged to be living in the vicinity. These deficiencies in investigation if coupled with other evidences i.e. as per medical evidence as already discussed there might be possibility of using of two knives, further no food particles were found in postmortem of deceased, further no fingerprints were found on knife. Even the recovery of knife as alleged is already disbelieved. If these facts considered together then incident appears to be somewhat different and this fact could further be reinforced from the background of the deceased who as per State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-33) prosecution documents is involved in number of criminal cases viz., FIR No.45/09 u/s 399/402 IPC; FIR No.268/08 U/s 27/25/54/59 Arms Act; FIR No. 38/07 u/s 279/337 IPC; FIR No. 441/02 u/s 302/307/34 IPC & 27/54/59 Arms Act; FIR no. 478/05 U/s 452/324/506 IPC; FIR no. 622/05 u/s 399/402 IPC & 25 Arms Act and in FIR No. 440/06 u/s 323/341/506 IPC. Further, the prosecution had not even examined the PCR officials who immediately took the deceased from spot and could be in a position to provide more proximate description of incident and might be useful corroborating evidence and non examination created important missing link.
55. Now main question remains is evidenciary value of statement of PW2 before police in which she had named accused. Ld. Addl. PP submitted that there is no possibility that PW2 shall name her brother in law in the FIR if he was not the real culprit and her mere turning hostile on the identity of accused in deposition before court is of no value. There is a force in contention of the Ld. Addl. PP that why PW2 Alisha Anthony would name accused Irshad in the FIR. But if other circumstances i.e, inconsistencies in recording the FIR, preparation of site plan, recovery of knife, planting of PW21 and PW5 as a prosecution witnesses and further non finding of fingerprints on the said knifes and medical evidence creates lot of doubt on the probable description of incident by the prosecution therefore, the statement of PW2 recorded by police vide Ex.PW2/A cannot be acted upon without State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-34) reliable corroborating evidence, which is lacking in present case.
56. It is settled principle of criminal jurisprudence that the more serious is the offence, the stricter is the degree of proof required to convict the accused. Apex court in "Swarn Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637" had observed "Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence". This proposition is recognised by Apex court in subsequent decisions till date. But prosecution in present case unable to bring on record legally reliable and unimpeachable evidence to reach on reasonable conclusion that accused had committed the offence as alleged.
57. Burden of proof is on prosecution but, prosecution unable to prove its case beyond reasonable doubt, thus accused Ajay @ Irshad is granted benefit of doubt and acquitted of charge u/s 302 IPC. Accused is directed to furnish personal bond in sum of Rs. 25,000/ and one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 05th October, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Irshad @ Ajay, SC No.106/10 (Contd...Pg-35)