Delhi District Court
Judgement 'Shankar & Anr. vs . State (N.C.T.) Of Delhi, 2010 (3) on 28 November, 2011
STATE V. MOHD. SHAHZAD @ BHOORE
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 (CENTRAL)
TIS HAZARI COURTS DELHI
SC No. 81 of 2009
ID No. 02401R1010262008
FIR No. : 19/2008
PS : Shashtri Park (Metro)
U/S : 302 IPC
IN THE MATTER OF:
STATE
versus
Mohd. Shahzad @ Bhoore
S/o Mohd. Ishak
R/o 1713 Kabuli Gate Mawana
(Meerut)
.......Accused
SC No. 81/09 Page no. 1 of 36
STATE V. MOHD. SHAHZAD @ BHOORE
Date of institution : 15.07.2008
Date of committal to Sessions Court: 25.07.2008
Date of judgment reserved on : 19.11.2011
Date of pronouncement of judgment: 28.11.2011
Present : Sh. R.K. Tanwar, Additional Public Prosecutor
for the State
Sh. R.P.Tyagi, Advocate, Counsel for accused
J U D G M E N T:
1. Briefly stated facts of prosecution case are that on April 3, 2008 at about 7.15 p.m. DD writer had received an information through wireless set operator that an information had been received from mobile bearing number 9312237661 that one person, who had sustained injury by knife, was lying in the pool of blood in front of Metro station, Seelam Pur, Delhi. The said information was recorded vide DD No. 13A, which has been exhibited as Ex. PW20/A during the trial.
2. On receipt of DD No. 13A, SI Anuj Nautiyal reached the spot but injured had already been taken to GTB hospital and no eye witness met there. In the mean time, SI Swarn Singh and HC Rajesh also reached there. One blood stained shirt and one SC No. 81/09 Page no. 2 of 36 STATE V. MOHD. SHAHZAD @ BHOORE blood stained shoe of right leg were also found lying there. After leaving SI Swarn Singh at the spot, SI Anuj Nautiyal along with HC Rajesh left for hospital. On reaching hospital, investigating officer obtained the MLC of unknown injured, who was declared unfit for statement. On search one driving licence was recovered from the possession of injured and he was identified as Raju S/o Hoti Lal. However, no eye witness met at the hospital. Accordingly, investigating officer prepared a rukka and sent HC Rajesh to police station to lodge an FIR for the offence punishable under Section 307 IPC.
3. One sealed pullanda containing clothes of injured, driving licence and one key of vehicle was handed over to the investigating officer. After receiving the same, investigating officer reached the place of occurrence and got photographed the the site. Investigating officer also seized the blood stained shirt and blood stained shoe, which were found lying at the spot and also took the sample of blood from the spot. In the mean time, at about 11.15 p.m., an information was received vide DD No. 18A that injured had succumbed to his injuries, accordingly Section 302 IPC was inserted and further investigation was assigned to SC No. 81/09 Page no. 3 of 36 STATE V. MOHD. SHAHZAD @ BHOORE Insp. Jaswant Kaur. During investigation, dead body was shifted to mortuary and during inquiry, complete name of deceased was revealed as Inder Pal @ Raju S/o Braham Pal Singh @ Hotilal R/o Village Echra, PS Anup Shahar, Buland Shahar, U. P. After post- mortem, the dead body was handed over to the relatives of the deceased. As per post-mortem, cause of death was shock as a result of hemorrhage due to ante mortem injuries to the liver and right lung produced by sharp cutting/stabbing weapon and opined the ante mortem injuries sufficient to cause death in ordinary course of nature.
4. During investigation, one Harish Yadav S/o Radhey Shyam Yadav R/o 43-C, Gokul Puri, Delhi claimed to be an eye witness of the incident and got recorded his statement alleging that on April 3, 2008 at about 6.30 p.m., while he was present at bus stand, he saw Inderpal @ Raju, driver of RTV No. DL- IV-0763 and one Imran @ Bhoore, a time keeper (Munshi) of RTV buses scuffling at Seelam Pur Metro Station. Though tried to save Raju, yet Bhoore stabbed Raju with knife and fled away from the spot. It was also revealed that one Arjun, conductor of above RTV had also witnessed the incident. After the incident, he (Harish Yadav) tied a shirt on the chest of Raju to prevent the loss SC No. 81/09 Page no. 4 of 36 STATE V. MOHD. SHAHZAD @ BHOORE of blood and rushed to Rajender Tripathi, owner of one RTV to arrange a vehicle to take the injured to hospital. However, when he along with Rajender Tripathi reached the place of occurrence, Raju had already been taken to the hospital. During investigation, statement of Rajender Tripathi and Arjun was also recorded.
5. During investigation, it was revealed that accused was a permanent resident of Meerut, accordingly several raids were conducted at his residence and ultimately on April 17, 2008, accused Imran @ Mohd. Shahzad @ Bhoore was arrested. On interrogation, he made a disclosure statement wherein he confessed his guilt and also disclosed that he had dumped the blood stained knife and clothes near MCD school, A Block, Seelam Pur, Delhi and also pointed out the said place. On inquiry, it was revealed that on April 4, 2008, on receipt of a call from PCR, one blood stained knife, two blood stained shirts and one blood stained pant were seized by the police of police station Seelam Pur from that particular place. Thereafter, the said exhibits were taken into custody from police station Seelam Pur. During investigation, exhibits were sent to FSL, Rohini for analysis.
SC No. 81/09 Page no. 5 of 36 STATE V. MOHD. SHAHZAD @ BHOORE
6. After completing investigation, challan was filed in the court of concerned learned Metropolitan Magistrate for the offence punishable under Sections 302 IPC.
7. After complying with the provisions of Section 207 Cr.P.C., case was committed to the Court of Sessions on July 19, 2008 by the court of learned Metropolitan Magistrate. Thereafter, case was assigned to this Court by learned Sessions Judge on July 25, 2008. Thereafter, this case was received on transfer by this Court on September 4, 2009, accordingly, case was registered as Sessions Case No. 81 of 2009.
8. Vide order dated August 14, 2008 a charge for the offence punishable under Section 302 IPC was framed to which accused pleaded not guilty and claimed trial.
9. To prove the guilt of accused persons, prosecution has examined 26 witnesses. For the purpose of discussion all witnesses have been classified in the following categories:-
SC No. 81/09 Page no. 6 of 36
STATE V. MOHD. SHAHZAD @ BHOORE
(A) Material Witnesses:
PW10 Sh. Rajender Tripathi, turned hostile PW12 Sh. Sunil Pandit,informed the PCR PW18 Harish Yadav, turned hostile PW24 Arjun Singh, eye witness (B) Medical Evidence:
PW8 Dr. Sushil, proved the MLC of deceased PW19 Dr. Sumit Tellewar, proved the post-mortem report (C) Formal witnesses:-
PW3 HC Mange Ram, duty officer, proved the FIR PW5 HC Surender Singh, who got admitted the injured in the hospital.
PW6 Lady const. Munesh Devi PW21 Ravinder Singh, identified the dead body PW22 Sh. Rupender, identified the dead body PW25 Sh. Prakash Singh, father of PW24 PW26 Insp. Jagdish Prashad, who traced PW24 (E) Connecting evidence witnesses:
PW1 HC Gajender Singh, duty officer, proved DD No. 13A PW2 HC Surender, MHCM PW4 W/Const. Renu, proved the information received at PHQ PW7 Const. Sunil Kumar, delivered the SC No. 81/09 Page no. 7 of 36 STATE V. MOHD. SHAHZAD @ BHOORE exhibits to FSL, Rohini PW9 ASI Satyadev Singh, duty officer, proved DD No. 2A PW11 HC Murari Lal, MHCM at PS Seelam Pur PW13 ASI Iftakhar Ahmed PW15 HC Bhupinder, joined the investigation with PW13 (F) Members of investigating agency:
PW14 HC Rajesh Kumar
PW16 Retired SI Sawrn Singh, joined the
investigation along with SI Anuj Nautial
PW17 SI Sanjay Dhodi, joined the investigation
along with SHO Shastri Park
PW20 SI Anuj Nautiyal, Ist investigating officer
of the case
PW23 ACP Jaswant Kaur, formal witness
10. Wife of deceased named Sarika was examined as a Court witness,CW1.
11. Thereafter, accused was examined under Section 313 Code of Criminal Procedure wherein he admitted that he was working as Munshi. Except that he denied all other evidence led SC No. 81/09 Page no. 8 of 36 STATE V. MOHD. SHAHZAD @ BHOORE by prosecution and took the plea that he has been falsely implicated in this case at the instance of Joginder. In support of his plea, accused has examined Satish Kumar as DW1.
12. After hearing arguments advanced by Sh. R.P. Tyagi, Advocate, counsel for accused and Sh. R.K. Tanwar, learned Additional Public Prosecutor for the State, court summoned the investigating officer ACP Jaswant Kaur as court witness vide order dated November 11, 2011. Accordingly, ACP Jaswant Kaur was examined as CW2 on November19, 2011.
13. Thereafter, accused was further examined under Section 313 Code of Criminal Proceudure, wherein accused denied the additonal incriminating evidence and refused to lead further evidence in his defence. Thereafter, additional arguments were heard advanced by counsel for parties and perused the record carefully.
14. Learned defence counsel strenuously contended that though prosecution case is based on the sole testimony of PW24 Mr. Arjun Singh, yet no reliance can be placed on his testimony because the presence of PW24 on the spot is doubtful. It was SC No. 81/09 Page no. 9 of 36 STATE V. MOHD. SHAHZAD @ BHOORE contended that even there is no evidence to show how the investigating officer came to know that PW24 had witnessed the incident. It was urged that PW24 had not informed the police after the incident, which cast a doubt over his presence at the spot.
Even he failed to tell the name of drivers and conductors of other RTVs. It was further urged that even after the incident, PW24 had neither raised any alarm nor took any action to call the police and this conduct shows that he was not present at the spot at the time of incident.
15. On the other hand learned Addl. Public Prosecutor vigorously contended that RTV bearing registration no. DL-1V- A-0763 was belonged to Joginder Singh, Phoofa of PW24, thus, PW24 used to be deployed on the RTV as a helper and on the day of incident he was very much present at the place of occurrence. It was argued that since PW24 was a boy of tender age, thus, after seeing the driver of his RTV in the pool of blood, he became scared and rushed to his house where he narrated the incident to his uncle Joginder Singh. It was argued that mere fact Joginder Singh had not informed about the incident to the police does not mean that PW24 was not present at the spot. It was submitted that there was no reason for the investigating officer to plant PW24 as SC No. 81/09 Page no. 10 of 36 STATE V. MOHD. SHAHZAD @ BHOORE an eye-witness. It was contended that there is no iota of evidence either to doubt the presence of PW24 at the spot or to discard his testimony. It was submitted that the contradictions pointed out by learned defence counsel are minor in nature and does not affect the prosecution case in any manner.
16. As per prosecution case, PW24 was working as a helper on the RTV, which belonged to Joginder Singh and on the day of incident, said RTV was being driven by deceased Raju. As per prosecution story, in the morning, said RTV was being driven by Joginder Singh himself but since he was having chest pain, he asked Raju (deceased) to drive the RTV for rest of the day. As per prosecution version, the incident had occurred in the presence of Arjun Singh, PW24.
17. When PW24 appeared in the witness box, he was between 18-19 years old whereas the incident had taken place about two years ago, thus, PW24 was between 16 to 17 years old at the time of alleged incident. Thus, his tender age is to be kept in mind at the time of appreciating his conduct.
18. Perusal of deposition of PW24 reveals that Joginder SC No. 81/09 Page no. 11 of 36 STATE V. MOHD. SHAHZAD @ BHOORE Singh had brought him from village and thereafter PW24 started doing the job of conductor /helper at the RTV, which belonged to Joginder Singh. He further deposed that initially, he was attached as a helper for about four months and thereafter he started doing the job of conductor on the said RTV. In his cross examination, he deposed that though, he was doing the job of helper on the RTV for last four months prior to the date of incident, yet, he stated before the police that earlier 3-4 times he had come at the RTV, on the ground that Joginder Singh asked him to state the same otherwise police would raise objection that how a minor had been employed on the RTV. From his testimony, it reveals that PW24 used to come on the RTV being the relative of Joginder Singh and initially, he acted as helper and thereafter started doing the job of conductor. But he was not having any badge from Transfer Authority and due to that reason the investigating officer had not seized any document to show that he was deployed as a conductor on the RTV. However, not having the badge is not a ground to draw an influence that PW24 was not present at the time of incident.
19. No doubt, PW23 ACP Jaswant Kaur, Investigating Officer had not disclosed in her testimony how she came to know SC No. 81/09 Page no. 12 of 36 STATE V. MOHD. SHAHZAD @ BHOORE that PW24 had witnessed the incident. Even no question was asked in this regard from her during her cross examination. Thus, no opportunity was furnished to the PW23 by the defence to explain how she came to know that PW24 had witnessed the incident. If defence intends to creat a doubt over the testimony of PW23 & PW24 on this account, it was the duty of defence to give an opportunity to PW23 to explain the same. Since, the testimony of PW23 in this regard remained unchallenged, I am of the view that no adverse inference can be drawn against PW23 & PW24. Moreover, on perusal of the statement of PW Harish Yadav recorded under Section 161 Cr.PC reveals that he had informed the investigating officer that the incident had also witnessed by PW24. Thus, it becomes clear that PW23 had come to know about PW24 during the interrogation of PW Harish Yadav. No doubt, PW Harish Yadav when appeared in the witness box as PW18, turned hostile completely by deposing that he did not know anything about the incident and nothing had happened in his presence. But mere fact that PW Harish Yadav turned hostile is not suffice to discard the testimony of PW24 if it is otherwise trustworthy.
20. Admittedly, PW24 had not informed the police when he SC No. 81/09 Page no. 13 of 36 STATE V. MOHD. SHAHZAD @ BHOORE had witnessed the alleged incident. However, in his testimony he furnished reasonable explanation for not informing the police by deposing that since he had scared, thus, he had gone to his house and narrated the incident to his uncle (Joginder Singh). PW24 was a boy of tender age between 16-17 years at the time of incident, if he had rushed to his house after seeing his driver in the pool of blood is not so unnatural which may cast any doubt over his presence at the place of occurrence. After reaching the house, he immediately informed about the occurrence to his uncle, thus it canot be said that he had not informed any one about the incident. No doubt, his uncle (Joginder Singh) had not informed the police on the very same day but for the fault of Joginder Singh, deposition of PW24 cannot be discarded, if it is otherwise trustowrthy.
20. Learned defence counsel had strongly relied upon judgement 'Shankar & Anr. vs. State (N.C.T.) of Delhi, 2010 (3) JCC 2067 to support his contention that since PW24 had neither raised any alarm nor informed any body including police, no reliance can be placed on his testimony.
21. I have gone through the said judgment. The facts of SC No. 81/09 Page no. 14 of 36 STATE V. MOHD. SHAHZAD @ BHOORE the case in hand are totally different from the facts in the said case. In the said case, wife of deceased had alleged that accused persons had assualted her husband in her house and gave beating to him and while they left from the house they had bolted the door from outside. It was further alleged that accused persons had also assulted the complainant as well as her mother-in-law. On the next day, she knocked the door of the room of her husband and found that he was dead. Complainant had not raised any alarm either at the time when acused persons assaulted her husband nor when accused persons slapped her and pushed her mother-n-law. In those pecular facts and circumstances, it was held that the conduct of complainant was unnatural because it is unbelieable that in such circumstances, the person would not raise an alarm in order to save himself. It was further held that the natural conduct of a person in such a situation would be to raise an alarm so that, hearing the alarm, his neighbours can come to their rescue and save them from further harm at the hands of the intruder. On the contrary, in the instant case, accused had not only killed the driver of the RTV of PW24 but also fled away from the spot. If after seeing his driver in the pool of blood, PW24 rushed to his house, his conduct cannot be called unnatural. To my mind, the above judgment is not helpful to the accused in any manner.
SC No. 81/09 Page no. 15 of 36 STATE V. MOHD. SHAHZAD @ BHOORE
23. Learned counsel further relied upon the judgment Alil Mollah and another v. State of West Bengal AIR 1996 Supreme Court-3471 in support of his contention that since PW24 had not intimated about the incident to any body, no reliance can be placed on his testimony. Again, to my mind, the said judgment is not helpful to the accused in any manner because the facts of the case in hand are totally different from the facts involved in the said case. In the said case, as per the prosecution version, the alleged witness had seen the occurrence and he was employee of the deceased. Despite that he did not inform anyone for two-three days despite the fact that police official was very much available and visited his village. In those pecular facts and circumstances, it was held that the conduct of the witness was unnatural and creates an impression that he had not witnessed of the occurrence. On the contrary, in the instant case, after rushing to his house, PW24 had immediately narrated the incident to his uncle (Joginder Singh) and on the next day when police contacted him, he narrated the entire incident.
24. Learned defence counsel contended that since PW24 SC No. 81/09 Page no. 16 of 36 STATE V. MOHD. SHAHZAD @ BHOORE failed to disclose the name of driver and conductor of other RTVs, no reliance can be placed on his testimony. Admittedly, at the time of incident, the driver and conductor of other RTVs were also present. Despite that none had come forward to make a statement before the police. PW24 in his deposition deposed that he had initially joined RTV of his uncle as helper and used to assist the conductor of RTV and thereafter he also started working as conductor on the RTV. No doubt, prima facie it appears seldom to believe that PW24 was not aware about the name of driver of other RTV but it may possible that at the time of incident, the RTV which were stationed/parked there, PW24 may not know the name of the driver and conductor of those RTVs. Thus, mere fact that PW24 failed to disclose the name of driver and conductor of other RTVs is not sufficient to discard his testimony or to doubt over his presence at the place of occurrence.
25. No doubt, PW24 in his deposition deposed that Harish Yadav had initially intervened in the quarrel which had taken place between accused and deceased and also separated them. It is also true that Harish Yadav when appeared in the witness box as PW18 did not support the prosecution case by deposing that no incident had occurred in his presence. But mere fact that PW18 SC No. 81/09 Page no. 17 of 36 STATE V. MOHD. SHAHZAD @ BHOORE turned hostile as won over by the accused is not a ground to discard the testimony of PW24, if it is otherwise trustworthy. The testimony of PW10 also proves that PW18 had been won over by the accused as PW10 in his testimony deposed that Harish Yadav (PW18) came at his shop and informed him about the quarrel at Metro station Seelam Pur with the munshi posted there. Thereafter, PW10 along with Harish Yadav reached the place of occurrence and found blood scattered on the ground with one blood stained shirt at the place of occurrence. Whereas PW18 stated that he had went to the shop of PW10 to make inquiry about the crowd gathered at Metro station only and had not informed about any such incident had taken place with the Munshi posted there. In these circumstances, it appears that PW18 had been won over by the accused. Mere fact that PW18 turned hostile completely is not sufficient to discard the testimony of PW24.
26. At last learned defence counsel contended that no reliance can be placed on the testimony of PW24 as he had disclosed a false name of his father.
SC No. 81/09 Page no. 18 of 36 STATE V. MOHD. SHAHZAD @ BHOORE
27. PW24 in his statement recorded under Section 161 Cr.P.C.; disclosed the name of his father as "Joginder" whereas when appeared in the witness box disclosed his father's name as "Prakash Singh". In his deposition, he clarified the controversy by deposing that since Joginder, his phoopha had brought him from the village and looked after him, he treated Joginder Singh as his father. He also clarified that in his school record, the name of his father is mentioned as "Prakash Singh". From his testimony, it becomes clear that PW24 has disclosed the name of 'Joginder Singh' before the investigating officer as his father being his guardian, thus the said lapse is not fatal to the prosecution case in any manner.
28. Learned counsel appearing for the accused vehemently contended that the recovery of blood stained knife and two shirts which were allegedly recovered on April 4, 2008 by the police of Saleem Pur cannot be used against the accused on the grounds namely that the said articles were not recovered pursuant to the information furnished by the accused. Secondly, that since police had already recovered the articles, the said recovery can not fall within the purview of Section 27 of the Evidence Act. Thirdly, SC No. 81/09 Page no. 19 of 36 STATE V. MOHD. SHAHZAD @ BHOORE that there is no evidence that the alleged blood stained shirts belonged to the accused. Fourthly, that no finger print was lifted from the alleged recovered knife. To support his contention, learned defence counsel relied upon Thimma versus State of Mysore, AIR 1971 SC 1871.
29. Per contra, learned Addl. Public Prosecutor contended that since investigating officer was not aware about the fact that any incriminating articles were recovered by the police of PS Seelampur, hence it can not be said that police was aware about the said recovery before April 17, 2008 when accused had made a disclosure statement.
30. It is admitted case of the prosecution that on April 4, 2008 ASI Laxmi of PCR informed the police of PS Seelam Pur that blood stained clothes and churi were lying at opposite A-322/23 near High School Tent. On receipt of this information, ASI Iftakhar Ahmad (PW13) and HC Bhupinder (PW15) reached there. They deposed that at in front of H.No. 322, near Tent wala school, they found one polythene containing two shirts, one pant and one knife having blood marks. PW13 after measuring the SC No. 81/09 Page no. 20 of 36 STATE V. MOHD. SHAHZAD @ BHOORE recovered knife sealed it in a separate pullanda and also sealed the recovered clothes in a separate pullanda. Colour of one shirt was of green, another shirt was of grey colour whereas the colour of pant was grey line-dar. Recovered knife is Ex. P-1, Pant is Ex. P-2 and shirts are Ex. P-3 and P-4.
31. In order to establish that the recovered clothes Ex. P-2 to P-4 were belonged to accused and knife Ex.P-1 is the Chura by which accused had committed murder, prosecution has relied upon his disclosure statement, which is exhibited as Ex. PW23/C. PW23 in his deposition deposed that accused disclosed that the blood stained clothes and weapon of offence i.e. knife/chura had been thrown by him in the bushes near Tent Wala School, Seelam Pur. Accordingly, he pointed the said place to the police party. Consequently, PW23 had prepared a pointing out memo, which is exhibited as Ex.PW14/E.
32. Crucial question is as to whether the alleged pointing out and recovery can be used against the accused?
33. It is admitted case of the prosecution that accused had SC No. 81/09 Page no. 21 of 36 STATE V. MOHD. SHAHZAD @ BHOORE made a disclosure statement, which is exhibited as Ex. PW23/C. Perusal of said disclosure statement reveals that accused had disclosed that he had put his blood stained clothes (two shirts and one pant) and blood stained knife in a polythene and had thrown near High School, New Seelam Pur. He did not state to the police that he had concealed the same in the bushes as deposed by PW23 in her testimony. Admittedly, the said blood stained clothes and knife were recovered by PW13 and PW15. Both in their deposition no where deposed that the said polythene was found concealing in the bushes. Thus, the testimony of PW23 to the extent that accused had disclosed that he had thrown the polythene containing said articles in the bushes is contrary to Ex. PW23/C, thus does not inspire any confidence.
34. If the polythene was not concealed in the bushes, it means that polythene was recovered from an open space. Since, the said open space was located near High School, thus it was definitely was a thoroughfare. Now question arises as to whether in such circumstances, the recovery will be admissible under Section 27 of the Evidence Act?
SC No. 81/09 Page no. 22 of 36 STATE V. MOHD. SHAHZAD @ BHOORE
35. In case State of H.P. v. Jeet Singh reported in AIR 1999 SC 1293, it was held that:
"Para 26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
36. In view of the said judgment, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. Unfortunately, there is no scintilla of evidence to prove that the place from where alleged polythene was recovered was not ordinarily visible to others. On the contrary, circumstances show that the said place was SC No. 81/09 Page no. 23 of 36 STATE V. MOHD. SHAHZAD @ BHOORE ordinarily visible to others because police of Seelampur reached there on receipt of PCR call, it means that some one had informed the police about the said polythene, which proves that the polythene was not concealed but was found from an open space and not only the space but polythene containing the incriminating articles were ordinarily visible to others. Accordingly, I am of the view that the said recovery does not qualify the test as laid down in the above case, hence recovery can not be used against the accused.
37. Next question arises as to whether PW23 was not aware about the alleged recovery by the police of Seelampur prior to April 17, 2008 as claimed by prosecution?
38. In case Thimma v. State of Kerala, AIR 1971 SC 1871, it was held that:
"Para 10 Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information, it was argued also lends support to the SC No. 81/09 Page no. 24 of 36 STATE V. MOHD. SHAHZAD @ BHOORE appellant's guilt. It appears to us that when PW 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances, be some what unsafe to rely on this information for proving the appellant's guilt. We are accordingly disinclined to take into consideration this statement.
(emphasis supplied)
39. In view of the law laid down in the above case, the testimony of PW23 will be analyzed to ascertain as to whether investigating officer was aware about the incriminating blood stained clothes and knife prior to April 17, 2008 or not. In this regard the testimony of PW23 is relevant. In her examination-in- chief, she deposed that on April 17, 2008 she had gone to PS Seelampur and from there she had collected two sealed parcels and one sealed parcel containing two blood stained shirts and one pant and another parcel containing churi from MHC (M). In her entire deposition, she did not disclose, how she came to know on SC No. 81/09 Page no. 25 of 36 STATE V. MOHD. SHAHZAD @ BHOORE April 17, 2008 that the said incriminating articles were in the possession of PS Seelampur. Rather from her testimony, it appears that it was already in the knowledge of PW23 that the said incriminating articles were in the possession of police of PS Seelampur. To seek clarification on this point, PW23 was summoned as Court Witness on November 19, 2011 and deposed that she can not tell who had told her about the fact that the said incriminating articles were recovered by police of PS Seelampur, whether said person was resident, shopkeeper, rahri wala, panwala, rickshaw puller etc. She further deposed that she had not even mentioned this fact in her case diary. Thus, there is no iota of evidence that PW23 had first time came to know on April 17, 2008 about the fact that the alleged incriminating articles were in the possession of police of PS Seelampur. Thus, the possibility that the recovery of alleged incriminating articles were already in the knowledge of PW23 prior to April 17, 2008 when accused had made a disclosure statement, can not be ruled out. Thus, in view of the law laid down in Thimma's case (supra) no reliance can be placed on the alleged recovery.
40. Besides above, there are other reasons also for not SC No. 81/09 Page no. 26 of 36 STATE V. MOHD. SHAHZAD @ BHOORE placing reliance on the alleged recovery. To prove the guilt of accused, prosecution has to connect the accused with the recovered clothes and churi. During investigation, no efforts were made to collect evidence that the alleged blood stained shirts and pant belonged to accused. Even the same were not shown to the witnesses of the incident to prove that the said shirts and pant belonged to the accused. Unless prosecution proves that the recovered shirt and pant are the same, which accused was wearing at the time of incident, no adverse inference can be drawn against him. But there is no scintilla of evidence to prove that the alleged recovered shirts and pant belonged to the accused. When a question was put to PW23, when appeared as CW2, whether any investigation was conducted to ascertain the fact that the recovered clothes belonged to accused, she stated that she had not conducted any investigation in this regard. Similarly, no efforts were made to pick up chance prints from the alleged churi. Mere fact that the blood of same group found on the above two shirts and pant as found from the spot is not sufficient to hold that the recovered shirts and pants belonged to accused.
41. Taking into account the above discussion, I am of the SC No. 81/09 Page no. 27 of 36 STATE V. MOHD. SHAHZAD @ BHOORE opinion that the recovery of blood stained churi Ex. P-1 and clothes Ex. P-2 to P-4 can not be used against the accused.
42. Now, question arises as to whether accused can be held guilty on the sole testimony of PW24 or not?
43. It is well established principle of law that no particular number of witnesses is required for the proof of any fact. It is not the quantity but the quality of a witness matters. If a witness is trustworthy, conviction can be recorded on the deposition of a single witness. Thus, to my mind, conviction can be recorded against the accused provided the testimony of PW24 is found trustworthy.
44. As discussed earlier that PW24 was present at the place of occurrence at the time of incident and he was working as conductor on the RTV No. DL-IV-0763. PW24 categorically deposed that accused was working there as munshi (Time keeper). The said RTV had been taken by his phoopha, Joginder Singh on contract basis. From his testimony, it reveals that he was working on the said RTV as helper and said RTV used to ply between SC No. 81/09 Page no. 28 of 36 STATE V. MOHD. SHAHZAD @ BHOORE Seelampur Metro Station to Shiv Vihar.
45. It also emerges from his testimony that on April 3, 2008 said RTV was being driven by his phoopha in the morning and when at about 10.00 am he reached Seelampur Metro Station, he had pain in his chest, thus requested Raju, deceased to drive the RTV for rest of the day. It is also established from his deposition that thereafter, Joginder Singh left for his house. Thus, after 10.00 am said RTV was being driven by deceased Raju and PW24 was doing the work of helper on the said RTV. In order to support the deposition of PW24 that on that day, Joginder had pain in his chest and left for his house after asking Raju to drive the RTV for rest of day, investigating officer did not deem it appropriate to record the statement of Joginder Singh in this regard. On the contrary, in his statement recorded under Section 161 Cr.P.C, which is exhibited as Ex. PW23/X, PW24 stated that his father (Joginder Singh) was not coming on RTV for 2-3 days as he was not feeling well. Thus, it is not clear whether his uncle Joginder Singh fell ill on April 3, 2008 all of sudden or he was not coming on the RTV for 2-3 days as stated in Ex. PW23/X. SC No. 81/09 Page no. 29 of 36 STATE V. MOHD. SHAHZAD @ BHOORE
46. In his deposition recorded on September 20, 2010 he deposed that hot words were exchanged between the accused and Raju (deceased) on account of accused asking Raju to move the vehicle ahead. On the contrary, from his deposition recorded on April 19, 2011 it emerges that the hot words were exchanged between them of not sending their RTV for next trip. In this regard PW24 deposed that it was the turn of our RTV, yet accused was sending the another RTV on the trip. He admitted that accused, who was munshi used to maintain a diary of the timings and trip of all RTVs and RTVs used to ply as per the entries made in the diary. He further deposed that their RTV reached Seelampur Metro Station about 2 to 2 ½ hours prior to incident after completing trip from Shiv Vihar. He further deposed that generally RTV gets a chance for next trip within 20 minutes. Thus, from his testimony, it appears that on that day, accused had not released the RTV of deceased for up to 2 to 2 ½ hours despite the fact that generally each RTV gets a chance for next trip within 20 minutes. He also deposed that there was no RTV in the queue and it was their turn. If there was no RTV in the queue where was the occasion for the accused to send another RTV. Thus, the testimony of PW24 is inconsistence on this point as it is not clear whether hot words were exchanged on the asking of accused to SC No. 81/09 Page no. 30 of 36 STATE V. MOHD. SHAHZAD @ BHOORE move the RTV ahead or on the point of not releasing the RTV of deceased for the next trip.
47. Further, in his deposition recorded on September 20, 2010, he deposed that accused had given a blow of knife at the chest of deceased. In his cross-examination, he deposed that accused had only given one knife blow on the chest of deceased in his presence. Thus, his testimony to that extent is contrary to the postmortem report, which states that three incised wound injuries were inflicted on the chest and shoulder of the deceased. On the contrary to his earlier deposition, PW24 in his testimony dated April 19, 2011 deposed that accused had given 2-3 blows of knife but the same were given in the abdomen. He also deposed that he understands the difference between abdomen and chest. Thus, there was no confusion in the mind of PW24, when he deposed that accused had given 2-3 blows of knife in the abdomen of deceased, which is not only contrary to his earlier deposition but also converse to the postmortem report. Thus, from his testimony it is not clear whether accused had given 2-3 blows or one blow or whether accused had inflicted injuries at the chest of deceased or at his abdomen.
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48. In his deposition, PW24 deposed that he was doing the job of helper on the said RTV for last four months. However, in his statement before the police Ex. PW23/X stated that he had come at the RTV about 3-4 times earlier also. About the said contradiction, PW24 deposed that he had stated so before the police in Ex. PW23/X at the instance of Joginder Singh otherwise police would ask him that he (Joginder Singh) had employed a child on the RTV. It means that before PW24 was examined by the investigating officer, Joginder Singh had tutored him.
49. In his cross-examination, PW24 deposed that when accused inflicted the injuries to the deceased, 6-7 persons were present at the spot and they were drivers and conductors of other RTVs. Yet no effort was made to interrogate them. He further deposed that when accused was inflicting injuries by knife, no one had tried to separate them. He further deposed that Harish Pahelwan had tried to separate them when quarrel took place between the accused and deceased initially and he (Harish Pahelwan) did not try to separate them when accused came running with knife and inflicted injuries to Raju. Whereas in his SC No. 81/09 Page no. 32 of 36 STATE V. MOHD. SHAHZAD @ BHOORE statement before the police, which is Ex. PW23/X stated that when accused had given a blow of knife at the chest of deceased, Harish Pahelwan tried to separate them. This shows that PW24 was changing his version swiftly, which is not corroborated from any other evidence.
50. PW24 deposed that after the incident, police had seized his RTV, whereas the said RTV was never seized by the police. In his statement Ex. PW23/X he disclosed the registration number of RTV as DL-IV-0763 and he reiterated the same in his deposition made before the Court on September 20, 2010 and April 19, 2011. Since, PW24 claimed that he was working on the said RTV for last four months, thus he was supposed to know the exact registration number of RTV. He no where deposed that he did not remember the complete registration number of RTV, rather he consistently stated that the registration number of RTV was DL-IV-0763 whereas it was DL-IV-A-0763. Though during her testimony, when investigating officer was called as Court witness made an attempt to justify the said mistake by labeling it as typographical error but there is nothing on record, which may suggest that PW24 had deposed the incomplete registration SC No. 81/09 Page no. 33 of 36 STATE V. MOHD. SHAHZAD @ BHOORE number before the police and court. Thus, the explanation furnished by PW23 can not fill up the lacuna created by PW24 in his deposition.
51. Cumulative effect of above contradictions impels this Court not to accept the uncorroborative testimony of PW24. Rule of prudence also demands that considering the paradoxical testimony of PW24, it will not be safe to record conviction on his uncorroborative deposition. Prosecution has failed to adduce any other evidence to prove the guilt of accused.
52. Learned defence counsel also points out certain inherent defects in the investigation. It is admitted case of the prosecution that one blood stained shirt and blood stained one right leg shoe were recovered from the spot and the same were seized vide memo Ex. PW14/A. Police also seized the clothes of deceased in the hospital vide memo Ex. PW20/A. Since, police had seized the clothes of deceased in the hospital, question arises to whom the shirt and shoe belonged to, which were recovered from the spot. When PW23 was summoned as Court witness, she deposed that the said shirt belonged to public person, who tied the SC No. 81/09 Page no. 34 of 36 STATE V. MOHD. SHAHZAD @ BHOORE shirt on the wound of deceased. PW Harish Pahelwan also stated so in his statement recorded under Setion 161 Cr.P.C. Question arises, if the shirt was tied on the wound of deceased, then who had opened it. But no investigation was conducted in this regard.
53. Investigating officer when appeared as Court witness deposed that the blood stained shoe which was recovered from the spot was belonged to the deceased. But surprisingly, left leg shoe was not found either at the spot or in the hospital. On the converse, she deposed that deceased was found bare foot in the hospital. It is also not clear, how she came to the conclusion that the shoe found on the spot belonged to the deceased, when deceased was found bare foot in the hospital.
54. During investigation, investigating officer had prepared the site plan and same is exhibited as Ex. PW23/B but surprisingly in the site plan, investigating officer did not deem it appropriate to show the position of PW Harish Pahelwan and PW24 Arjun Singh who claimed to witness the occurrence. By not showing the said information in the site plan, investigating officer deprived this Court to appropriate the fact whether both the SC No. 81/09 Page no. 35 of 36 STATE V. MOHD. SHAHZAD @ BHOORE witnesses particularly PW24 was in a position to witness the occurrence or not. Even investigating officer did not think it appropriate to get prepare a scaled site plan.
56. Pondering over the on going discussion, I am of the considered opinion that prosecution has failed to establish the guilt of accused beyond the shadow of all reasonable doubts. Accordingly, I hereby acquit the accused Mohd. Shahzad @ Bhoore for the offence punishable under Section 302 IPC.
Announced in the open Court On this 28th day of November 2011 (PAWAN KUMAR JAIN) ADDITIONAL SESSESIONS JUDGE-01 CENTRAL DISTRICT, THC, DELHI SC No. 81/09 Page no. 36 of 36 STATE V. MOHD. SHAHZAD @ BHOORE SC No. 81/09 Page no. 37 of 36