Delhi District Court
State vs Mohd Salim on 23 December, 2023
THE COURT OF SH. SUNIL KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE-09, WEST
TIS HAZARI COURTS, DELHI
CNR No : DLWT01-004301-2018
Sessions Case No : 311-2018
FIR No : 23-2018
Police Station : Khyala
Under Sections : 302/323/34 IPC
STATE
VERSUS
1. MOHD. SALIM
S/o Sh. Yusuf Ali
R/o RGB-147, Ground Floor
Raghubir Nagar, Delhi.
2. AKBAR ALI
S/o Late Sh. Anwar Hussain
R/o RGB-206, 3rd Floor
Raghubir Nagar, Delhi.
3. SHAHNAJ BEGUM
W/o Sh. Akbar Ali
R/o RGB-206, 3rd Floor
Raghubir Nagar, Delhi.
...Accused Persons
FIR No. 23-2018, PS Khyala
SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 1 of 121
Date of Institution 01.05.2018
Date of receiving by this Court 14.05.2018
Date of conclusion of 09.12.2023
arguments
Date of announcement of 23.12.2023
judgment
Final order Accused A-1 (Mohd. Salim) &
A-2 (Akbar Ali) are convicted
for the charge of the offences
punishable under Section 302
IPC read with Section 34 IPC.
Accused A-3 (Shahnaj Begum)
is convicted for the charges of
the offences punishable under
Section 302/323/34 IPC.
JUDGMENT:
LAW CANNOT AFFORD ANY FAVAOURITE OTHER THAN TRUTH:
1. Truth should be the guiding star in the entire judicial process. Truth is the foundation of justice. Dispensation of justice, based on truth, is an essential feature in the justice delivery system. People would have faith in the Courts when truth alone triumphs. The justice based on truth would establish peace in the society.
1.1. Hon'ble Justice Krishna Iyer in Jasraj Inder Singh Vs. Hemraj Multan Chand, (1977) 2 SCC 155 described truth and justice as under:
"...Truth, like song, is whole, and half truth can be noise! Justice is truth, is FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 2 of 121 beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness".
1.2. Primary objective of criminal justice system is to ensure justice to all. This finds reiteration by the Hon'ble Supreme Court of India in the judgment reported at (2012) 8 SCC 263. Dayal Singh Vs. State of Uttranchal when the Court emphasized thus:
"34. Where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The courts do not merely discharge the function to ensure that no innocent man in punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subverted. For truly attaining this object of a "fair trial", the Court should leave no stone unturned to do justice and protect the interest of the society as well.
1.3. Every criminal trial is primarily a voyage of discovery in which the truth is the quest. Truth and Justice are FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 3 of 121 the two most reverent values apotheosized by mankind since time immemorial. Law acts as a conjunction between the two aforementioned venerable streams of human values. However, in a criminal trial there are situations when Truth seems to be obscure and Justice appears to be obfuscated under the mist of chicanery and mendacity. The Hon'ble Apex Court in Zahira Habib Ullah Sheikh v. State of Gujarat (2006) 3SCC 374 also remind the courts and judges of their sacrosanct duty to uphold these sublime values and vindicate the triumvirate of Truth, Law and Justice.
2. Accused persons viz. Mohd. Salim, Akbar Ali and Shahnaj Begum (hereinafter referred as to "accused A-1, accused A-2 & accused A-3") were committed to the Court of Sessions to stand trial for the offences punishable under Sections 302 & 323 IPC read with Section 34 IPC for committing murder of deceased Ankit Saxena.
FACTS OF THE CASE
3. The prosecution case in narrow compass is that on 01.02.2018 on receipt of DD No. 41A, SI Anand Prakash (PW-
24) along with Ct. Deepak (PW-19) reached at RGA Block, Road No. 29 Footpath, Opposite Blind University, Raghubir Nagar, Delhi and found gathering of crowd at that place. The blood in large quantity was also found scattered infront of Shop of Chatwal Auto Works. Two persons viz. Anmol (PW-22) and Nitin (PW-13) met them and informed that their friend injured/victim Ankit Saxena had been taken to the hospital by his parents.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 4 of 121 3.1. In the meantime, SI Anand Prakash received another DD No. 42A and accordingly, he left the spot for Guru Gobind Singh Hospital after directing and leaving Constable Deepak to guard the spot. In the hospital, he collected MLC No. 56215/18 (Ex. PW-7/A) of Ankit Saxena wherein, the concerned doctor has mentioned "brought dead". Smt. Kamlesh Saxena (PW-17) W/o Sh. Yashpal Saxena was also found admitted in the said hospital vide MLC No. 56216/18 ( Ex. PW7/B). In the meantime, Inspector Sunil Kumar (PW-28) (In short "Investigating Officer") along with other staff members reached in the said hospital. Sh. Yashpal Saxena (PW-2), father of the deceased, in the meantime also met SI Anand Prakash and claimed himself to be the eye witness of the incident. Dead body of the deceased was preserved in the mortuary of Guru Gobind Singh Hospital through Constable Roop Singh (PW-21). Crime Team was informed for inspecting the crime scene.
3.2. Thereafter, the Investigating Officer along with staff members and said Yashpal Saxena reached at the spot and met with the Crime Team. The spot was inspected by the Crime Team.
3.3. SI Anand Prakash recorded the statement of the eye witness Sh. Yashpal Saxena/PW-2 (In short "the complainant") wherein, the complainant had stated that he was residing with his family in Raghubir Nagar and was having his private business/profession. His family consist of himself, his wife and his son Ankit Saxena, aged about 23 years, who was a FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 5 of 121 photographer. On 01.02.2018, he was present with his wife at his home whereas, his son Ankit Saxena had gone out of the house. At about 08.00 PM, the complainant received a phone call on his mobile number 98XXXXXX28 from mobile number 70XXXXXX45 informing that some people are quarreling with his son Ankit Saxena on a road infront of Andh Mahavidyalaya. He was called to the spot immediately. The complainant along with his wife immediately reached at the main road and saw that Akbar Ali, Shahnaj Begum, their son 'A' (JCL) and Mohd. Salim were quarreling with Ankit Saxena and were saying that "हररमजरदद आज तद रद कक नहह छकडड गद " (haramjade aaj tere ko nahi chhodenge). Accused A-3 (Shahnaj Begum) was abusing and scuffling with Ankit Saxena by saying that "आज तद रर करम तमरम करनर हह " (aaj tera kaam tamam karna hai). When his wife made an attempt to prevent the accused A-3 from hitting her son, accused A-3 started beating and scuffling with his wife. He tried to save his wife from accused A-3 but was pushed by accused A-
3. He could not make more efforts being a heart patient and sufferer of other illnesses. Accused A-1 (Mohd. Salim) and JCL 'A' were saying to his son Ankit Saxena that "हमररद घर कह इजजत कद सरथ खखलवरड करनद कर नतहजर तत झद बतरतद हह " (hamare ghar ki ijjat ke sath khilwad karne ka natija tujhe batate hai). Accused A-2 (Akbar Ali) stated to his son Ankit Saxena that "मद रह बद टह शहजरदह कर पहछर तत एद सद नहहह छकडद गर" (meri beti Shehzadi ka pichcha tu aise nahi chhodega). His son Ankit Saxena replied that he has not done anything and they are free to call the police, but accused A-2, accused A-1 and JCL 'A' started abusing his son Ankit Saxena in a high pitch.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 6 of 121 3.4. The complainant further stated that in the meantime, accused A-3 shouted in loud voice that "तत महड कसम हह अललरह कह खक इसकक अरज नहहह छकडनर" (tumhe kasam hai allah kee ki isko aaj naho chhodna). On hearing the same, accused A-1, accused A-2 and JCL 'A' surrounded complainant's son Ankit Saxena. Accused A-1 caught hold the right hand of complainant's son whereas, JCL 'A' caught hold of his left hand and accused A-2 caught hold of his hairs and silted the throat of his son Ankit Saxena (In short "the deceased"), due to which Ankit Saxena fall down on the footpath. The complainant and his wife were shocked (jyada ghabra gaye) because their son was lying in blood before them. Huge crowd gathered on the spot. The complainant with the help of his wife and other public persons took his son in an e-rickshaw to Guru Gobind Singh Hospital (In short "GGS Hospital") where, the concerned doctor declared him "brought dead". Accused A-2 & accused A-3 along with their daughter Shehzadi and JCL 'A' were earlier residing in the street of the complainant. They had changed their address recently. All the accused persons have murdered his deceased son. The complainant had prayed for taking legal action against them.
3.5. Considering the aforesaid complaint (Ex.PW2/A) and the MLC of the deceased (Ex.PW7/A), FIR (Ex.PW23/C) under Section 302/323/34 IPC was registered at PS Khyala.
3.6. During investigation, blood, earth control & blood were lifted from the spot with the help of gauze piece and same were seized vide seizure memo Ex.PW2/B and sealed with the FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 7 of 121 seal of SK. SI Anand Prakash also seized the cloths of the deceased. Report of the Crime Team was also received by the Investigating Officer, who also prepared site plan of the spot vide Ex.PW24/B at the instance of the complainant. The complainant had also handed over his blood stained cloths to the Investigating Officer by informing that the said cloths were worn by him at the time of incident and at the time of taking his son Ankit to the hospital. Blood stains from blood of deceased Ankit have also come on these clothes while taking him to the hospital. The same were seized vide seizure memo Ex.PW2/C and sealed with the seal of SK. The complainant also produced black colour jacket, while colour socks having blood of the deceased and brown colour shoes of the deceased to the Investigating Officer. Same were seized vide seizure memo Ex.PW2/D and sealed with the seal of SK.
3.7. During investigation, Investigating Officer came to know that during quarrel, accused A-1 (Mohd. Salim) was caught by the public and handed over to PCR Officials, who handed over him to the Duty Officer, PS Khyala. The accused A- 1 was interrogated, his disclosure statement Ex. PW24/E was recorded and thereafter he was arrested vide arrest memo Ex. PW24/C. Accused A-1 was also personally searched vide personal search memo Ex. PW24/D. Accused A-1 also produced blood stained cloths worn by him at the time of incident and same were seized vide seizure memo Ex. PW-24/K. Spot identification (Ex. PW24/F) was also done by the accused A-1 (Mohd. Salim) and Scooty bearing registration no. DL-4SBX- 9455 was seized vide seizure memo Ex. PW24/G at his instance.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 8 of 121 3.8. During investigation, at the instance of accused A-1, accused A-2 (Akbar Ali) & accused A-3 (Shahnaj Begum) were interrogated and arrested vide arrest memos Ex. PW24/H and Ex. PW16/A respectively. Accused A-2 was personally searched vide personal search memo Ex. PW24/I. Accused A-3 was also personally searched vide personal search memo Ex. PW16/B. Disclosure statement (Ex. PW24/O) of the accused A- 2 and disclosure statement (Ex. PW16/D) of accused A-3 were recorded. Accused A-2 disclosed that he had thrown the knife near drainage (Naala) after committing the murder of deceased Ankit. He can get the same recovered. Accused A-2 produced blood stained clothes worn by him at the time of commission of offence and same were seized vide seizure memo Ex.PW24/I and sealed with the seal of SK. Scooty used by the accused persons for fleeing away from the spot bearing No. DL-4SBX- 9626 (Ex. MO35) was seized by the Investigating Officer at the instance of accused A-2 whereas Scooty bearing No. DL-9SAY- 6281 was also seized vide seizure memo Ex. PW24/M by the Investigating Officer at the instance of accused A-1. Site plan Ex. PW24/S was also prepared at the instance of both the accused persons.
3.9. During investigation on 02.02.2018, the complainant and his brother-in-law (Sala) Sanjay Kumar identified the dead body of the deceased vide Memo Ex. PW2/E and Ex. PW5/A. Postmortem was conducted vide report Ex. PW14/A and the dead body of the deceased was handed over to them vide Memo Ex.PW2/F. Autopsy surgeon after conducting the postmortem FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 9 of 121 handed over sealed pullandas i.e. (i) blood in gauze piece and (ii) clothes of the deceased along with sample seal of PM DDUH. The same were seized vide seizure memo Ex.PW24/P. Medical examinations of the accused persons at GGS Hospital, Raghubir Nagar were conducted. Blood sample of the accused A-1 & A-2 were taken vide memos Ex. PW20/A & Ex. PW3/A respectively. All the accused persons were produced in the court.
3.10. On 03.02.2018, during police custody, accused A-2 took the Investigating Officer to Ganda Naala Road and at his instance, one knife (Ex. MO-10) having aluminum handle and iron blade and having the blood stains was recovered vide pointing out memo-cum-recovery memo Ex. PW24/R. Sketch of the same was prepared on a white paper vide Ex. PW24/Q and its total length was found to be 23 cm whereas the length of its handle was found to be 9.7 cm and length of its blade was 13.3 cm. The breadth of said knife was 4.5 cm. Same was kept in a plastic container, seized and sealed with the seal of SK.
3.11. JCL 'A' was apprehended at the instance of accused A-2. He was produced before JJB, Kingsway Camp and was sent to Observation Home.
3.12. During investigation, statements of Anmol, Ankit, Kamlesh and Gulshan Raj were recorded. Postmortem report was collected. Statements of eye witness PW-22 Anmol (Ex. AD-1) and PW-13 Nitin (Ex. AD-2) were recorded u/s. 164 Cr.P.C. Final opinion on the MLC (Ex. PW7/B) of injured Kamlesh Saxena/PW-17 was obtained and the treating doctor opined the FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 10 of 121 same as simple/blunt. Statement of Crime Team Incharge ASI Mukesh (PW-10), photographer Ct. Parvinder (PW-11) were recorded and photographs were collected from the Crime Team. Spot was got inspected on 28.02.2018 from ASI Om Prakash, Draftsman (PW-1). Scaled site plan Ex.PW1/A was obtained. Exhibits were sent for examination to FSL, Rohini. PCR form (Ex. AD-3) was obtained. Call detail record of mobile phone Nos. 7011710645, 8383950203, 9560737365, 7042207657, 9818915259, 9811532783 and 9599119917 and Customer Application Forms of aforesaid seven mobile phones were collected. Mobile No. 9560737365 was found to be of deceased Ankit Saxena and mobile phone No. 7042207657 was found to be of Shahzadi and same shows that both were talking with each other. Mobile phone No. 7011710645 was found to be of PW-6 Gulshan Raj. Mobile phone No. 8383950203 of accused A-2 and mobile phone No. 9818915259 was found to be of accused A-3 and mobile phone No. 9811532783 was found to be of accused A-1.
3.13. During investigation, statements of various eye witnesses and other witnesses of the investigation, were recorded. On completion of the investigation, the charge sheet was prepared and same was filed before the Court.
COGNIZANCE
4. On 03.05.2018, learned Metropolitan Magistrate, West District, THC, Delhi took the cognizance of the offences.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 11 of 121 CHARGE
5. Vide order dated 25.05.2018, learned Predecessor of this Court has framed the charges for the offences punishable under Sections 302, 323 read with section 34 IPC against the accused persons viz. Mohd. Salim (Accused A-1), Akbar Ali (Accused A-2) and Shehnaj Begum (Accused A-3), to which all the accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
6. To bring the guilt of the accused persons on record, the prosecution has examined the following 28 witnesses in support of its case:
Sr. Name of witnesses Crux of testimony No.
1. PW-1 ASI Om A formal witness of the Prakash investigation, who inspected the spot with complainant Sh. Yashpal Saxena and Investigating Officer and prepared its scaled site plan Ex.
PW1/A. This witness was cross examined by the learned defence counsels.
2. PW-2 Sh. Yashpal He is the star witness of the Saxena prosecution being the complainant as well as eye witness of the incident.
His evidence is relevant for proving the allegations of committing murder of his deceased son by the accused persons and also for establishing the identity of the accused persons as well as the manner of committing the murder of FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 12 of 121 his deceased son.
This witness has tendered the following documents during his deposition:
a) complaint/statement : Ex. PW2/A
b) seizure memo of blood sample, earth control etc, lifted from the spot : Ex. PW2/B
c) seizure memo of his wearing cloths at the time of incident having blood stains of his deceased son : Ex. PW2/C
d) seizure memo of brown colour shoes, white socks and black jacket of his deceased son : Ex. PW2/D
e) identification memo of the dead body of his deceased son before postmortem : Ex. PW2/E
f) receiving memo of the dead body of his deceased son after postmortem : Ex. PW2/F
g) pullanda with the noting of "cloths of Yashpal Saxena" i.e. one blue colour shirt having stains and a light off white colour pant having stains : Ex. PW2/G1
h) pullanda of brown colour stains shoes(make founder), black colour FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 13 of 121 leather jacket torn with some places with stains, white colour shocks of his deceased son : Ex. PW2/G
h) pullanda containing blood gauze : Ex. PW2/H
i) pullanda containing stained earth control : Ex. PW2/I
j) pullanda containing piece of stain tile : Ex. PW2/J This witness has also identified all the accused persons by pointing towards each of them and by naming them correctly during the trial.
This witness was cross examined at length by the learned respective defence counsels.
3. PW-3 Ct. Praveen He is the formal witness of Kumar investigation as he transmitted the copy of FIR to various Senior Officers and also got conducted the medical examination of accused A-
2 and blood sample of the said accused was taken.
This witness has tendered the following documents during his deposition:
a) seizure memo of blood sample of accused A-2 with sample seal FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 14 of 121 : Ex. PW3/A This witness has also identified the accused A-2 during trial.
This witness was also cross examined at length by the learned respective defence counsels.
4. PW-4 Sh. Ankush A formal witness of the investigation, who reached at the spot upon receiving information from his friend Anmol Singh (PW-
22) regarding the murder of their friend Ankit Saxena. He saw that accused A-1 was already seated in the PCR Van and he took Anmol to the hospital and met with the parents of the deceased and his friend Nitin (PW-13) in the hospital. He also went to Tagore Garden Metro Station with Nitin (PW-13) and met Shehzadi and brought her to the Khyala Police Station.
This witness has also identified the accused A-1 during trial.
This witness was also cross examined at length by the learned defence counsel.
5. PW-5 Sh. Sanjay A formal witness of the Kumar investigation, who identified the dead body of deceased Ankit Saxena in the hospital vide his statement :
Ex. PW5/A This witness was not cross FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 15 of 121 examined by the learned defence counsel despite being given opportunity for the same.
6. PW-6 Sh. Gulshan He is the investigation witness and Raj saw the starting of quarrel between complainant's son and some unknown persons. He telephonically informed the complainant about the same and left the spot.
This witness was also not cross examined by the learned defence counsel despite being given opportunity for the same.
7. PW-7 Dr. Shikha She is the medical witness and Aora, Medical declared the deceased as 'brought Officer, GGS dead'. She also medically examined Hospital Smt. Kamlesh Saxena (PW-17), mother of deceased.
This witness has tendered the following documents during her testimony:
a) MLC of the deceased : Ex. PW7/A
b) MLC of Smt. Kamlesh Saxena, mother of deceased : Ex. PW7/B This witness was not cross examined by the learned defence counsel despite being given opportunity for the same.
8. PW-8 Sh. Rajeev A formal witness of the Vashisth, Nodal investigation, who produced the Officer, Bharti Airtel, CDRs and CAFs of various mobile Delhi. numbers.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 16 of 121 This witness has tendered the following documents during his deposition:
a) CDRs for the period from 01.01.2018 to 01.02.2018 of mobile number 9560737365 issued to deceased : Ex. PW8/A
b) Copy of customer application from of the said mobile number : Ex. PW8/B (OSR)
c) CDRs for the period from 01.01.2018 to 01.02.2018 of mobile number 7042207657 issued to deceased : Ex. PW8/C
c) Copy of customer application form of the said mobile number : Ex. PW8/D (OSR)
d) CDRs for the period from 31.01.2018 to 01.02.2018 of mobile number 9818915259 of accused A-3 : Ex. PW8/E
e) Copy of customer application form of the said mobile number : Ex. PW8/F (OSR)
f) Certificate under Section 65B of Indian Evidence Act qua the aforesaid records : Ex. PW8/G This witness was duly cross examined by the learned defence FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 17 of 121 counsel.
9. PW-9 Dr. R.K. He is the medical witness of the Chaubey, Medical facts that he examined the accused Officer, GGSGH, A-1 & A-2 and also collected their Raghubir Nagar, blood samples in gauze piece and Delhi. handed over the same to the Investigating Officer.
This witness tendered the following documents during his deposition:
a) MLC of accused A-2 : Ex. PW9/A
b) MLC of accused A-1 : Ex. PW9/B This witness was cross examined by the learned defence counsel.
10. PW-10 ASI Mukesh He is the witness of crime scene inspection being the Incharge of Mobile Crime Team.
This witness has tendered the following documents during his deposition:
a) Crime Scene Report : Ex. PW10/A
b) Photographs of the spot : Ex. PW10/B (Colly, 28 photographs) This witness was duly cross examined by the learned defence counsel.
11. PW-11 Head He is the witness of investigation.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 18 of 121 Constable Parvinder He took the photographs of the spot being the photographer of Mobile Crime Team.
This witness has tendered the following documents during his deposition:
a) CD containing the photographs : Ex. PW11/A
b) Certificate under Section 65B of Indian Evidence Act : Ex. PW11/B Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
a) Photographs : Ex. PW10/B (Colly, 28 photographs) This witness was cross examined by the learned defence counsel.
12. PW-12 Mr. Pankaj A formal witness who produced the Sharma, Nodal CDRs, CAFs and Location Charts Officer, Reliance etc., of various mobile number. JIO, Delhi.
This witness has tendered the following documents during his deposition:
a) Customer application forms and E-KYC documents of mobile numbers 7011710645 & 8383950203 : Ex. PW12/A FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 19 of 121 & : Ex. PW12/B
b) CDRs for the period from 31.01.2018 to 01.02.2018 of both the aforesaid mobile numbers : Ex. PW12/C (Colly)
c) Location charts of both the aforesaid mobile numbers : Ex. PW12/D
d) Certificate under Section 65B of Indian Evidence pertaining to the aforesaid records : Ex. PW12/E This witness was duly cross examined by the learned defence counsel.
13. PW-13 Sh. Nitin He is also star prosecution witness being friend of the deceased and acquainted with all the accused persons and JCL 'A' as well as Shehzadi daughter of accused A-2 & accused A-3. He saw that all the accused persons have apprehended his friend Ankit Saxena and were giving beatings to him. He tried to protect his friend and left the spot upon the request of his deceased friend Ankit Saxena who informed him that Shehzadi was standing near Tagore Garden Metro Station and requested him to bring her to the police station. However, he received the information from Anmol Singh (PW-22) that "Ankit ka gala kaat diya hai, tu kaha hai". He also informed Shehzadi about the same and went to GGS Hospital. He came FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 20 of 121 back to Tagore Garden Metro Station with his friend Ankush (PW-
4) and met with Shehzadi. They brought her to Khyala Police Station.
This witness has tendered the following documents during his deposition:
a) His statement recorded under Section 164 Cr. P.C : Ex. PW13/A (Colly, 3 pages) This witness was duly cross examined at length by the learned defence counsel.
14. PW-14 Dr. Neeraj He is the medical witness and has Kumar Garg, Sr. conducted the postmortem over the Medical Officer dead body of the deceased and also gave subsequent opinion qua weapon of offence.
This witness has tendered the following documents during his deposition:
a) Postmortem Report of the deceased : Ex. PW14/A
b) Subsequent opinion dated 16.02.2018 qua weapon of offence : Ex. PW14/B
c) Rough sketch diagram of the knife : Ex. PW14/C
d) Weapon of offence i.e. knife FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 21 of 121 : Ex. PW14/D This witness was duly cross examined at length by the learned defence counsel.
15. PW-15 ASI He visited the spot on receipt of Gangadharan PCR Call from Cement Godown, Raghubir Nagar, Khyala and found that public persons had caught hold of accused A-1. He handed over the accused A-1 to the Duty Officer, PS Khyala.
This witness was duly cross examined by the learned defence counsel.
16. PW-16 W/Ct. Kranta She is the witness of the investigation as various investigations were carried out in her presence.
This witness has tendered the following documents during her deposition:
a) Arrest memo & personal search memos of accused A-3 : Ex. PW16/A & : Ex. PW16/B
c) Pointing out memo of the spot prepared at the instance of accused A-3 : Ex. PW16/C
d) Disclosure statement of accused A-3 : Ex. PW16/D This witness has also identified the FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 22 of 121 accused A-3 during trial.
This witness was duly cross examined at length by the learned defence counsel.
17. PW-17 Smt. Kamlesh She is also star witness of the Saxena prosecution being the mother of the deceased and eye witness of the incident as well as injured herself.
This witness has tendered the following documents during her deposition:
a) Seizure memo of her wearing cloths on the date of incident : Ex. PW17/A This witness was duly cross examined at length by the learned defence counsel.
18. PW-18 Sh. Saurabh A formal witness, who produced the Aggarwal, Nodal CDRs, CAFs and Location Charts Officer, Vodafone, etc., of mobile number 9811532783 Delhi. of accused A-1.
This witness has tendered the following documents during his deposition:
a) Certified copy of customer application form of mobile number 9811532783 of accused A-1 : Ex. PW18/A (OSR)
b) Forwarding letter dated 24.03.2018 : Ex. PW18/B
c) CDRs of the said mobile number from the period w.e.f. 31.01.2018 to FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 23 of 121 01.02.2018 : Ex. PW18/C
d) Certificate under Section 65B of Indian Evidence qua the aforesaid records : Ex. PW18/D
e) Location chart of the aforesaid mobile number : Ex. PW18/E
f) His authority letter : Ex. PW18/F (OSR) This witness was duly cross examined by the learned defence counsel.
19 PW-19 Ct. Deepak He visited the spot along with SI Anand Prakash and got the present FIR registered.
This witness has tendered the following documents during his deposition:
a) Tehrir : Ex. PW19/A
b) DD No. 41A : Ex. PW19/B This witness was duly cross examined at length by the learned defence counsel.
20. PW-20 Ct. Magan He got conducted medical examination of accused A-1.
This witness has tendered the following documents during his deposition:
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 24 of 121
a) Seizure memo of sample seal and sealed parcel by Investigating Officer : Ex. PW20/A Apart from tendering the aforesaid documents, this witness has also relied upon MLC of accused A-1 : Ex. PW9/B This witness was not cross examined by the learned defence counsel despite being given opportunity for the same.
21. PW-21 Ct. Roop A formal witness of the Singh investigation regarding preservation of dead body of the deceased in the mortuary.
This witness has tendered the following documents during his deposition:
a) Application handed over to him by SI Anand Prakash for depositing and preserving the dead body of the deceased : Ex. PW21/A
b) Acknowledgment of depositing 14 sealed parcels at FSL, Rohini : Ex. PW21/B
c) Road Certificate qua depositing of aforesaid 14 sealed parcels at FSL, Rohini : Ex. PW21/C This witness was not cross examined by the learned defence counsel despite being given opportunity for the same.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 25 of 121
22. PW-22 Sh. Anmol He is the important star witness of Singh the prosecution being the eye witness of entire incident.
This witness has tendered the following documents during his deposition:
a) his statement under section 164 Cr. P.C : Ex. AD-1 This witness has also identified the accused persons as well as the weapon of offence i.e. knife during his deposition in the Court.
This witness was duly cross examined at length by the learned defence counsel.
23. PW-23 HC Dinesh He is the formal witness of the Chand investigation and recorded some DDs as well as FIR in this case being the Duty Officer.
This witness has tendered the following documents during his deposition:
a) DD No. 42A : Ex. PW23/A
b) DD No. 44A : Ex. PW23/B
c) Copy of FIR : Ex. PW23/C
d) Certificate under Section 65B of
Indian Evidence Act
: Ex. PW23/D
Apart from tendering the aforesaid
documents, this witness has also
FIR No. 23-2018, PS Khyala
SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 26 of 121
relied upon the DD No. 41A
: Ex. PW19/B
This witness was cross examined by
the learned defence counsel.
24. PW-24 SI Anand He is the 1st Investigating Officer
Prakash and conducted various stages of
investigation. He was also involved in the various stages of investigation during investigation of the present case by Inspector Sunil Kumar (PW-
28).
This witness has tendered the following documents during his deposition:
a) Seizure memo of cloths of deceased i.e. shirt and trouser and sample seal : Ex. PW24/A
b) Site plan of the spot, prepared at the instance of Sh. Yashpal Saxena, father of deceased : Ex. PW24/B
c) Arrest memo and personal search memos of accused A-1 : Ex. PW24/C & : Ex. PW24/D
e) Disclosure statement of accused A-1 : Ex. PW24/E
f) Pointing out memo prepared at the instance of accused A-1 : Ex. PW24/F FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 27 of 121
g) Seizure memo of scooty bearing no. DL-4SBX-9445 : Ex. PW24/G
h) Arrest and personal search memos of accused A-2 : Ex. PW24/H & : Ex. PW24/I
j) Seizure memo of blood stained cloths of accused A-2 : Ex. PW24/J
k) Seizure memo of blood stained cloths of accused A-1 : Ex. PW24/K
l) Seizure memo of scooty bearing no. DL-4SBX-9626 : Ex. PW24/L
m) Seizure memo of scooty bearing no. DL-9SAY-6281 : Ex. PW24/M
n) Pointing out memo of the spot, prepared at the instance of accused A-2 : Ex. PW24/N
o) Disclosure statement of accused A-2 : Ex. PW24/O
p) Seizure memo of cloths of the deceased, blood in gauze piece along with sample seal of PM DDUH : Ex. PW24/P
q) Sketch of the knife, recovered at the instance of accused A-2 FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 28 of 121 : Ex. PW24/Q
r) Seizure memo of said knife : Ex. PW24/R
s) Unscaled site plan pertaining to the place of recovery of said knife : Ex. PW24/S Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
a) DD No. 42A : Ex. PW23/A
b) MLC of deceased
: Ex. PW7/A
c) MLC of mother of deceased
: Ex. PW7/B
d) Request to preserve the dead
body of deceased
: Ex. PW21/A
e) Statement of Sh. Yashpal Saxena,
father of deceased
: Ex. PW2/A
f) Rukka : Ex. PW9/A
g) Seizure memo of sealed parcels
: Ex. PW4/D
h) Seizure memo of blood stained
cloths of Sh. Yashpal Saxena, father of deceased : Ex. PW2/C
i) Seizure memo of Jacket, socks and shoes of deceased produced by FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 29 of 121 Sh. Yashpal Saxena : Ex. PW2/D
j) Arrest and personal search memos of accused A-3 : Ex. PW16/A & : Ex. PW16/B
l) Pointing out memo of the spot, prepared at the instance of A-3 : Ex. PW16/C
m) Disclosure statement of accused A-3 : Ex. PW16/D
n) Dead body identifications memos : Ex. PW5/A & : Ex. PW2/E
o) Dead body handing over memo : Ex. PW2/F
p) Seizure memo of blood stained cloths of mother of deceased : Ex. PW17/A This witness was duly cross examined at length by the learned defence counsel.
25 PW-25 Dr. Sarabjit He is the witness qua scientific Singh, Sr. Scientific evidence and deposed about the Officer (Biology), result of his scientific examination FSL, Rohini, Delhi. conducted upon the exhibits of the case properties received in FSL, Rohini.
This witness has tendered the following document during his FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 30 of 121 deposition:
a) His detailed report dated
17.10.2018
: Ex. PW25/A
b) Forwarding letter
: Ex. PW25/B
This witness was duly cross
examined by the learned defence
counsel.
26. PW-26 HC Rajesh He is the witness of investigation as Kumar various stages of investigation were carried out in his presence.
This witness has relied upon the following documents during his deposition:
a) Rukka : Ex. PW9/A
b) Seizure memo of blood gauze piece, blood stained tile and smaller tile with control earth : Ex. PW2/B
c) Rough site plan : Ex. PW24/B
d) Seizure memo of blood stained cloths of Sh. Yashpal Saxena, father of deceased : Ex. PW2/C
e) Seizure memo of jacket, shoes and socks of deceased : Ex. PW2/D
f) Arrest and personal search memos of accused A-1 FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 31 of 121 : Ex. PW24/C & : Ex. PW24/D
h) Disclosure statement of accused A-1 : Ex. PW24/E
i) Seizure memo of scooty bearing no. DL-4SBX-9455 : Ex. PW24/G
j) Arrest and personal search memos of accused A-2 : Ex. PW24/H & : Ex. PW24/I
l) Arrest and personal search memos of accused A-3 : Ex. PW16/A & : Ex. PW16/B
n) Seizure memo of blood stained cloths of accused A-2 : Ex. PW24/J
o) Seizure memo of blood stained cloths of accused A-1 : Ex. PW24/K
p) Seizure memo of scooty bearing no. DL-4SBX-9626 : Ex. PW24/L
q) Seizure memo of scooty bearing no. DL-9SAY-6281 : Ex. PW24/M
r) Pointing out memo of the spot, prepared at the instance of accused A-3 FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 32 of 121 : Ex. PW16/C
s) Disclosure statement of accused A-2 : Ex. PW24/O
t) Disclosure statement of accused A-3 : Ex. PW16/D u) Dead body identification statements : Ex. PW5/A & : Ex. PW2/E
v) Dead body handing over memo : Ex. PW2/F w) sketch of knife, recovered at the instance of accused A-2 : Ex. PW24/Q
x) Seizure memo of said knife : Ex. PW24/R y) Unscaled site plan pertaining to the recovery of place of knife : Ex. PW24/S This witness was duly cross examined at length by the learned defence counsel.
27. PW-27 Head He is the witness of the fact that Constable Krishan various case properties were Kumar deposited in this case with him being MHC(M).
This witness has tendered the following documents during his FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 33 of 121 deposition:
a) Copy of register no. 19 showing the entry no. 1737 qua deposition of one sealed pullanda containing cloths of deceased with sample seal : Ex. PW27/A (OSR)
b) Copy of register no. 19 showing the entry no. 1738 qua three deposition of three sealed pullandas containing blood gauze, blood stained tile and small broken tile : Ex. PW27/B (OSR)
c) Copy of register no. 19 showing the entry no. 1740 qua deposition of one sealed pullanda containing blood stained jacket, jeans and socks of the deceased : Ex. PW27/C (OSR)
d) Copy of register no. 19 showing the entry no. 1737 qua deposition of one sealed pullanda containing blood stained cloths of the complainant Sh. Yashpal Saxena : Ex. PW27/D (OSR)
e) Copy of register no. 19 showing the entry no. 1740 qua deposition of scooty bearing registration no. DL-
4SBX-9445 : Ex. PW27/E (OSR)
f) Copy of register no. 19 showing the entry no. 1740 qua deposition of one sealed pullanda containing blood stained cloths of accused A-1 : Ex. PW27/F (OSR)
g) Copy of register no. 19 showing the entry no. 1740 qua deposition of FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 34 of 121 scooty bearing registration no. DL-
4SBX-9626 : Ex. PW27/G (OSR)
h) Copy of register no. 19 showing the entry no. 1740 qua deposition of scooty bearing registration no. DL-
9SAV-6281 : Ex. PW27/H (OSR)
i) Copy of register no. 19 showing the entry no. 1740 qua deposition of one sealed pullanda containing blood stained cloths of accused A-2 : Ex. PW27/I (OSR)
j) Copy of register no. 19 showing the entry no. 1740 qua deposition of one sealed pullanda containing cloths of the deceased, blood in gauze piece with sample seal of PMDDUH : Ex. PW27/J (OSR)
k) Copy of register no. 19 showing the entry no. 1740 qua deposition of blood sample of accused A-1 with sample seal of GGSGH : Ex. PW27/K (OSR)
l) Copy of register no. 19 showing the entry no. 1740 qua deposition of blood sample of accused A-2 with sample seal of GGSGH : Ex. PW27/L (OSR)
m) Copy of register no. 19 showing the entry no. 1740 qua deposition of sealed parcels containing articles recovered from the accused A-1, A-
2 & A-3 respectively : Ex. PW27/M (OSR) FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 35 of 121
n) Copy of register no. 19 showing the entry no. 1741 qua deposition of blood stained knife : Ex. PW27/N (OSR)
o) Copy of register no. 19 showing the entry no. 1741 qua deposition of a sealed parcel containing blood stained cloths of Kamlesh Saxena (mother of deceased) : Ex. PW27/O (OSR)
p) Copy of register no. 21 showing the entry no. 27 qua handing over knife to the Investigating Officer vide RC No. 27/21/18 : Ex. PW27/P (OSR)
q) Copy of register no. 19 showing the entry no. 1740 qua re-deposition of knife by the Investigating Officer after opinion : Ex. PW27/Q (OSR)
r) Copy of register no. 19 showing the entry no. 1740 qua receipt of all the exhibits from the FSL : Ex. PW27/R (OSR) Apart from tendering the aforesaid documents, this witness has also relied upon the following documents:
a) Acknowledgment qua deposition of exhibits with FSL : Ex. PW21/B (OSR)
b) Copy RC No. 43/21/18 qua handing over 14 sealed exhibits and 06 sample seals to Ct. Roop Singh FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 36 of 121 vide : Ex. PW21/C (OSR) This witness was not cross examined by the learned defence counsels despite being given opportunity for the same.
28 PW-28 Inspector He is the main Investigating Officer Sunil Kumar and conducted various stages of investigation.
This witness has tendered the following documents during his deposition:
a) Inquest papers : Ex. PW28/A
b) Copy of application moved by him for recording of the statement of PW Anmol Singh under Section 164 Cr. P.C : Ex. PW28/B Apart from tendering the aforesaid documents, this witness also relied upon the following documents:
a) DD No. 41A : Ex. PW19/B
b) DD No. 42A : Ex. PW23/A
c) Seizure memo of shirt and trouser of deceased : Ex. PW24/A
d) DD No. 44A : Ex. PW23/B FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 37 of 121
e) MLC of Smt. Kamlesh Saxena : Ex. PW7/B
f) Report of Crime Team : Ex. PW10/A
g) Photographs : Ex. PW10/B
h) CD containing photographs : Ex. PW11/A
i) Statement of Sh. Yashpal Saxena, father of deceased : Ex. PW2/A
j) Rukka : Ex. PW19/A
k) FIR : Ex. PW23/C
l) Seizure memo of blood gauze, blood stained tile, blood earth control : Ex. PW2/B
m) Site plan prepared at the instance of Yashpal Singh : Ex. PW24/B
n) Seizure memo of blood contained cloths of deceased father : Ex. PW2/C
o) Seizure memo of jacket, shoes and shocks of the deceased : Ex. PW2/D
p) Arrest and personal search memos of accused A-1 : Ex. PW24/C FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 38 of 121 & : Ex. PW24/D
q) Disclosure statement of accused A-1 : Ex. PW24/E
r) Pointing out memo, prepared at the instance of accused A-1 : Ex. PW24/F
s) Arrest and personal search memos of accused A-2 : Ex. PW24/H & : Ex. PW24/I
t) Arrest and personal search memos of accused A-3 : Ex. PW16/A & : Ex. PW16/B u) Disclosure statement of A-2 : Ex. PW24/O
v) Disclosure statement of accused A-3 : Ex. PW16/D w) Seizure memo of blood stained cloths of accused A-2 : Ex. PW24/J
x) Seizure memo of blood stained cloths of accused A-1 : Ex. PW24/K y) Seizure memo of scooty bearing no. DL-4SBX-9626 : Ex. PW24/L z) Seizure memo of scooty bearing FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 39 of 121 no. DL-9SAY-6281 : Ex. PW24/M aa) Pointing out memo of the spot prepared at the instance of the accused A-2 : Ex. PW24/N ab) Pointing out memo of the spot prepared at the instance of the accused A-3 : Ex. PW16/C ac) Dead body identification memo : Ex. PW2/E ad) Dead body handing over memo : Ex. PW2/F ae) PM Report : Ex. PW14/A af) Seizure memo of sample seal, clothes of the deceased, blood gauze piece : Ex. PW24/P ag) Seizure memo of blood sample of accused A-1 : Ex. PW20/A ah) Seizure memo of blood sample of accused A-2 : Ex. PW3/A ai) Sketch of knife : Ex. PW24/Q aj) Seizure memo of said knife : Ex. PW24/R ak) Site plan of place of recovery of said knife FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 40 of 121 : Ex. PW24/S al) Seizure memo of blood stained cloths of Smt. Kamlesh Saxena : Ex. PW17/A am) Subsequent opinion : Ex. PW14/B an) Sketch of knife prepared by doctor : Ex. PW14/C ao) CAFs, CDRs and Location Chart pertaining to Airtel : Ex. PW8/A to : Ex. PW8/G ap) CAFs, CDRs and Location Chart pertaining to Jio : Ex. PW12/A to : Ex. PW12/E aq) CAFs, CDRs and Location Chart pertaining to Vodaphone : Ex. PW18/A to : Ex. PW18/F ar) Statement under Section 164 Cr.
P.C of PW-22 Anmol Singh : Ex. AD1 as) Statement under Section 164 Cr.
P.C of PW-13 Nitin : Ex. AD2/CW13A at) Site plan prepared by draftsman : Ex. PW1/A au) Acknowledgment by FSL FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 41 of 121 : Ex. PW21/B av) RC : Ex. PW21/C aw) FSL Result : Ex. PW25/A This witness was duly cross examined at length by the learned defence counsel.
6.1. Thereafter, on 15.07.2022 upon the request of learned Special Public Prosecutors for the State, the prosecution evidence was closed on 15.07.2022 and the matter was notified for recording of the statements under Section 313 Cr. P.C of all the accused persons.
STATEMENTS OF ACCUSED PERSONS UNDER SECTION 313 Cr. P.C
7. On 20.08.2022, the statements of all the accused persons under Section 313 Cr. P.C were recorded separately wherein, all the accused persons stated that they are willing to lead evidences in their defence. Thereafter the matter was notified for recording of defence evidence and deposition of six (06) defence witnesses were recorded.
DEFENCE EVIDENCE
8. All the three accused persons have examined the following six (06) witnesses in their defence. Sr. Name of witnesses Crux of testimony No. FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 42 of 121
1. DW-1 Smt. Shahjaha She is real sister of accused A-3.
She is claimed to be present on the spot when deceased Ankit Saxena was being taken in an auto rickshaw.
This witness was duly cross examined at length by the learned Special Public prosecutors for the State.
2. DW-2 Ms. Rubina She is real niece of accused A-1, who is her real mama. Accused A-
2 is her mausa. She reached on the spot after the incident and saw that deceased Ankit Saxena was lying on the road and was bleeding at the spot. She also saw accused A-1, A-
2, JCL 'A' and Shehzadi on the spot.
PW Anmol was also found present by her at the spot.
This witness was also duly cross examined at length by the learned Special Public Prosecutors for the State.
3. DW-3 Ms. Shehzadi She is real daughter of accused A-
Khatoon 2 & A-3 and niece of accused A-1.
She appeared as defence witness on behalf of accused A-1. She claimed herself to be present on the spot at the time of incident. She has seen the oozing of blood from the neck of deceased Ankit Saxena.
This witness was also duly cross examined at length by the learned Special Public Prosecutors for the State.
4. DW-4 Mr. 'A' (JCL) He is the real son of accused A-2 FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 43 of 121 & A-3. He is the JCL "A" and was apprehended in relation to the murder of deceased Ankit Saxena.
The proceedings against him are still pending before the learned JJB, Kingsway Camp, Delhi. He appeared as defence witness on behalf of accused A-2 & A-3. He claimed himself to be present on the spot.
This witness was also cross examined at length by the learned Special Public Prosecutors for the State.
5. DW-5 Ms. Madhu, She produced the summoned record Welfare Officer, Nari pertaining to the stay of Shehzadi in Niketan, Nirmal Nari Niketan.
Chhaya Complex, Jail Road, Hari Nagar, Delhi. This witness has tendered the following documents during her deposition:
a) Copy of application dated 03.02.2018 moved by SI Manish Dhillon regarding admission of Shehzadi in the Nari Niketan : Ex. DW5/A (OSR)
b) Copy of application dated 08.02.2018 moved by HC Parmilla for handing over custody of Shehzadi to her mausi Shahjahan W/o Abdul Hakim : Ex. DW5/B (OSR) This witness was also duly cross examined at length by the learned Special Public Prosecutors for the State.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 44 of 121
6. DW-6 W/HC Suman She produced the summoned record pertaining to the present case for the dates between 01.02.2018 to 01.03.2018 : Ex. DW6/A (OSR) (Colly, 8 pages) This witness was not cross examined by the learned Special Public Prosecutors despite being given opportunity for the same.
8.1. On the submissions of learned counsel for all the accused persons, the defence evidence was closed and matter was notified for final arguments.
APPRECIATION AND EVALUATION OF EVIDENCE, ANALYSIS OF CONTENTIONS AND FINDINGS :
9. I have heard Ms. Rebecca M. John, learned Sr. Advocate, Mr. Vishal Gosain, learned Special Public Prosecutors for the State as well as Sh. Amjad Khan, learned counsel for all the three accused persons and have also gone through the entire record of the case. I have also considered the evidence adduced by both the sides with case laws relied upon by them as well as the arguments advanced by both the sides.
ARGUMENTS ON BEHALF OF THE STATE
10. Learned Special Public Prosecutors have argued that the prosecution has proved its case beyond reasonable doubt against all the three accused persons.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 45 of 121 10.1. It is also argued that the entire prosecution's case is based upon the testimonies of eye witnesses as the incident of murder of the deceased Ankit Saxena was witnessed by PW-2 Sh. Yashpal Saxena (father of deceased), PW-13 Sh. Nitin (friend of deceased), PW-17 Smt. Kamlesh Saxena (mother of deceased) and PW-22 Sh. Anmol Singh (friend of deceased). All these witnesses along with PW-6 have been examined by the prosecution and their testimonies remained unshaken.
10.2. It is also argued that the ocular testimony of eye witnesses is credible and is corroborated by the relied documents, material objects as well as with the deposition of other witnesses.
10.3. It is further argued that the deposition of eye witnesses is also corroborated from the medical and forensic evidences.
10.4. It is further argued that there is nothing in the cross examination of eye witnesses viz. PW-2, PW-13, PW-17 and PW- 22 or the other prosecution witnesses which could be said to be sufficient to create a doubt in the prosecution story. All these eye witnesses have given a true and reliable account how the offence was committed in this case and there is nothing to disbelieve their unflinching and cogent testimony on the issue.
10.5. It is further argued that the evidence of the prosecution witness are so meticulously flawless that it points to only one conclusion that the prosecution has proved its case beyond reasonable doubts. The testimony of all the eye witnesses FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 46 of 121 i.e. PW-2, PW-13, PW-17 and PW-22 are throughout consistent. Learned Special Public Prosecutors for the State has read the evidences and important documents and displayed the exhibiting of material objects to connect all the three accused persons with the alleged crime.
10.6. It is further argued that the prosecution has proved its case beyond reasonable doubts by examining aforesaid eye witnesses and other material witnesses and the deposition of these witnesses is duly corroborated with medical and forensic evidences. All of these eye witnesses have identified all the three accused persons i.e. accused A-1, accused A-2 & accused A-3 being the real murderers of deceased Ankit Saxena. The postmortem report has clearly established that the deceased was murdered. Forensic report has established that the weapon i.e. knife recovered at the instance of accused A-2 was actually used for silting the throat of the deceased leading to his death. Prosecution has successfully proved the motive of the accused persons for committing the crime thereby has proved its case against all the accused persons.
10.7. It is further argued that the cross examination of all the aforesaid star/material prosecution witnesses as well as remaining prosecution witnesses does not reveal anything favourable to the accused persons. It is also argued that there is nothing in the cross-examination of the aforesaid eye witnesses and other material prosecution witnesses which could be said to be sufficient to create a doubt in the story of the prosecution.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 47 of 121 10.8. It is also submitted that the defence witnesses are wholly unreliable, unbelievable due to their self contradictory deposition. The examined defence witnesses are the family members of the accused persons. One of them, DW-4 is himself a JCL and is facing the proceedings before the learned JJB, Kingsway Camp, Delhi for killing the deceased Ankit Saxena. The deposition of defence witnesses is contradictory to the defence taken by the accused persons during the cross examination of the prosecution witnesses and the defence taken by the accused persons in their statements recorded under Section 313 Cr. P.C. DW-1 & DW-2 reached the spot after silting of throat of deceased Ankit Saxena, therefore, they have not witnessed the incident of murder of the deceased by the accused persons. Deposition of DW-3 Shehzadi is contradicted by the deposition of PW-2, PW-4, PW-17 and PW-22 as well as medical and documentary evidences, produced by the prosecution. The same is also contradictory to the defence taken by all the accused persons during the trial of the present case.
10.9. It is further argued that the case has been proved beyond reasonable doubts and all the three accused persons deserve to be convicted for the charged offences.
10.10. In support of her aforesaid submissions, learned Special Public Prosecutors have also placed reliance upon the following judicial pronouncements:
a) Vishal Yadav Vs. State of U.P, Vikas Yadav Vs. State of U.P. & Sukhdev Yadav Vs. State of U.P., Crl. A. 741/2008, 910/2008 & 145/2012, FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 48 of 121 decided by the Hon'ble Delhi High Court on 02.04.2014;
b) Shrishail Nageshi Pare V. State of Maharashtra (1985) 2 SCC 341;
c) State of Uttar Pradesh V. Noorje
(1196) 9 SCC 295;
d) State of Uttar Pradesh V. Atul Singh
(2009) 14 SCC 203;
e) Gulab Vs. State of Uttar Pradesh,
2021 SCC Online SC 1211;
f) Bhagirath V. State of Madhya
Pradesh (2019) 17 SCC 581;
g) Virendra V. State of UP (2008) 16
SCC 582;
h) State of U.P. V. Hari Chand (2009)
13 SCC 542;
i) Sudhakaran V. State of Kerala
(2010) 10 SCC 582;
j) Kara Bhai V. State of Gujarat (2018)
18 SCC 690;
k) Daya Ram V. State of Haryana
(2015) 12 SCC 373;
l) Hemraj V. State, 2022 SCC Online
Del 2478;
m) Rajkishore Purohit V. State of
Madhya Pradesh (2017) 9 SCC 483;
n) Ramaswami Ayyangar V. State of
Tamil Nadu (1976) 3 SCC 779;
FIR No. 23-2018, PS Khyala
SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 49 of 121
o) Thoti Manohar V. State of Andhra
Pradesh (2012) 7 SCC 723;
p) Jaswant Singh V. State of Haryana
(2000) 4 SCC 484;
q) Gyan Chand V. State of Haryana
(2013) 14 SCC 420; &
r) Balu Sudam Khaldev V. State of
Maharashtra (2023) SCC Online SC
355.
ARGUMENTS ON BEHALF OF ALL
THE ACCUSED PERSONS
11. Per contra, learned defence counsel has focused on the issue relating to the contradictions in the testimonies of eye witnesses viz. PW-2, PW-13, PW-17 and PW-22 and other material prosecution witnesses, incongruities in the oral evidence and medical report, MLC of the deceased, the witnesses being interested and partisan, no independent witness of the incident and no proper investigation in this case.
11.1. It is argued that there are various contradictions and flaws in the prosecution case and same raise serious doubts in prosecution story and show that prosecution has failed to prove its case beyond reasonable doubts against all the accused persons and benefit of the same must be given to all the accused persons.
11.2. It is also argued that the prosecution witnesses have deposed falsely against all the accused persons being the relatives/family members of the deceased. The prosecution is claiming that PW-2 & PW-17 (father and mother of deceased respectively) are the eye witness of the entire incident, however, FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 50 of 121 these witnesses made false statements as they were tutored by the Investigating Officer for making the false statement against all the accused persons. Their deposition is full with contradictions therefore, liable to be rejected.
11.3. It is also argued that the prosecution has failed to prove the necessary stages and elements i.e. intention, preparation, attempts and commission of the offence by all the accused persons. The testimony of prosecution witnesses is ambiguous, incoherent and cannot be said to be credible and credit-worthy.
11.4. It is further argued that the prosecution could not establish the motive of all the accused persons for committing the alleged offence because existence of any relationship between deceased Ankit Saxena and DW-3 Shehzadi remains unestablished. No ocular evidence was produced and the testimony of examined witnesses is tutored and full with improvements an contradictions.
11.5. It is also argued that the case properties have been tampered by the Investigating Officer before its examination by the FSL Expert.
11.6. It is further argued that the defence of all the accused persons cannot be said to the contradictory because the same defence was taken by them from the initiation of the trial in this case. Non examination of Shehzadi as prosecution witness is sufficient to draw the adverse inference against the prosecution FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 51 of 121 case. It is therefore, prayed that all the accused persons may kindly be acquitted in this case.
11.7. In support of his aforesaid submissions/arguments, learned defence counsel has also placed reliance upon the following judicial pronouncements:
a) Rampal Singh Vs. State of UP, Crl.
Appeal No. 2114/2009;
b) Sunil Vs. State of NCT of Delhi, Ravinder Vs. State of NCT of Delhi and Shri Krishan Vs. State of NCT of Delhi, Crl. Appeal Nos.
688/2011, 689/2011 & 785/2011;
c) Raju Vs. State of Madhya Pradesh, Crl. Appeal No. 818/2014, decided on 18.04.2023 by Hon'ble High Court of Madhya Pradesh At Gwalior;
d) Ankush Shivaji Gaikwad Vs. State of Mahrashtra, SLP (Crl.) No. 6287/2011;
e) Jainul Haque Vs. State of Bihar AIR No. 1974 SC 45, 1974 Crl. J. 143 (1974) 3 SCC 543, 1974 (6) UJ 26 SC;
f) Kalyan Singh Vs. State of Madhya Pradesh through Secretary (Home), Crl. Appeal No. 819/2006;
g) Ajmal Vs. The State of Kerala, Crl.
Appeal Nos. 1838, 1839 and 1840 of 2019;
h) Reena Hazarika Vs. State of Assam, Crl. Appeal No. 1330 of 2018 FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 52 of 121 (arising out of SLP (Crl.) No. 2440/2018);
i) Maheshwar Tigga Vs. State of Jharkhand, Crl. Appeal No. 635 of 2020 (arising out of SLP (Crl.) No. 393/2020);
j) Premchand Vs. The State of Maharashtra, Crl. Appeal No. 211/2023; &
k) Prakash Nishad @ Kewat Zinak Nishad Vs. State of Maharashtra, Crl. Appeal Nos. 1636-1637 of 2023 (arising out of SLP (Crl.) Nos.
11009-11010/2015).
APPRECIATION OF LAW & EVIDENCE
12. Before embarking on the long journey of examination and adjudication on the material on record, lengthy oral arguments of both sides, law on the issue as well as the evidences brought on record, I must mention here the law relating to the appreciation and evaluation of evidences of the witnesses.
EVALUATION OF EVIDENCE-PROOF BEYOND REASONABLE DOUBT:
13. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 53 of 121 13.1. It is also well settled that while in criminal cases, the doctrine of presumption of innocence casts the burden on the prosecution to prove its case against the accused persons beyond reasonable doubt, it is trite that doubt to the guilt of the accused should be substantial and not flimsy or fanciful. Such doubt need not reach certainty, but it must carry high degree of probability. In (1988) 4 SCC 302, State of U.P. v. Krishna Gopal wherein the Court had observed as follows:
"25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another learned Author says ["The Mathematics of Proof-II": Glanvile Williams: Criminal Law Review, 1979, by Sweet and Maxwell, P. 340 (342)]":
"the simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 54 of 121 make confessions, and guilty rather than innocent people who ran away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilty of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective elements in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge.
While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice".
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 55 of 121 13.2. While examining the degree of proof in criminal cases, in (1947) 2 ALL E.R. 372, Miller v. Ministers of Pensions it was stated-
"that degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fall to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence "of course, it is possible but not in the least probable", the case is proved beyond reasonable doubt..." All that the principle enjoins is a reasonable skepticism, not an obdurate persistence in disbelief. It does not demand from the judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth.
13.3. In (1990) 1 SCC 445, Gurbachan Singh v. Satpal Singh, the Supreme Court quoted observations of Lord Denning in Bater v. Bater in (1950) 2 All. E.R. 458 that the standard adopted by the prudent man would vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions or thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 56 of 121 13.4. When would it be held that prosecution had failed to establish its case beyond reasonable doubts entitling accused to benefit of doubt?
In (1990) 3 SCC 190, Vijayee Singh v. State of U.P., the court quoted Lord Du Paraq, J. on the concept of the benefit of reasonable doubt from his observations in Miller v. Minister of Pensions [(1947) 2 All ER 372, 373 H] that:
"All that the principle enjoins is a reasonable scepticism, not an obdurate persistence in disbelief. It does not demand from the judge a resolute and impenetrable incredulity. He is never required to close his mind to the truth".
13.5. The expressions "proof beyond reasonable doubt"
and entitlement of an accused person to "benefit of doubt" are regularly used by us. But what are their contours? A very valuable discussion on this issue is to be found in the judgment authored by O. Chinnappa Reddy, J. in (1979) 1 SCC 355 K. Gopal Reddy v. State of AP wherein reiterating the fundamental principle of criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt, the court placing reliance on the afore noticed enunciation by Lord Denning in Miller (Supra), elaborated the principles thus:
"9. ...To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 57 of 121 view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons (Salmon, J. in his charge to the jury in R. v. Fantle reported in1959 Criminal Law Review 584).
...In Khem Karan v. State of U.P. [(1974) 4 SCC 603 : 1974 SCC (Cri) 689 : AIR 1974SC 1567] this Court observed: "Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony".
13.6. The Supreme Court has stated that the efforts by the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused. [(1999) 3 SCC 507, State of Rajasthan v. Teja Ram] 13.7. The caution articulated by the Supreme Court in (2002) 5 SCC 234, Devender Pal Singh v. State of NCT of Delhi also emphasises that perfection in a case may not be natural when it stated thus:
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 58 of 121 "53. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singhv. Satpal Singh [(1990) 1 SCC 445 : 1990 SCC (Cri) 151 : AIR 1990 SC 209].
Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86 :
1992 SCC (Crl) 241 :AIR 1992 SC 840]
54. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State(Delhi Admn.) [(1978) 4 SCC 161 : 1978 SCC (Cri) 564 : AIR 1978 SC 1091]. Vague hunches cannot take the place of judicial evaluation.
"A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. ... Both are public duties...." (Per Viscount Simon in Stirland v. Director of Public Prosecution[1944 AC 315 : (1944) 2 All ER 13 : 113 LJKB 394] quoted in State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Crl) 48 : AIR 1988 SC FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 59 of 121 1998] , SCC p. 692,para 17.) (emphasis supplied).
13.8. In (1978) 4 SCC 161, Inder Singh & Anr. v. State (Delhi Administration) V.R. Krishna Iyer, J. wrote that:
―credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny...Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up? Because the court asks for manufacture to make truth look? No, we must be realistic".
13.9. It is trite that accused persons are entitled to get benefit of doubt only when the prosecution fails to prove its case, therefore, the proof beyond reasonable doubt is a guiding factor and not an absolute rule.
13.10. Keeping in mind aforesaid tenet, I am proceeding further and appreciating the evidence, brought on record by prosecution in the light of the testimonies of the prosecution and defence witnesses.
LEGAL PROVISIONS
14. Accused persons viz. Accused A-1 & accused A-2 have been charged in this case for the offences punishable under Section 302/34 IPC whereas, accused A-3 has been charged for offences punishable under Section 302/323 IPC read with FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 60 of 121 Section 34 IPC because all of them in furtherance of their common intention are alleged to have committed murder of deceased Ankit Saxena by silting his throat with a knife. Accused A-3 is also charged for offence punishable under Section 323 IPC for causing injuries to deceased mother Smt. Kamlesh Saxena (PW-17) when she was attempting to protect her son from her.
14.1. Offence of murder is punishable under Section 302 IPC. Offence of murder is defined under section 300 IPC which is as under:
Section 300 IPC states that except in the cases hereinafter excepted, culpable homicide is murder, if the act by which death is caused is done with the intention of causing death, or-
Secondly-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 61 of 121 14.2. The offence will be covered under clause (1) of Section 300 IPC if the act by which death is caused, is done with the intention to cause the death of a person. Whether the death was actuated by the intention to cause death is a subjective element and has to be deduced from the objective facts, circumstances and behavior of the accused.
14.3. In this clause, all those cases are covered where the direct intention of the accused is to cause the death of a person. Inference of such intention can be drawn from the manner in which the death is caused, weapon used, the nature of injury given, the seat of the injury on the human body, the motive and any other relevant circumstances connected with the death of a person. For bringing its case within the ambit of clause (1) of Section 300 IPC, prosecution is required to give strong evidence of a definite, explicit, unambiguous and precise intention of the accused to kill the victim.
14.4. The accused A-3 is also charged for the offene punishable under Section 323 IPC as accused A-3 is alleged to have caused injuries to PW-17 when she was trying to protect her son from the clutches of the accused persons.
14.5. The offence of causing hurt is punishable under Section 323 IPC whereas, Section 319 IPC contains its definition.
According to it, whoever causes bodily pain, disease or infirmities to any person, is said to cause hurt. Therefore, the sine qua non for proving the offence of hurt is causing bodily pain, diseases or infirmities to victim by the accused.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 62 of 121 14.6. All the accused persons have also been charged under Section 34 IPC for their acts done in furtherance of their common intention. Section 34 IPC provides liability of one accused for the acts of other accused persons. The sine qua non for the same is prior concert and prior meeting of mind between the participants of a criminal act. However, this intention can be developed at a spur of movement.
14.7. Therefore, the prosecution is under an obligation to prove prior meeting of mind and prior concert between all the accused persons for committing the alleged offences. The burden lies on the prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of their common intention at a prior concert. Reliance is placed upon Mirnal Dass Vs. State of Tripura, AIR 2011 SC 3753. In Rajkishore Purohit Vs. State of Madhya Pradesh (supra), it was held that common intention is a state of mind, there cannot be any direct evidence for the same and it has be inferred from the conduct of accused persons.
APPRECIATION OF EVIDENCE
15. Now to summarize the case of the prosecution, SI Anand Prakash (PW-24) on 01.02.2018 on receipt of DD No. 41A, reached at RGA Block, Road No. 29 Footpath Opposite Blind University, Raghubir Nagar, Delhi and found scattering of blood in large quantity infront of shop of Chatwal Auto Works. PW-22 Sh. Anmol Singh and PW-13 Sh. Nitin met him and informed that their friend injured Ankit Saxena had been taken to FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 63 of 121 the hospital by his parents. In the meantime, he received another DD No. 42A from GGS Hospital. He went to the said hospital and collected MLC No. 56215/18 of deceased Ankit Saxena wherein, the concerned doctor has mentioned 'brought dead'. Smt. Kamlesh Saxena (PW-17) was also found admitted in the said hospital. PW-2 Sh. Yashpal Saxena informed Inspector Sunil Kumar/Investigating Officer (PW-28) about the killing of his son Ankit Saxena in his presence by the accused persons viz. Accused A-1, accused A-2 and accused A-3 and JCL "A".
15.1. It is pertinent to mention that the JCL "A" is not facing any proceeding/trial before this Court and his matter is stated to be pending before learned JJB, Kingsway Camp, Delhi, therefore, this Court will not make any attempt to appreciate any evidence or to give any finding qua said JCL 'A' during process of appreciating evidences against accused persons viz. accused A-1, accused A-2 and accused A-3 and recording findings regarding them in this judgment.
15.2. The incident of committing murder of the deceased Ankit Saxena is claimed to be witnessed by his father Sh. Yashpal Saxena (PW-2), his mother Smt. Kamlesh Saxena (PW-
17), his friend Sh. Anmol Singh (PW-22), who were present on the spot and made attempts to protect the deceased from all the accused persons. The part of the incident is also claimed to be witnessed by Sh. Nitin (PW-13).
15.3. Therefore, the prosecution case against all the accused persons primarily hinges upon the testimony of the FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 64 of 121 aforesaid eye witnesses PW-2 Sh. Yashpal Saxena, PW-17 Smt. Kamlesh Saxena and PW-22 Sh. Anmol Singh and also upon the testimony of PW-13 Sh. Nitin.
FINDINGS QUA CAUSE OF DEATH:
MEDICAL EVIDENCE
16. The first and foremost question is to find out the cause of death of deceased Ankit Saxena.
16.1. Admittedly, SI Anand Prakash (PW-24) visited GGS Hospital on receipt of DD No. 42A dated 01.02.2018 and collected the MLC of deceased Ankit Saxena bearing no. 56215/18 wherein, the concerned doctor has mentioned that the deceased was 'brought dead' in the said hospital. Therefore, the death of the deceased Ankit Saxena is undisputed.
16.2. Now, the question is as to what was the cause of death of the deceased Ankit Saxena.
16.3. It is claimed by the prosecution that the deceased Ankit Saxena was killed by all the accused persons viz. accused A-1, accused A-2 & accused A-3 in furtherance of their common intention by silting his throat with a knife. It is alleged that accused A-1 caught hold the right hand of deceased Ankit Saxena whereas, JCL 'A' caught hold the left hand of deceased and accused A-2 caught hold of deceased hairs and upon the exhortation of accused A-3 and in furtherance of their common intention, accused A-2 silted the throat of the deceased with a knife.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 65 of 121 16.4. In support of its case qua the murder of the deceased in the aforesaid manner by the accused persons, the prosecution has examined PW-14 Dr. Neeraj Kumar Garg, who conducted postmortem over the dead body of the deceased. PW-14 has proved the postmortem report Ex. PW14/A, subsequent opinion qua weapon of offence Ex. PW14/B, rough sketch diagram of knife Ex. PW14/C. He has also identified the knife/weapon of offence as Ex. MO-10 produced before him for the subsequent opinion in a sealed pullanda Ex. PW14/D. PW-14 in postmortem report Ex. PW14/A has found injury only on the neck of the deceased Ankit Saxena. The external examination of deceased body revealed as under:
(i) incised wound of size of 9.5 cm X 4 cm X 2 cm was present horizontally on the front of the neck 8 cm below the chin and 6 cm above the sternal notch,
(ii) edges of the wound were sharp and cleanly cut.
(iii) Tailing was present on the right side of the wound. On dissection, the skin subcutaneous tissues, neck muscle trachia, cricoid, cartilage, larynx, oesophegaus and neck wastles were found injured. Abussion of blood was present in an around wound side.
16.5. According to PW-14, time since death was approximately 18 hours prior to the postmortem which was started at 12.45 PM on 02.02.2018 and was concluded at 01.45 PM. This witness has testified the cause of death as hemorrhagic shock via injury no. 1. The said injury was ante mortem in nature and fresh in duration. Injury no. 1 was caused by sharp edge weapon. Injury no. 1 was individually sufficient to cause death in FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 66 of 121 ordinary course of nature. According to him, the manner of death was homicidal.
16.6. This witness has also given subsequent opinion (Ex. PW14/B) qua the weapon of offence i.e. knife (Ex. MO-10) to the effect that Ex. MO-10 produced before him was capable of causing injury no. 1. He also noticed blood like stains on the surface of the blade of Ex. MO-10. Rough sketch diagram (Ex.PW14/C) was also prepared by him.
16.7. The testimony of PW-14 shows that the incised wound was found present on the front of neck below the chin and above sternal notch of the deceased. The edges of wound were sharp and cleanly cut. Tailing was found present on the right side of the wound. The death of the deceased caused due to injury no. 1 as the same was found to be sufficient in the ordinary course of nature to cause his death. Therefore, the death was caused by some sharp edge weapon and the same is the result of hemorrhagic shock via injury no. 1. Manner of the death was found to be homicidal. Hence, the prosecution has proved that the death of the deceased was caused by a sharp edge weapon and the manner of the death was homicidal.
WHO CAUSED DEATH
17. Now the next most vital question is who caused the death of deceased Ankit Saxena.
17.1. It is alleged that the same was caused by the accused persons viz. accused A-1, A-2 & A-3 and JCL 'A'. The same is witnessed by PW-22 Mr. Anmol, Sh. Yashpal Saxena (PW-2) and FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 67 of 121 Smt. Kamlesh Saxena (PW-17), who were present on the spot and were trying to save the deceased from the accused persons. Accused A-3 had also beaten PW-17. The accused persons viz. Accused A-1, accused A-2 and JCL 'A' upon the exhortation of accused A-3, in furtherance of their common intention, accused A-2 silted the throat of the deceased. Therefore, the vital question is firstly to find out as to whether PW-22, PW-2, PW-17 and accused persons viz. Accused A-1, accused A-2 & accused A-3 were present at the spot and secondly whether these prosecution witnesses had seen the incident of committing the murder of the deceased by the aforesaid accused persons.
17.2. To prove the same, the prosecution has examined PW-22, PW-2, PW-17 and PW-13 Mr. Nitin. PW-2/complainant is the father of the deceased, PW-17 is the mother of the deceased whereas, PW-13 and PW-22 are the friends of the deceased. The incident of silting the throat of the deceased Ankit Saxena is claimed to be witnessed by PW-22, PW-2 and PW-17. Therefore, they are the eyewitnesses of the incident.
The prosecution has claimed that PW-22, PW-2 and PW-17 are the eyewitnesses of the alleged accident. Therefore, all of them are the star prosecution witnesses and linchpin of the Prosecution case.
EYE WITNESSES 17.3. A witness that saw the happening of the accident being inquired by the court is an eyewitness. Reliable evidence of eyewitnesses cannot be disregarded in the absence of strong FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 68 of 121 reasons. Conviction can be based upon the testimony of sole eyewitness if the same is found wholly reliable. However, if the testimony is not found to be wholly reliable, the court may insist upon some independent corroboration.
17.4. Eyewitnesses play an important role in the criminal justice system. The quality of evidence of an eyewitness depends on many factors prominent among them are his view in which the crime is committed, his confidence with respect to the accuracy of the description of the crime and identification of the accused and his description, the amount of attention the witness paid to the crime during its occurrence, the probability of the witness being present at the place of accident, the accuracy and probability of what he is defining etc. 17.5. The law relating to the appreciation of evidence of eyewitnesses is completely settled that generally the testimony of eyewitness of the accident is considered credible unless and until it is specifically shown or proved to have a taint for any reason on which it is assailed. Generally, the courts tend to believe what the eyewitnesses depose in the court and it is only when there exists grave and material discrepancies and contradictions in their statements which compels the court to think and doubt that whether the eyewitness is giving a truthful account, it can come in the domain of suspicion. When the tenacity and doggedness of the eyewitness is suspicious, when the truthfulness of the testimony of the eyewitness is shrouded in grave clouds of suspicion and falsity, the court may disbelieve FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 69 of 121 that witness or may look for such corroboration of his evidence which are capable of removing the blemish from his evidence.
17.6. However, the contradictions and omissions are not material to the facts of the case, can be overlooked. Way back in 1957, in Vadivelu Thevar v. The State of Madras, A.I.R. (1957) S.C. 614, Hon'ble Supreme Court has categorised the witnesses in three categories. It was held that as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
17.7. Hon'ble Delhi High Court in the case titled as Satish Bombaiya v. State, 1991 JCC 6147 had observed :
"While appreciating the evidence of witness, approach must be whether the evidence of the witness read as a whole appears to have ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 70 of 121 whether earlier evaluation of evidence is shaken as to render it unworthy. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases".
17.8. So, in the wake of above mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as whole. Minor discrepancies over trivial matters and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded. Reliance is placed upon State v. Saravanan, AIR 2009 SC 152, State of U.P. v. Krishna Master, AIR 2010 SC 3071, Narayan Chetanram Chaudhary & Anr. vs. State of Maharashtra reported in AIR 2000 SC 3352 and Rammi alias Rameshwar v. State of Madhya Pradesh AIR 1999 SC 256.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 71 of 121 INTERESTED WITNESSES 17.9. The material prosecution witnesses viz. PW-2 and PW-17 are the family members of the deceased whereas, PW-22 and PW-13 are his friends.
17.10. The law relating to the evidence of the family members and close relatives of the deceased/victim is propounded by the Hon'ble Apex Court in Darya Singh and others vs State of Punjab (supra). Hon'ble Supreme Court upheld the conviction of the appellant in a murder case based on the testimony of eye witnesses who were near relatives and observed that there can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, it was held that the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence.
17.11. Where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal court to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. If FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 72 of 121 the criminal Court is satisfied that the witness who is related to the victim was not a chance-witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised. In doing so, it may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of enemy of the family out of malice. 17.12. The desire to punish victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. 17.13. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars. 17.14. It is a settled principle of criminal law jurisprudence that more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused. Though it is neither possible nor prudent to have a straight-jacket formula or principle which would apply to all cases without variance and every case has to be appreciated on its own facts and in light of the evidence led by the parties.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 73 of 121 17.15. It is for the court to examine the cumulative effect of the evidence in order to determine whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt. 17.16. Applying the witness credibility test laid down in the aforesaid case laws by the Hon'ble Apex Court, it is revealed that the case of the prosecution is based primarily on the evidence of eyewitnesses i.e. PW-22 Mr. Anmol Singh, PW-2 Sh. Yashpal Saxena and PW-17 Smt. Kamlesh Saxena and also upon the testimony of PW-13 Mr. Nitin (witness of the initial quarrel between the accused persons and the deceased). PW-2 & PW-17 are father and mother of the deceased Ankit Saxena and are stated to be present on the spot at the time of the incident. PW-22 was also present at that time with PW-2 and PW-17 whereas, PW-13 was present at the time of initial quarrel between the accused persons and the deceased. Accused A-3 is also alleged to have beaten PW-17 thereby causing injuries on her body. The deceased was removed to GGS Hospital by PW-2 and PW-17. PW-22, PW-2 and PW-17 also tried to save the life of deceased. 17.17. To understand how these eye witnesses described the incident, I am making an attempt to reproduce the substance of their deposition.
TESTIMONIES OF MATERIAL PROSECUTION WITNESSES 17.18. The FIR (Ex. PW23/C) of the present case was registered upon the complaint (Ex. PW2/A) of PW-2. The testimony of PW-22, PW-2 and PW-17 shows that on 01.02.2018 around 08.00 PM, they all were present at the spot of incident.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 74 of 121 PW-2 & PW17 reached on the spot after receiving a telephonic call from PW-6 Mr. Gulshan Raj regarding beating of their son. This fact is substantiated not only from the deposition of PW-6 wherein, he has deposed about giving telephonic information about the quarrel to PW-2 but also from the Call Detail Records (Ex. PW12/D, Colly) of mobile phone of PW-6 and PW-2.
PW-13 reached on the spot after receiving a telephonic call regarding the same from his friend Anmol Singh (PW-22).
TESTIMONY OF PW-22 ANMOL SINGH 17.19. PW-22 Anmol Singh had seen deceased Ankit Saxena outside his shop around 07.45 PM on that day. At that time, deceased was talking to someone on phone and was moving towards panwari shop (paan shop). A few minutes later, his neighbour/owner of Chatwal Auto Works came and informed PW-22 that son of Saxena was beaten. PW-22 went outside his shop and saw that the accused persons had surrounded the deceased and were abusing him. They were also asking about Ms. Shehzadi, daughter of accused A-2. The deceased asked PW- 22 to call his parents at the spot. Before leaving the spot, PW-22 called his friend PW-13 Nitin and asked him to come on the spot. Thereafter, PW-22 noticed that Ankit's father was already coming to the spot. They both reached on the spot. PW-22 also noticed that Ankit's mother had already reached on the spot. Accused A- 3 was abusing Ankit and was asking about whereabouts of Ms. Shehzadi. They tried to intervene and calm them down, but accused A-3 started abusing them as well. Ankit tried to reason FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 75 of 121 with accused persons and said that the matter can be resolved at the police station. However, the incident became more serious and all four accused started beating Ankit. When Ankit's mother (PW-17) tried to rescue him, accused A-3 began to assault her as well. Fight also started between Ankit and JCL 'A'. Mr. Yashpal Saxena (PW-2) and PW-22 Anmol Singh tried to rescue Ankit's mother from accused A-3. Thereafter, PW-22 saw that accused A-1 and JCL 'A' had caught hold of Ankit's hands and accused A-2 caught hold of Ankit's hairs from behind and silted Ankit's throat with a knife. PW-22 immediately went towards Ankit, who through actions indicated to PW-22 about silting of his throat. PW-22 saw that Ankit was bleeding profusely from his wound. He became very nervous and scare and realized the need for help. Therefore, he left to call PW-13 Nitin from his house, who was staying very close to the place of incident. However, bike of PW-13 Nitin was not parked at its spot. PW-22 made telephonic call to PW-13 and informed him about the incident that "Ankit's throat had been silted". He asked him to reach on the spot and thereafter returned to the spot. On reaching, he was informed that Ankit's parents had already taken Ankit to the hospital. PCR Van came on the spot. The crowd had apprehended accused A-1 and handed over him to PCR officials. Police officials made inquiries from him. Thereafter, PW-22 went to GGS Hospital and found that Ankit had died. Statement of PW-22 was recorded on the next day i.e. 02.02.2018 by the police. Thereafter, on 26.02.2018, his statement under Section 164 Cr. P.C (Ex. AD-1) was recorded.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 76 of 121 17.20. PW-22 has correctly identified all the accused persons during his deposition in the Court stating that the accused persons were known to him being residents of the same locality as they were previously residing in the lane of this witness. He has also identified the knife (Ex. MO-10) stating that the knife produced is the same knife which was used by accused A-2 to silt the throat of deceased.
17.21. The deposition of PW-22 shows that he was the first person, who noticed the presence of deceased Ankit Saxena on the date of incident just outside his shop and he was the first person to reach on the spot and witnessed the quarrel between the deceased and accused persons. He had also informed PW-13 about the said quarrel. He along with both parents of deceased (PW-2 and PW-17) He has also identified all the accused persons as well as weapon of offence i.e. knife (Ex. MO10), used by the accused A-2 for silting the throat of deceased Ankit Saxena. made an attempt to protect the deceased from the accused persons. PW-17 was also assaulted by accused A-3 in his presence. He also witnessed the actual incident of silting the throat of the deceased by the accused persons with a knife. He has also identified all the accused persons as well as weapon of offence i.e. knife (Ex. MO10), used by the accused A-2 for silting the throat of deceased Ankit Saxena.
17.22. PW-22 was cross examined at length by the learned defence counsel, but nothing favourable to the accused persons could come on record. PW-22 has admitted that he was the close friend of deceased and used to roam together with the FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 77 of 121 deceased. He had denied the suggestion that his santro car was parked near the scene of incident. He has clarified that he does not have any santro car. He has deposed that the spot of the incident is around 10-20 steps from his shop. The incident was witnessed by the public persons and shopkeepers but they are not coming forward to rescue the deceased as accused A-3 was abusing everyone. As far as he remember, the knife was in the right hand of accused A-2. The entire incident had happened within 5-10 minutes. His friend Nitin (PW-13) is residing above his shop. He has denied the suggestion about not witnessing the incident. He could not save the deceased because the incident happened very quickly (ye sab bahut jaldi jaldi ho gaya). He was infront of the deceased at the time of incident. He has explained the reason for not asking the accused persons for abusing the deceased by saying that the accused persons were taking the name of Ms. Shehzadi, so he thought that the incident was happening with respect to her. (Shehzadi ko lekar jhagda hua hoga). Ms. Shehzadi and deceased were close to each other. Ankit had told him about the same and he had seen Ankit and Ms. Shehzadi together. He has also noticed that Ankit and Ms Shehzadi talking to each other on phone. He has denied the suggestion that Ankit and Ms. Shehzadi were not close to each other or that he had not seen them together. Deceased was beaten for around 2-3 minutes by all the accused persons. The incident of silting the throat of deceased took place immediately after beating of the deceased by the accused persons. He has denied the suggestion that the accused persons were not present at the spot at the time of incident. He has also denied the suggestion FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 78 of 121 that he was not present at the spot or that he is deposing falsely being the friend of deceased.
17.23. The entire cross examination of PW-22 shows that this witness has stood the acid test of cross examination as he substantially reiterated his statement recorded during investigation by the Investigating Officer and by the learned Metropolitan Magistrate under Section 164 Cr. P.C (Ex. AD-1). It does not show anything favourable to the accused persons. Therefore, I believe his testimony to be trustworthy and reliable qua his presence on the spot at the time of the incident and qua witnessing of silting the throat of deceased. His testimony also shows that apart from him, PW-2 and PW-17 were also present on the spot and had witnessed the incident of murder of their son.
TESTIMONY OF PW-2 & PW-17 17.24. The testimony of PW-2 & PW-17 shows that on the date of incident, they reached on the spot subsequent to receiving a phone call from PW-6 Mr. Gulshan Raj regarding beating of their son Ankit Saxena. When they reached on the spot, PW-22 also reached on the spot. They noticed that the accused persons were abusing and scuffling with the deceased.
17.25. Accused A-3 was loudly saying ""हररमजरदद आज तद रद कक नहह छकडड गद , आज तद रर करम तमरम करनर हह " (haramjade aaj tere ko nahi chhodenge, aaj tera kaam tamam karna hai). Remaining accused persons were also hurling abuses and assaulting the deceased. When PW-17 tried to protect her deceased son, FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 79 of 121 accused A-3 started assaulting her. When PW-2 tried to save his wife (PW-17), he was pushed by accused A-3. Accused A-1, A-2 and JCL 'A' were telling deceased that "हमररद घर कह इजजत कद सरथ खखलवरड करनद कर नतहजर तत झद बतरतद हह " (hamare ghar ki ijjat ke sath khilwad karne ka natija tujhe batate hai). Accused A-2 said that "मद रह बद टह शहजरदह कर पहछर तत एद सद नहहह छकडद गर" (meri beti Shehzadi ka pichcha tu aise nahi chodega). Accused A-3 shouted and said that "तत महड कसम हह अललरह कह खक इसकक अरज नहहह छकडनर" (tumhe kasam ha allah ki, kee isko aaj nahi chhodna). Accused A-1 caught hold right hand of deceased Ankit whereas, JCL 'A' caught hold the left hand of deceased. In the meantime, accused A-2 caught hold of hairs of deceased and cut his throat with a knife.
17.26. PW-17 has deposed that accused A-2 took out a knife, caught hold of her son by his hairs and then slashed his neck (baal pakad ke piche se gala kata). Ankit fell on pavement. She saw Ankit points towards his neck to Anmol (PW-22). They were very agitated and crying. PW-2 and PW-17 lifted their son in an e-rickshaw and took him to GGS Hospital where, deceased was declared dead by the doctors. PW-17 also suffered injuries in the incident and was given medical treatment in GGS hospital (Ex. PW7/B) and subsequently in Safdarjung Hospital. Police recorded the statement of PW-2 (Ex. PW2/A) and also examined PW-17.
17.27. Both the said witnesses have correctly identified the accused persons during their deposition. PW-17 had also stated that accused A-2 & A-3 and JCL 'A' used to reside close to FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 80 of 121 their residence and are known to them for about 10-12 years. PW-2 has clarified in his deposition that he was having two sim cards in his mobile phone which were 98XXXXXX28 & 95XXXXXX17 and on which, he received the call about the quarrel on that day. The number from which he received the call was starting with 70 and its last four digits were 10645. This is also corroborated from the testimony of PW-6 Mr. Gulshan Raj wherein, he has deposed that he had made a call to PW-2 from his aforesaid mobile number. This is also corroborated from Call Detail Records (Ex. PW12/D, Colly) of PW-6 and PW-2.
17.28. PW-2 has also identified his cloths seized during investigation. The same were marked as MO-1 and MO-2. PW-2 also identified the shoes, jacket, shocks of his deceased son as MO-3, MO-4 & MO-5, blood gauze MO-6, stained earth control as MO-7 and stained tile MO-8. Similarly, PW-17 has identified her cloths as Ex. MO-11.
17.29. PW-2 and PW-17 were cross examined at length by the learned defence counsel wherein, PW-2 and PW-17 have denied the suggestion that none of the accused person was present on the spot. PW-2 has deposed that the entire incident took place within 2 ½ -3 minutes. PW-17 has also deposed about the presence of PW-22 Anmol on the spot and during cross examination, has admitted that except Anmol, no public person had intervened the incident. She has denied the suggestion that she did not hear the phrases of the words used by the accused persons at the time of beating and killing her son. She has denied the suggestion about the existence of a quarrel with accused FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 81 of 121 persons due to her son's acquaintance with daughter of accused A-2. She has also denied the suggestion about the false implication of the accused persons as she was against the friendship between her son Ankit and daughter of accused A-2.
17.30. Similarly, PW-2 in his cross examination has specified the number i.e. XXXXXXX645 from which, he received the telephonic call from caller Gulshan (PW-6) regarding beating of his son by the accused persons. He has also stated that approximately 400-500 people were present near the spot and there was sufficient light at the spot. He has denied the suggestion about insufficiency of light near the spot at the time of incident. He has clarified that he was at a distance of only 7-8 feet from his son Ankit at the time of the incident and when his son was being assaulted by the accused persons. He has denied the suggestion that none of the accused person was present on the spot. He has clarified that apart from him, PW-22 and his wife PW-17 also tried to save the deceased from the accused persons. He has clarified that he did not call the PCR because he found his wife was being assaulted by the accused A-3 and his son was being beaten by the remaining accused persons. He was trying to protect them from the accused persons due to which, he had no time to call the police. Duration of incident is also clarified by him by saying that the same had taken place within 2 ½ - 3 minutes. He has denied the suggestion that his son was having any quarrel with the shopkeepers near the place of incident or that he did not witness any scuffle. During investigation, he was taken to the spot by the Investigating Officer on 28.02.2018. He noticed that PW-22 was coming to call him and met him in the FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 82 of 121 midway. He has again denied the suggestion that neither accused A-1 nor accused A-3 were present on the spot. He has again denied the suggestion that the accused persons were not present on the spot.
17.31. The deposition of these two witnesses viz. PW-2 and PW-17 shows that the deceased was taken by them in an e- rickshaw to the hospital. The cloths worn by PW-2 and PW-17 seized during investigation, were found containing blood stains of blood of deceased. This is proved from the FSL Report Ex. PW25/A. This also substantiates their presence on the spot.
17.32. Further, the deposition of these two witnesses viz. PW-2 and PW-17 substantiates the deposition of PW-22 and also substantiates their presence on the spot and witnessing of the incident of murder of their son deceased Ankit Saxena.
17.33. Although, PW-2 and PW-17 are the family members of the deceased but their testimony cannot be discarded on this sole ground because meticulous examination of their testimony establishes their presence on the spot and witnessing of murder of their son by the accused persons. In Waman & Ors. Vs. State of Maharashtra (supra), it was held by the Hon'ble Apex Court that the evidence of relatives of the deceased cannot be thrown out merely due to his relationship with the deceased/victim. If the evidence of such witness is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, relationship is not a factor to affect the credibility FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 83 of 121 of a witness and the Courts have to scrutinize their evidence meticulously with a little care.
17.34. Moreover, the accused persons have also failed to show the existence of any enmity between them and PW-2 & PW-17, which could have prompted these witnesses to falsely implicate the accused persons in this case. Hence, their testimony cannot be discarded merely on the ground of being the parents of the deceased. Reliance is placed upon Waman & Ors. Vs. State of Maharashtra (supra) and Darya Singh & Ors. Vs. State of Punjab (supra).
17.35. Furthermore, the testimony of PW-2 and PW-17 is also corroborated from the testimony of PW-22 regarding the manner in which, the death of the deceased was caused by the accused persons. Medical witnesses viz. PW-14 & PW-7 and forensic witness (PW-25) have also proved the injuries received by PW-17 on her body and the blood of the deceased detected on the cloths of PW-2 and PW-17, which comes on their cloths during the process of removing the deceased from the spot to GGS Hospital.
17.36. These two witnesses have also firmly stood the test of cross examination. Their deposition is having the natural flow and found to be consistent with the prosecution case and the statements made by them during the investigation. Therefore, I also believe their testimony as trustworthy and reliable.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 84 of 121 TESTIMONY OF PW-13 NITIN 17.37. The deposition of PW-22 Anmol Singh also shows that he also called his friend Nitin (PW-13) on the spot. PW-13 in his deposition has deposed that deceased Ankit Saxena was his close friend and was residing behind his street. Accused A-2 and A-3 with their family members were previously residing in the street of deceased Ankit Saxena. Accused A-1 is the maternal uncle of Ms. Shehzadi, (daughter of accused A-2 & A-3) and was also residing in the same locality. Ms. Shehzadi daughter of accused A-2 and accused A-3 was having love affair with deceased Ankit Saxena. On the date of incident at about 08.00 PM, his friend Anmol Singh (PW-22) informed him that a quarrel had taken place with Ankit Saxena near paan shop, situated at the corner of their street. PW-22 was working at a mobile shop, situated at the ground floor of his building. He immediately came down and reached at the spot and saw gathering of huge crowd. He saw that accused A-1, A-2, A-3 and JCL 'A' have apprehended his friend Ankit Saxena. Accused A-3 was holding collar of deceased whereas, the remaining accused were giving beating to the deceased. He tried to rescue his friend, then accused A-3 came forward and tried to bite on his hand and threatened him by saying that "teri bhi to behan hai, tu pichhe hat ja". Thereafter, Ankit came backward and pulled PW-13 and told him that Ms. Shehzadi was standing near Tagore Garden Metro Station and requested PW-13 to accompany Ms. Shehzadi from Tagore Garden Metro Station to the police station, but PW- 13 refused to leave the spot without Ankit. However, due to his repeated requests, PW-13 left for Tagore Garden Metro Station on his bike. When he was on the way, he received a call from FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 85 of 121 Anmol Singh (PW-22) that "Ankit ka gala kaat diya hai, tu kahan hai". Thereafter, he called Ms. Shehzadi, but her phone was switched off. He reached Tagore Garden Metro Station and found Ms. Shehzadi after about 5-7 minutes at HDFC Bank lane. She inquired about Ankit and he informed that her family members had cut the throat of Ankit. He told Ms. Shehzadi that "mai Ankit ko dekh kar aata hu, tum yahin ruko". He again received a phone call from PW-22 informing him that Ankit was being shifted to the hospital. He reached at the spot and came to know that Ankit had been shifted to GGS Hospital. He reached at GGS Hospital and met with his friend Ankush (PW-4), who informed him that Ankit Saxena had already been declared dead by the doctor. Thereafter, PW-13 and PW-4 came to Tagore Garden Metro Station and met Ms. Shehzadi and left for PS Khyala. Ms. Shehzadi and PW-14 Ankush remained present in the police station Khyala. He left the police station and went back to the hospital. Statement of PW-13 was recorded during investigation by the Investigating Officer on 02.02.2018 and by the learned Metropolitan Magistrate on 26.02.2018 under Section 164 Cr. PC (Ex. PW13/A). At the time of incident, he was using mobile phone number 7011602257 (Jio network). He had also identified all the accused persons during his deposition in the Court.
17.38. During cross examination, PW-13 clarified that deceased Ankit Saxena was having love affair with Ms. Shehzadi and apart from him, his friend Anmol Singh (PW-22) was also aware about the said love affair whereas, parents of deceased Ankit Saxena were not aware about the same. He has denied the suggestion that accused A-1 and A-3 were not present FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 86 of 121 at the spot. Nothing favourable to the accused persons could come on record during his lengthy cross examination by the learned defence counsel. Therefore, his testimony is also found to be reliable.
TESTIMONY OF PW-4 ANKUSH 17.39. The deposition of PW-13 also shows that he along with PW-4 Mr. Ankush brought Ms. Shehzadi, daughter of accused A-2 & A-3 to police station Khyala. This fact is substantiated from the deposition of PW-4 Mr. Ankush who reached on the spot after receiving phone call from PW-22 about stabbing of Ankit with knife. PW-4 immediately went to the spot and found gathering of crowd and presence of PCR vehicle on the spot. Accused A-1 was found sitting in the said PCR. PW-4 along with PW-22 went to GGS Hospital and met with PW-17 and made inquiries about Ankit from the doctor. Doctor informed him about the death of Ankit. Thereafter, PW-4 came outside from the hospital and met with PW-13 Nitin, who informed that Ankit had sent him to the Metro Station for picking up Ms. Shehzadi, who was the friend of Ankit. PW-4 along with PW- 13 went to the metro station and found Shehzadi present at Tagore Garden Metro Station. They took her to police station Khyala. He has identified the accused A-1 being the uncle (mama) of Shehzadi.
17.40. Both these witnesses viz. PW-13 and PW-4 had also firmly stood the test of cross examination and nothing favourable to the accused persons could come on record in their cross FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 87 of 121 examination. Therefore, the testimony of these two witnesses is also found to be reliable.
17.41. The deposition of all these witnesses viz. PW-22, PW-2, PW-17, PW-13 and PW-4 is corroborated from the deposition of each other. The deposition of PW-22, PW-2 and PW-17 is also corroborated by each other regarding their presence on the spot, witnessing of the incident, role played by each and every accused in causing the death of deceased Ankit Saxena and also about the manner of causing his death as well as the weapon of offence, used by the accused persons for causing death of the deceased. The deposition of PW-22, PW-2, PW-17 and PW-13 also shows the words/phrases used by the accused persons at the time of beating and killing the deceased Ankit Saxena. The deposition of PW-22, PW-2 and PW- 17 also shows that accused A-3 had caused injuries to PW-17.
Therefore, the presence of the aforesaid prosecution witnesses viz. PW-2, PW-17 and PW-22 on the spot, is duly corroborated and also proved from the deposition of PW-13, PW-14, PW-7 and PW-25.
TESTIMONY OF MATERIAL DEFENCE WITNESSES TESTIMONY OF DW-1 & DW-2 17.42. The accused persons have examined six witnesses in their defence. DW-1 is the real sister of accused A-3 whereas, DW-2 is the niece of accused A-1. Both have deposed that they reached on the spot when the deceased was being taken to the hospital. Both of them saw the parents of deceased when they FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 88 of 121 were coming from the street. This shows that both of them reached on the spot after the commission of the offence and have not seen the killing of deceased Ankit Saxena. DW-1 had pleaded her ignorance regarding the person who took the deceased to the hospital in an auto rickshaw whereas, according to DW-2 the deceased was taken to the hospital by the public persons. However, the deposition of both these witnesses is unbelievable because the MLC of the deceased (Ex. PW7/A) shows that the deceased was brought to the hospital by his father (PW-2). Similarly, DD No. 42A (Ex. PW23/A) also shows that the deceased was taken to the hospital by his parents (PW-2 and PW-17). Further, the deposition of PW-7 also shows that the injuries on PW-17 were noticed by PW-7 at the time of her arrival in the hospital in terms of Ex. PW7/B. 17.43. Further, the deposition of these witnesses viz. DW-1 and DW-2 fails to inspire the confidence of the Court because DW-2 in her deposition has specifically deposed that when she visited the spot, she saw Ankit Saxena was lying there on the road and was bleeding at the spot. She also saw that all the accused persons were also present on the spot. She also saw PW-22 Anmol at the spot and she was standing close to PW-22, who informed PW-2 and PW-17 (parents of the deceased) that accused A-2 stabbed Ankit Saxena. Parents of the deceased inquired about whereabouts of their son Ankit Saxena from PW- 22 and were told that the deceased has been taken to the hospital by the public persons in e-rickshaw. Thereafter, she rushed towards her mausa accused A-2 and made inquiries in her perplexed state of mind as to what had happened. Her mausa FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 89 of 121 accused A-2 told that even he does not know how this had happened. This shows that according to this witness, all the accused persons were also present on the spot at that time whereas, all the accused persons during trial had taken a defence that none of them was present on the spot. The accused persons had pleaded their complete ignorance regarding the death of the deceased. However, the statements of the accused persons recorded under Section 313 Cr. P.C show that accused A-2 and A-3 are not only admitting their presence on the spot but also claiming that the deceased was not killed by them but by PW-22. Therefore, there is a huge contradiction between the deposition of DW-1 and DW-2 qua the defence taken by the accused persons. Hence, the deposition of DW-1 and DW-2 is unreliable being contradictory to the defence of the accused persons.
17.44. Apart from it, according to DW-2, PW-22 informed the parents of the deceased that accused A-2 had stabbed deceased Ankit Saxena. It is also admitted by this witness that huge crowd was present on the spot. The accused persons also at the fag end of trial had changed their defence and started claiming that the deceased was killed by PW-22 and not by them.
17.45. However, the deposition of PW-22 and the statement of the accused persons recorded under Section 313 Cr. P.C as well as the deposition of all the defence witnesses shows that none of the accused person or any defence witness contradicted PW-22 Anmol when he was informing parents of the deceased (PW-2 & PW-17) that their son was killed by accused A-2. This FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 90 of 121 conduct of the accused persons and defence witnesses is abnormal particularly considering the previous acquaintance between the deceased's parents and the accused persons being the residents of the same locality.
17.46. Moreover, the false implication of the accused persons by PW-22 in the presence of huge crowd of approximately 400-500 persons seems to be impossible because accused A-1 was caught on the spot by the public persons and was handed over to the police. Had the deceased was killed by PW-22 Anmol Singh, there was no reason for public to caught hold of accused A-1 instead of PW-22 Anmol Singh. The accused A-1 himself in his statement recorded under Section 313 Cr. P.C has admitted that some public persons pulled him from his scooty due to which he fell down. He was dragged from his back due to which, the blood spots were found on his dress.
17.47. Furthermore, the presence of such large number of public persons, also gave opportunity to accused A-2 to refute the claim/allegation of PW-22, but instead of doing so, the accused persons preferred to flee away from the spot.
17.48. Further, DW-2 in her perplexed state of mind had asked accused A-2/her mausa as to what had happened, who/accused A-2 informed her that even he does not know how this had happened. This statement shows that had the deceased was not killed by accused A-2, he must have clearly stated to DW-2 that the deceased was killed by PW-22 and not by him whereas, accused A-2 instead of denying his involvement in the FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 91 of 121 offence, is pleading before DW-2 by saying that even he does not know how this has happened. Thus deposition of DW-2 is also contradictory to the defence of the accused persons.
17.49. Furthermore, both these witness viz. DW-1 & DW-2 in their cross examination have admitted that they had visited the police station after the arrest of the accused persons in this case. They are fully aware about the arrest of all the accused persons in this case but despite that none of them, had given anything in writing to any authority or to the police about the facts of the case known to them. None of them filed any complaint against any police official regarding the false implication of all the accused persons in this case. None of them had filed any application in any Court of law for explaining the correct facts of the case or about the false implication of all the accused persons in this case. This cannot be said to be their natural conduct being the relatives, near and dear as well as well wishers of the accused persons because had the accused been falsely arrested in this case, these witnesses must have informed the authorities/courts about the correct facts and the false implication of the accused persons. Reliance is placed upon Vishal Yadav Vs. State of U.P. (supra). Apart from it, the version/deposition of these witnesses were never put to the prosecution witnesses during their cross examination. Therefore, the prosecution or its witnesses never had any opportunity of clarifying/contradicting the aforesaid deposition of defence witnesses. Reliance is placed upon Gyan Chand Vs. State of Haryana (supra).
Hence, the testimony of DW-1 and DW-2 is unbelievable and accordingly discarded.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 92 of 121 TESTIMONY OF DW-3 17.50. Now coming to the testimony of DW-3 Ms. Shehzadi. She is daughter of accused A-2 and A-3 and accused A-1 is her mama (uncle). She has admitted that deceased was her friend and she was having regular telephonic communication with the deceased. The prosecution has preferred not to make her a witness in this case. She was interrogated by the Investigating Officer during investigation of this case but no step was taken by the prosecution to examine her. Therefore, she has appeared as a defence witness for accused A-1 for disclosing the true facts before the Court and for seeking the acquittal of her parents and her mama. It is deposed by DW-3 that on the date of incident, PW-22 and PW-13 offered a lift to her in their santro car, but she declined the said offer, however, both of them tried to forcibly took her in the said santro car. She resisted and raised her voice which was heard by her friend Ankit (deceased) who rushed to the spot for her help. An altercation took place between her friend Ankit on one side and said PW-22 Anmol as well as PW-13 Nitin on the other side. Hot arguments were exchanged between them. Public gathered on the spot. Her father/accused A-2 was passing from the same area. She called him in a loud voice and informed about the force etc., used by PW-22 and PW-13 for preventing her from going towards the beauty parlor of her mother/accused A-3. Her father informed the police and also called her family members on the spot. He also tried to intervene in the ensuing altercation between above three persons. He again made a call to the police. When her father tried to pull her towards his side, PW-22 Anmol FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 93 of 121 pushed her father causing the fall of DW-3 and her father on the ground. She also helped her father to get up from the ground. She noticed that Ankit had fallen on the road and blood was oozing out from his neck. She got terrified. Public also raised hue and cry. Deceased was taken to the hospital in a CNG auto rickshaw. Parents of the deceased reached the spot after removal of Ankit from the spot. They made inquiries about the whereabouts of their son from PW-22, who informed that Ankit was killed by her father/accused A-2. Subsequently, her mother/accused A-3 also reached on the spot.
17.51. The deposition of DW-3 is also contradictory to the defence taken by all the accused persons during the trial of this case. All the accused persons had been claiming their absence from the spot and they have given suggestions to this effect to the prosecution witnesses viz. PW-2, PW-17, PW-22 and PW-13 during their cross examination whereas, DW-3 has deposed about the presence of her father/accused A-2 on the spot. She has also deposed that her father/accused A-2 had also called her other family members and her mother/accused A-3 reached subsequently on the spot.
17.52. Now, the question is had the accused A-2 was present on the spot and had called his family members including accused A-1 on the spot, why the accused persons were claiming their absence from the spot during the trial of the case. This witness has claimed that her mother/accused A-3 reached on the spot subsequent to the removal of the deceased from the spot but this is specifically contradicted by accused A-3 in her statement FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 94 of 121 recorded under Section 313 Cr. P.C wherein, she had claimed her presence on the spot by stating that the deceased was killed in her presence by PW-22 and PW-13.
17.53. Furthermore, PW-22 in his cross examination has specifically deposed that he never owned any car including any santro car in which PW-22 and PW-13 were allegedly offering lift to DW-3.
17.54. Apart from it, the deposition of DW-3 is contradictory to the ocular testimony of PW-2, PW-17, PW-22, PW-13 and PW-4. The same is also contrary to the medical and documentary evidences produced during the trial. The prosecution has established from the ocular deposition of aforesaid witnesses as well as from the deposition of PW-7 and PW-15 (medical & forensic witness respectively) that the deceased was taken to the hospital by his parents (PW-2 & PW-
17). The blood was also detected on their cloths in terms of the FSL Report Ex. PW25/A. Had these witnesses reached on the spot after the removal of the deceased to the hospital, there would not have been any occasion for having deceased's blood on their cloths, which was detecting upon their cloths during FSL examination (Ex. PW25/A). Similarly, the blood stains were also detected on the cloths of accused persons viz. Accused A-1 and accused A-2. Had these accused persons were not present on the spot or had not played any role in the commission of the offence, there would not have any occasion for the existence of blood stains of deceased's blood on their cloths.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 95 of 121 17.55. Furthermore, the deposition of DW-3 is also contradicted and contrary to the statement of accused A-2 recorded under Section 313 Cr. P.C because DW-3 in her deposition has claimed that when her father tried to intervene in the ensuing altercation of Ankit with PW-22 & PW-13 by trying to pull DW-3 towards his side. PW-22 Anmol pushed her father/accused A-2 causing the fall of DW-3 as well as her father. She helped her father to get up and noticed that Ankit had fallen on the road and blood was oozing out from his neck. She got terrified after seeing the same whereas, the accused A-2 in his statement recorded under Section 313 Cr. P.C, has stated that he called his wife/accused A-3 and his brother-in-law/Mohd. Salim (accused A-1) for his help on the spot. They reached on the spot and tried to rescue his daughter from the clutches of PW- 22 Anmol, who took out the sharp knife from his pocket and attacked with said knife upon accused A-2 and deceased Ankit Saxena. However, unfortunately the said knife got directly hurt/hit upon the throat of Ankit Saxena, who lost his control and fell down on the floor instantly with high bleeding and became dead. Similar facts are also stated by the accused A-3 in her statement recorded under Section 313 Cr. P.C. This shows that the accused A-2 and accused A-3 are claiming to be the witness of alleged knife attack by PW-22 upon the deceased as the said attack was initially directed towards accused A-2, but DW-3 nowhere deposed about the said attack upon her father, rather she is claiming the fall of her father with her and noticing the oozing of blood form the neck of the deceased. This further establishes the presence of all the accused persons on the spot whereas, DW-3 is claiming the arrival of her mother/accused A-3 FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 96 of 121 on the spot subsequent to the alleged offence. Therefore, the aforesaid contradictions between the deposition of DW-3 and the statement of her father/accused A-2 and her mother/accused A-3 put question mark regarding the veracity of her deposition.
17.56. The deposition of DW-3 is further contradicted by the statement of accused A-1 recorded under Section 313 Cr. P.C because accused A-1 is claiming his absence from the spot at the time of the alleged incident whereas, the statement of accused A- 2 and A-3 recorded under Section 313 Cr. P.C also shows the presence of accused A-1 on the spot at the time of incident.
17.57. Furthermore, DW-3 in her cross examination has also admitted that she also never made any complaint with any police authority or before any Court of law regarding false implication of her parents and mama in this case. This is again against the natural conduct of a family member/well wisher of the accused persons. This silence despite full knowledge of arrest, incarceration and implication of her parents and her mama for such serious offence for murder of her friend deceased Ankit Saxena, for such a long period is one more circumstance which renders her testimony incredible and not reliable. Reliance is placed upon Vishal Yadav Vs. State of U.P. (supra).
Therefore, it is held that the deposition of DW-3 seems to be motivated, tutored, guided, afterthought and does not inspire any confidence and accordingly rejected being unreliable. Reliance is also placed upon Jaswant Singh Vs. State of Haryana (supra).
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 97 of 121 TESTIMONY OF DW-4 17.58. As far as deposition of DW-4 is concerned, DW-4 was apprehended in this case for causing the murder of deceased Ankit Saxena. He is also facing the proceedings regarding the same before learned Juvenile Justice Board, Kingsway Camp, Delhi. The said proceedings are stated to be still pending. DW-4 remained apprehended for approximately 18 months in the said proceedings. It is admitted by DW-4 that he never challenged the proceedings of learned JJB on the ground of his false implication before any Court, including any Court of Sessions, High Court or Supreme Court. It is also admitted by him that he has not informed any authority about the false implication of himself or his family members/parents in this case.
Therefore, in view of the findings recorded during appreciation of the testimony of DW-1, DW-2 and DW-3, deposition of this witness/DW-4 also deserves to be rejected.
17.59. Furthermore, the accused persons during trial have taken the defence that none of them was present on the spot at the time of commission of offence. However, in their statements recorded under Section 313 Cr. P.C, accused A-2 and A-3 claimed their presence on the spot and alleged that the deceased was not killed by them, but by PW-22 & PW-13. The record reveals that during recording of testimony of prosecution witnesses, the accused persons had claimed that they were not present on the spot, they have given suggestions to this effect to all the material prosecution witnesses. However, for the first time at the time of recording of their statements under Section 313 Cr. P.C, accused A-2 & A-3 had claimed their presence on the spot FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 98 of 121 and had also claimed witnessing of murder of deceased by PW-
22. However, the accused persons have not given any explanation for not taking the said plea during recording of deposition of prosecution witnesses. Moreover, the said pleas of the accused persons were never put to prosecution witnesses during their cross examination. Therefore, the prosecution or its witnesses never had any opportunity of clarifying/contradicting the aforesaid stand of the accused persons. Reliance is placed upon Gyan Chand Vs. State of Haryana (supra).
17.60. Hon'ble Apex Court in Balu Sudam Khaldev Vs. State of Maharashtra (supra) has held that the incriminating suggestions given by the defence counsel during cross examination to witness, would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestion in the nature of admission against his client.
17.61. Herein, also, the accused persons were claiming their absence from the spot during the deposition of the prosecution witnesses and had given suggestions to this effect to all the material prosecution witnesses, but the same were refuted by all the material prosecution witnesses subsequently the accused persons viz. accused A-2 and accused A-3 started claiming their presence at the spot. Therefore, the said defence regarding their absence from the spot is nothing but the result of tutoring and clearly an afterthought.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 99 of 121 17.62. Furthermore, even the pleas of accused persons taken by them in their statements recorded under Section 313 Cr. P.C are contradicted from the deposition of DW-3 because accused A-2 and accused A-3 are claiming to be present on the spot at the time of killing of deceased by PW-22 whereas, DW-3 has claimed that her mother/accused A-3 reached the spot subsequent to the killing of deceased Ankit Saxena. Similarly, DW-3, accused A-2 and A-3 are claiming that apart from them, accused A-1 was also present on the spot whereas, accused A-1 in his statement recorded under Section 313 Cr. P.C is still claiming his absence from the spot.
Therefore, the same shows that they are taking contradictory defence during the trial of the present case and the same deserves to be discarded and rejected.
17.63. In view of the contradictory deposition of DW-3 and contradictory statements of accused A-1, accused A-2 and accused A-3 and also in the light of ocular evidences of PW-2, PW-17, PW-22, PW-13 and medical evidences of PW-7, PW-17 as well as forensic evidence of PW-25, the aforesaid contradictory defence of the accused persons deserves to be discarded and rejected.
17.64. Hence, it is proved from the consistent, credible and corroborated deposition of aforesaid material prosecution witnesses that all the accused persons viz. accused A-1, accused A-2 and accused A-3 as well as PW-22, PW-2 and PW-17 were present on the spot at the time of the incident.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 100 of 121 CULPABILITY OF ACCUSED PERSONS, WHETHER PROVED
18. Now, the most important question is whether the accused persons viz. Accused A-1, accused A-2 & accused A-3 in furtherance of their common intention had caused the murder of the deceased Ankit Saxena.
18.1. The prosecution has proved that the death of deceased Ankit Saxena was caused by a sharp edge weapon used for cutting his throat. The death of the deceased was homicidal (as per Ex. PW14/A). The prosecution has also proved beyond reasonable doubts the presence of PW-22, PW-2, and PW-17 at the spot at the time of incident. PW-13 was also present at the spot and had witnessed the initial quarrel. The prosecution has also proved beyond reasonable doubts the presence of all the accused persons viz. accused A-1, accused A-2 & accused A-3 on the spot. The prosecution has also proved that the aforesaid witnesses had seen the commission of the murder of the deceased Ankit Saxena.
18.2. This shows that all of them are the star prosecution witnesses and linchpin of the Prosecution case being the eyewitnesses. Therefore, the testimony of all these witnesses is required to be appreciated to find out whether the accused persons had caused the murder of deceased Ankit Saxena.
18.3. The testimony of PW-22, PW-2 and PW-17 shows that these witnesses have not only testified that the deceased was killed by all the accused persons by silting his throat with a knife but they have also testified about the manner in which, the quarrel had taken place, the exact FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 101 of 121 language/words/phrases used by the accused persons, the manner in which the deceased was apprehended/caught by the accused persons and how the throat of the deceased was cut by the accused persons with knife.
18.4. The testimony of these witnesses also shows that the accused A-3 was abusing the deceased, PW-2 and PW-17 by saying "haramjade aaj tere ko nahin chhodenge" "Tera kaam aaj tamam karna hai" "Allah ki kasam hai ki isko aaj nahi chhodna". Accused A-1 and the JCL "A" were saying to the deceased "hamari ijjat ke sath khelne ka natija aaj tujko batate hai". Accused No. 2 also said that "meri beti ka pichha tu aise nahi chhodega".
18.5. These witnesses have also deposed that the accused A-1 caught the right hand of the deceased and JCL "A" hold the left hand of deceased whereas, accused A-2 took out a knife and caught hold of deceased by his hairs and then slashed his neck (baal pakad ke piche se gala kaata). Deceased fell on the pavement. The deceased pointed towards his neck and said to PW-22 Anmol that his throat had been silted. Deceased was bleeding profusely from his wound. He was taken to the hospital and was declared "brought dead" by the doctor.
18.6. Similarly, the quarrel between the deceased and the accused persons was also witnessed by PW-13 Mr. Nitin. When PW-13 tried to rescue the deceased from the clutches of the aforesaid accused persons, accused A-3 tried to bite him on his hand and threatened PW-13 by saying that "teri bhi to behan hai FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 102 of 121 tu piche hat ja". Deceased also informed PW-13 about the presence of Shehzadi at Tagore Garden Metro Station and requested him to bring her to the police station Khyala.
18.7. When the testimony of these witnesses is analyzed in the light of aforementioned mandate of law, their cross examination does not elicit any response favouring the accused persons. Testimony of these witnesses shows that the entire incident is witnessed by PW-22, PW-2 and PW-17. The incident of initial quarrel between the accused persons and the deceased was witnessed by PW-13. These witnesses have duly identified the accused persons viz. Accused A-1, accused A-2 and accused A-3 as well as weapon of offence i.e. knife (Ex. MO-
10) during the trial. They have corroborated each other on the aspect of witnessing the offence of killing the deceased, the role played by each and every accused persons in causing the death of the deceased, the words/phrases/language used by the accused persons at the time of beating and killing the deceased, the manner of causing his death and the weapon used for silting the throat of the deceased.
18.8. These witnesses have consistently elucidated what the accused persons viz. accused A-1, accused A-2 and accused A-3 did to the deceased and how they committed the alleged offence. These witnesses have not been traversed on material aspects of the ingredients of the offence. Their testimony before the Court is contemporaneous to the alleged offence and are consistent on all material aspects that constitute the offence.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 103 of 121 18.9. The testimony of all these witnesses is also corroborated from the medical examination/postmortem report Ex. PW14/A, diagram sheet Ex. PW14/C showing the external injury on the dead body of the deceased as well as the with the subsequent opinion Ex. PW14/B. The deposition of PW-14 Dr. Neeraj Kumar Garg who conducted the postmortem of the deceased Ankit Saxena, also corroborates the testimony of PW- 22, PW-2 and PW-17.
18.10. This witness/PW-14 in his deposition has deposed that the death of the deceased was homicidal, caused by incised wound on the neck of size 9.5 cm X 4 cm X 2 cm found present horizontally on the neck. Tailing was also present on the right of the wound. This witness has described the injury as a cut throat injury. The knife Ex. MO-10 recovered at the instance of accused A-2 was also examined by PW-14 for subsequent opinion regarding consistency of the weapon of offence with the injuries received by the deceased. PW-14 vide his subsequent opinion Ex. PW14/B has opined that the injury on the neck of the deceased could have been caused by the knife in question.
18.11. PW-14 in his cross examination has clarified that the deceased could not have survived for more than 1 to 3 minutes after having been caused the injury no. 1 on his neck. He has further clarified that deceased could not have survived after receiving injury no. 1 on his neck even if he was given proper medical assistance. He further clarified that survival after receiving of injury no. 1 is not possible as immediate death occurs due to injury no. 1 on the neck due to hemorrhagic shock FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 104 of 121 in 1 to 3 minutes of time. The witness has also stated in his cross examination that no other injury was found on the body of the deceased except the injury no. 1 on his neck. Time since death was also mentioned by him in the postmortem report Ex. PW14/A and it was approximately 18 hours prior to the postmortem examination of the dead body of the deceased. PW- 14 in his cross examination was put following specific questions by the learned defence counsel that:
Question: The injury found on the neck of the deceased was left to right or right to left. Please specify?
In answer to the same, the witness has deposed that the injury found on the deceased was cut throat injury. Tailing specifying directions are more clear in case of superficial incised wounds. In this case, however, tailing is towards the right side but it does not suggest a clear demarcation regarding directions. However, the accused persons or their learned counsel never gave any suggestion regarding the injury being a stab wound injury to this witness whereas, DW-2 and other defence witnesses claimed that the deceased was killed by PW- 22 by giving a stab injury. This also falsify the defence of the accused persons. This goes to prove that the death of the deceased was due to the cutting of his throat by a sharp weapon as the tailing were found present on the right side of the wound on his neck. This also shows that the death was not the result of any stab injury because PW-14 does not observe any other injury except injury no. 1 on the body of the deceased.
18.12. This also shows that the deposition of PW-14 substantiates and corroborates the testimony of eyewitnesses PW-
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 105 of 121 22, PW-2 and PW-17 regarding the manner in which the deceased was killed, the weapon used for killing the deceased. The aforesaid eyewitnesses have categorically deposed that the entire incident of silting the throat of the deceased took place within 2 ½ - 3 minutes. The same is substantiated from the fact that the deceased was declared brought dead in the hospital and PW-14 has clarified that the deceased could not have survived for more than 1 to 3 minutes after receiving the injury no. 1 on his neck. He has further clarified that the deceased could not have survived from injury no. 1 even if he was given proper medical assistance. It is further clarified that the survival from injury no. 1 is not possible as it causes immediate death due to hemorrhagic shock in 1 to 3 minutes of time. PW-14 has also substantiated that the deceased was having a cut throat injury and tailing was found present. The same substantiates the deposition of eyewitnesses that the accused A-2 used a knife for silting the throat of the deceased Ankit Saxena.
18.13. Apart from it, the ocular testimonies of prosecution witnesses are duly corroborated from the medical evidences of PW-14 and the same is not at all at variance with the medical evidences. This also lends credence to the prosecution case against all the accused persons viz. accused A-1, accused A-2 and accused A-3. Reliance is placed upon Virendra Vs. State of U.P (supra) and State of State of U.P. Vs. Hari Chand (supra).
18.14. Apart from it, the deposition of eyewitnesses is further corroborated from the deposition of FSL Expert/PW-25 Dr. Sarabjit Singh. PW-25 has deposed in FSL Report Ex.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 106 of 121 PW25/A that alleles from the blood of the deceased were found on the earth control (Ex. MO7), on the cloths of PW-2 (Ex. MO1 & Ex. MO2) and on the cloths of PW-17 (Ex. MO-11). The alleles from the blood of the deceased were also found on the cloths of accused A-1 and A-2. The same were also found on the knife (Ex. MO10), recovered at the instance of accused A-2 and used in silting the throat of the deceased Ankit Saxena. This substantiates the prosecution case regarding presence of PW-2 and PW-17 as well as accused persons on the spot.
18.15. Similarly, detection of blood of the deceased on the cloths of the accused A-1 and accused A-2 in terms of Ex. PW25/A again substantiates the prosecution case against them and is sufficient to discard their initial defence regarding their absence from the spot. Further, detection of blood of deceased on the knife (Ex. MO-10), recovered at the instance of accused A-2 and seized vide seizure memo Ex. PW24/A substantiates the prosecution case that the same knife (Ex. MO10) was used by the accused A-2 for silting the throat of the deceased in the presence of his parents.
18.16. What is clinching for the prosecution is the fact that the blood stains of the deceased were found on the knife (Ex. MO7), used by the accused A-2 for silting the throat of deceased. This further lends credence to the prosecution case and proved the role of the accused persons beyond reasonable doubts.
Therefore, there is no ground for discarding the testimony of prosecution witnesses viz. PW-22, PW-2 and PW-17 as the same is not only substantiated from the testimony of each FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 107 of 121 other but also from the testimony of PW-14 (postmortem witness) and PW-25 (forensic expert) respectively as well as from the testimony of remaining prosecution witnesses.
DEFENCE OF ACCUSED PERSONS 18.17. The accused persons in their defence have examined six witnesses. DW-1, DW-2, DW-3 and DW-4 are their family members/relatives whereas, DW-5 and DW-6 are the formal witnesses and produced the summoned record. The testimony of DW-1 to DW-4 has already been found by this Court in terms of the aforesaid discussion and findings to be motivated, tutored, guided, contradictory, afterthought, unbelievable and unreliable and has already been discarded and rejected. Therefore, there is no substance or truth in the facts deposed by the aforesaid defence witnesses.
18.18. Similarly, the statements of accused persons recorded under Section 313 Cr. P.C have been found to be contradictory with each other particularly the statements of accused A-2 & A-3 are contradictory to the defence taken by them regrading their absence from the spot. The statement of accused A-1 is also contradicted by DW-3 wherein, she has deposed that her father/accused A-2 had also called her family members on the spot as well as from the statement of accused A- 2 recorded under Section 313 Cr. P.C, who had stated that he called his wife/accused A-3 and accused A-1 on the spot for his help.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 108 of 121 18.19. In view of the same, it can be said that entire defence of the accused persons is an afterthought, tutored, guided and the same is contradicted by the ocular testimony of material prosecution witnesses, medical witnesses and forensic witness as well as by the objects and the documents collected during investigation. Hence, the same deserves to be rejected.
18.20. Further, the deposition of PW-14 (medical witness), PW-25 (forensic witness) also shows that the deposition of eyewitnesses viz. PW-2, PW-17 and PW-22 is not the outcome of any tutoring or guidance. The accused persons have failed to prove the existence of any enmity between them and the prosecution witnesses, therefore, they cannot be said to be falsely implicated by the material prosecution witnesses. Although, PW- 2 and PW-17 are the parents of the deceased whereas, PW-22 is the close friend of the deceased, but their testimony cannot be rejected merely because they are the family members/close relatives of the deceased. Reliance is placed upon Waman & Ors. Vs. State of Maharashtra (supra), State of Uttar Pradesh Vs. Atul (supra) and Gulab Vs. State of U.P (supra).
Therefore, there is no substance in the argument that the deposition of eyewitnesses is contradictory or the same is not corroborated or that these witnesses are not corroborating each other or that their deposition is the result of any tutoring or guidance. Their testimony is consistent and corroborated with the testimony of remaining witnesses, medical & forensic witnesses as well as the objects and documents collected during investigation. The objects collected during investigation vide seizure memo Ex. PW2/B, Ex. MO-1, Ex. MO-2, Ex. MO-3, Ex.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 109 of 121 MO-4, Ex. MO-5, Ex. MO-6, Ex. MO-7, Ex. MO-9 and Ex. MO- 11 etc., were duly identified by the material prosecution witnesses. Scaled site plan (Ex. PW1/A), DD No. 41A (Ex. PW19/B) and DD No. 44A (Ex. PW23/B) were also duly proved by these witnesses. The deposition of these witnesses is also corroborated from the deposition of PW-6 and from the crime scene report Ex. PW10/A and also from the photographs (Ex. PW10/B) of the spot showing the presence of blood.
18.21. Furthermore, PW-17 received injuries from accused A-3 during her attempt to save her son from the accused persons. PW-23 has proved DD No. 44A (Ex. PW23/B) regarding the injuries of PW-17. Her MLC (Ex. PW7/B) is duly proved from the deposition of PW-7. The factum of injuries on the body of PW-17 is duly proved from the deposition of PW-17, PW-7 and PW-23 as well as from the deposition of remaining prosecution witnesses. Therefore, the testimony of PW-17 being an injured witness, stands on a higher pedestal and cannot be discarded without existence of strong ground to disbelieve the same which in the present has been found to be missing. Reliance is placed upon Bhagirath Vs. State of M.P. (supra).
18.22. Further, PW-14 has deposed that the injuries found on the body of the deceased could have been caused with the weapon/knife (Ex. MO-10) which was recovered at the instance of accused A-2. This also proves the culpability of the accused persons.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 110 of 121 18.23. It has also been argued that the incident have been taken place at a public place and in the presence of approximately 400 plus public persons, non participation of such independent witnesses should lead to adverse inference.
18.24. In the case of State of U.P. Vs. Anil Singh, AIR 1988 SC 1998, it was held that in some cases the entire prosecution case is doubted for not examining all witnesses to the occurrence. The general indifferent attitude of the public in the investigation of the crime or the fact that the public are generally reluctant to come forward to depose before the courts, cannot be lost sight of. It is, therefore, not correct to reject the prosecution version on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses. If the case made out is otherwise true and acceptable.
18.25. In the case of Appa Bhai Vs. State of Gujarat, AIR 1988 SC 696, it was held that these days people in the vicinity where the incident took place, avoid to come forward to give evidence and civilized people are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilante.
Therefore, it can be said that our settled law requires quality evidence rather than quantity of evidence. PW-2, PW- 17, PW-22 and PW-13 have passed the muster of reliability in this case. Their words as eye witnesses should suffice. Hence, the non examination of the independent public witnesses does not seems to be fatal for the prosecution case.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 111 of 121 18.26. The argument regarding the discrepancies in the deposition of prosecution witnesses also deserves to be rejected because all the material prosecution witnesses have deposed consistently and have corroborated the deposition of each other. The discrepancies (if any) existing in their deposition are not touching the core of the prosecution case. Therefore, these discrepancies (if any) are required to be ignored being minor discrepancies. Reliance is placed upon Satish Bombaiya v. State (supra).
18.27. Further, the arguments of the learned defence counsel regarding defective investigation and the deliberate delay in sending the exhibits for FSL Examination also do not find any favour from this Court because the deposition of the prosecution witnesses clearly shows that the exhibits/objects collected during investigation, were duly sealed. The testimony of PW-27 shows that the exhibits/objects (Ex. PW27/A to Ex. PW27/R) were deposited in the police Malkhana in sealed condition and their seals remained intact/untampered during their custody with PW-
27. This fact is also not controverted by the accused persons because all of them have preferred not to cross examine PW-27 regarding the possibility of any tampering with the case properties. Reliance is placed upon Dayal Singh Vs. State of Uttranchal (supra).
18.28. This fact is further established from the FSL Report Ex. PW25/A as PW-25 Dr. Sarabjit Singh, who examined the exhibits/objects and has deposed that on 28.02.2018 he received FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 112 of 121 14 sealed parcels along with forwarding letter no. 567 of case FIR No. 23/2018, PS Khyala. He tallied the seals on the parcels which were found intact and corresponding to the specimen seal impression on the aforesaid forwarding letter. The FSL Report Ex. PW25/A also establishes the existence of blood stains of the blood of the deceased on the cloths of PW-2 and PW-17 as well as upon the cloths of accused A-1 & accused A-2. It also establishes the existence of blood stains of the deceased on the knife (Ex. MO-10) i.e. the weapon of offence, recovered at the instance of accused A-2 and used for silting the throat of the deceased. In view of the above, this argument also stands discarded.
18.29. Apart from it, it is also argued that the DD No. 41A was recorded at the instance of the accused A-2 as he informed the police about abduction of his daughter Ms. Shehzadi. Therefore, the accused persons were not the aggressor rather, they were only protecting their daughter/niece. Admittedly, SI Anand Prakash (PW-24) went to the spot on receipt of DD No. 41A (Ex. PW19/B) as its caller had informed that meri ladki ko lekar bhag raha tha, jise pakad liya hai, police bheji jaye. However, neither the accused A-2 nor his learned counsel put any question regarding the same either to PW-19 Constable Deepak who proved DD No. 41A as Ex. PW19/B or to the material prosecution witnesses viz. PW-2, PW-17, PW-22 and PW-13.
18.30. Moreover, the testimony of prosecution witnesses and defence witnesses shows that the deceased, his both parents (PW- 2 & PW-17) as well as his both friends (PW-22 & PW-13) were FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 113 of 121 known to the accused persons even prior to the incident, but accused A-2 (the caller of DD No. 41A) did not disclose the name of the person, who was running away with his daughter (meri ladki ko lekar bhag raha tha) or who was caught by him (jise pakad liya hai).
18.31. Furthermore, none of the accused produced any such person before SI Anand Prakash (PW-24) when he visited the spot, rather none of the accused was found present on the spot whereas, accused A-1 was subsequently caught by the public persons and handed over to the PCR Officials.
18.32. Apart from it, all the accused persons had initially pleaded their absence from the spot as well as their ignorance qua the murder of the deceased Ankit Saxena and it is only during the recording of their statements under Section 313 Cr. P.C, accused A-2 and accused A-3 had claimed their presence on the spot as well as witnessing of murder of deceased Ankit Saxena. This shows that the accused persons only for creating a false defence in their favour had deliberately made misleading call to the police vide DD No. 41A (Ex. PW19/B). The subsequent defence of the accused persons has already been found to be afterthought, motivated and guided and has already been discarded. In view of the same, there is no force in the aforesaid argument.
Therefore, the learned defence counsel has not been able to convince this Court that the testimonies of prosecution witnesses are not reliable and cannot be believed or cannot be acted upon or that the same are untrustworthy.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 114 of 121 18.33. Hence, in the light of the aforesaid findings, it can be safely said that the prosecution has proved beyond reasonable doubts that accused A-1, accused A-2 and accused A-3 in furtherance of their common intention had stilted the throat of deceased Ankit Saxena and thereby committed his murder.
MOTIVE BEHIND CRIME
19. Now the next vital question arises as to why all the accused persons had killed the deceased Ankit Saxena and what was their motive for committing his murder.
19.1. It is well settled that clear proof of motive lends additional support to find guilt of the accused. This necessitates the analysis of testimonies of PW-22, PW-13, PW-4, DW-1, DW-2 and DW-3. It is alleged that the deceased Ankit Saxena was having friendship/relationship with DW-3 Ms. Shehzadi which was not liked by her parents/family members, due to which the accused persons had killed the deceased. The deposition of PW-22, PW-13 and PW-4 shows that the deceased was having friendship with DW-3 Ms. Shehzadi. PW-13 has specifically deposed about the existence of love relationship between the deceased and DW-3. Similarly, PW-22 and PW-4 were also aware about the said relationship. Deceased Ankit Saxena during his beating by the accused persons, had informed PW-13 about the presence of DW-3 at Tagore Garden Metro Station and had requested PW-13 to go to the said Metro Station and accompany DW-3 to the police station. Accordingly, PW-13 left the spot and met with DW-3 at the said Metro Station and FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 115 of 121 also informed her about the silting of throat of the deceased Ankit Saxena. PW-13 subsequently along with PW-4 brought DW-3 to the police station.
19.2. The deposition of PW-22, PW-2, PW-17 and PW-13 also shows that they have testified about the exact language/words/phrases used by the accused persons at the time of committing the offence. Their deposition shows that the accused A-3 (Shehnaj Begum) was abusing and scuffling with Ankit Saxena by saying that "आज तद रर करम तमरम करनर हह " (aaj tera kaam tamam karna hai). Accused A-1 (Mohd. Salim) and JCL 'A' were saying to his son Ankit Saxena that "हमररद घर कह इजजत कद सरथ खखलवरड करनद कर नतहजर तत झद बतरतद हह " (hamare ghar ki ijjat ke sath khilwad karne ka natija tujhe batate hai). Accused A-2 (Akbar Ali) stated to his son Ankit Saxena that "मद रह बद टह शहजरदह कर पहछर तत एद सद नहहह छकडद गर" (meri beti Shehzadi ka pichcha tu aise nahi chhodega). In the meantime, accused A-3 shouted in loud voice that "तत महड कसम हह अललरह कह खक इसकक अरज नहहह छकडनर" (tumhe kasam hai allah kee ki isko aaj naho chhodna).
19.3. These words/phrases also shows the existence of the relationship between the deceased and DW-3, daughter of accused A-2 and accused A-3 and the same also shows that the said relationship is disliked by the accused persons and their family members including accused A-1.
19.4. Furthermore, DW-3 Ms. Shehzadi in her testimony has also admitted her friendship with the deceased Ankit. She FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 116 of 121 has also admitted her regular telephonic communication with the deceased. It is also deposed by her that the deceased Ankit Saxena responded to her cries for help when she was allegedly prevented by PW-22 and PW-13 from going to the beauty parlor of her mother/accused A-3. The family members of the deceased and the family members of DW-3 were residing in the same locality and all of them are known to each other.
Therefore, the deposition of DW-3 Ms. Shehzadi shows that deceased Ankit Saxena and DW-3 were friends and were having regular telephonic conversation with each other. On the date of incident also, according to DW-3 her friend Ankit (deceased herein) came to her rescue. This also reflects the depth of their friendship as deceased Ankit Saxena was trying to help DW-3 when the same was allegedly required by her.
19.5. However, the cross examination of DW-1, who is the real sister of accused A-3 (mother of DW-3) and with whom, DW-3 is staying since the date of incident, shows that the deceased Ankit was known to her even prior to the date of incident being the resident of the same locality wherein accused A-2 and A-3 were residing. Both these accused persons were also acquainted with the deceased being their neighbour. Accused A-2 & A-3 had shifted in B-block near her house approximately 06 months before their arrest in the present case. Accused A-2 & A- 3 shifted from A-block to B-block near her house due to the reasons of deceased Ankit Saxena. However, she pleaded her ignorance regarding said reasons.
Therefore, the testimony of DW-1 also shows that the accused A-2 and A-3 were the neighborers of the deceased FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 117 of 121 Ankit Saxena. DW-3 was also regularly in contact with the deceased Ankit Saxena. According to DW-1, accused A-2 & A-3 shifted from A-block to B-block only due to the reason of deceased Ankit Saxena.
19.6. Testimony of DW-1 coupled with the deposition of PW-22, PW-13, PW-4 as well as testimony of DW-3 further coupled with the phrases/words used by the accused persons at the time of committing the offence, proves not only the existence of friendship/relationship between the deceased Ankit Saxena and DW-3 Ms. Shehzadi but also proves that the said friendship/relationship was not liked by the accused persons (accused A-2 & A-3) and their family members including accused A-1.
19.7. The said friendship/relationship had also even forced/compelled the accused A-2 and accused A-3 to change their residence from A-block to B-block of the same area which is at a reasonable distance from the house of the deceased.
19.8. The testimony of PW-22 and PW-13 has been found by this Court to be cogent, reliable and trustworthy. The same is supported from the deposition of DW-3 wherein, she has admitted her friendship with the deceased Ankit Saxena and also from the deposition of DW-1, who has deposed that the accused A-2 & A-3 were forced to change their residence from A-block to B-block due to deceased Ankit Saxena. The cumulative effect of the deposition of PW-22, PW-13, DW-3 and DW-1 along with the words/phrases used by the accused FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 118 of 121 persons at the time of committing the offence, clearly explains/establishes the motive of the accused persons viz. Accused A-1, accused A-2 and accused A-3 for committing the murder of deceased Ankit Saxena.
Therefore, it can be said that the accused persons viz. accused A-2 and accused A-3 were unhappy with the friendship/relationship between their daughter DW-3 Ms. Shehzadi and deceased Ankit Saxena due to which, they have also changed their residence. However, the relationship of DW-3 and the deceased Ankit Saxena was not coming to an end due to which, on 01.02.2018, all the accused persons in furtherance of their common intention had silted the throat of the deceased Ankit Saxena with knife thereby committed his murder. Thus, the prosecution has also proved the motive of all the accused persons for committing the murder of deceased Ankit Saxena.
FINDINGS QUA OFFENCE UNDER SECTION 323 IPC
20. In the present case, the accused A-3 has also been charged for committing the offence punishable under Section 323 IPC.
20.1. It is claimed by the prosecution that accused A-3 had also inflicted injuries upon the body of PW-17 Smt. Kamlesh Saxena when PW-17 was trying to protect her son from the accused persons. The injuries on the body of PW-17 are substantiated from her MLC (Ex. PW7/B). The injuries on her body are also substantiated from DD No. 44A (Ex. PW23/B) which was received around 08.45 PM from GGS Hospital and gave the information that PW-17 was also injured. The factum of FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 119 of 121 causing injuries to her by accused A-3 is also substantiated from the deposition of PW-17 wherein, she has specifically deposed that she was assaulted by accused A-3 when she was trying to protect her son from the accused persons. The same is also substantiated from the deposition of PW-2 Sh. Yashpal Saxena, who has deposed that accused A-3 started scuffling with his wife (meri mrs ke sath bhid gai). He tried to rescue his wife from accused A-3, but she also pushed him. Similarly, PW-22 has also deposed about the same. Therefore, the allegation of assaulting PW-17 by the accused A-3 is substantiated not only from ocular testimonies of PW-17, PW-2 and PW-22 but also from the medical evidences of PW-7 (Ex. PW7/B) as well as from the documentary evidence i.e DD No. 44A (Ex. PW23/B).
20.2. Moreover, PW-17 herself is an injured and has deposed that she received the injuries from accused A-3. Therefore, the testimony of PW-17 being an injured witness, stands on a higher pedestal and cannot be discarded without existence of strong ground to disbelieve the same which in the present has been found to be completely missing. Reliance is placed upon Bhagirath Vs. State of M.P. (supra).
20.3. Hence, the prosecution has successfully proved that PW-17 was assaulted by the accused A-3 when she was trying to protect her son from the accused persons. Therefore, considering the aforesaid findings, it can be safely concluded that the prosecution has proved the charge of the offence punishable under Section 323 IPC against the accused A-3.
FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 120 of 121 CONCLUSION
21. In view of the aforesaid findings, it can be safely concluded that the prosecution has proved its case beyond reasonable doubts against all the accused persons viz. accused A- 1 Mohd. Salim, accused A-2 Akbar Ali and accused A-3 Shahnaj Begum that all the aforesaid accused persons in furtherance of their common intention had committed the murder of deceased Ankit Saxena. Therefore, all the accused persons viz. accused A- 1 Mohd. Salim, accused A-2 Akbar Ali and accused A-3 Shahnaj Begum stand convicted for the charge of the offence punishable under Section 302/34 IPC.
21.1. Further, the prosecution has also proved its case beyond reasonable doubts against the accused A-3 Shahnaj Begum that she assaulted PW-17 Smt. Kamlesh Saxena when PW-17 was trying to protect her son from the accused persons. Therefore, the accused A-3 Shahnaj Begum also stands convicted for the charge of the offence punishable under Section 323 IPC.
22. Let all the convicts be heard on the quantum of the sentence on the NDOH.
23. Copy of this judgment be supplied to all the convicts free of cost.
Announced in the open court on 23rd Day of December, 2023 (Sunil Kumar Sharma) Additional Sessions Judge-09 CERTIFICATE:
It is certified that this judgment contains 121 pages and each page has been signed by me.
(Sunil Kumar Sharma) Additional Sessions Judge-09 West:THC:Delhi:23.12.2023 FIR No. 23-2018, PS Khyala SC No : 311-2018 State Vs. Mohd. Salim & Ors. Page No. 121 of 121