Delhi District Court
State vs Sabir @ Raju on 26 July, 2017
IN THE COURT OF SH. SANJAY BANSAL:
SPECIAL JUDGE (NDPS) / ASJ / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Sessions Case No. 44993/15
CNR No. DLNE01-000543-2014
STATE Versus SABIR @ RAJU
S/o Raj Kumar
R/o D-66/4, Gali No. 4,
Vijay Colony, 3rd Pusta,
Usmanpur, Delhi
FIR No. : 429/2014
PS. : Bhajan Pura
U/s. : 302/34 IPC
Chargesheet Filed On : 14.10.2014
Date Of Allocation : 16.01.2015
Judgment Reserved On : 26.07.2017
Judgment Announced On : 26.07.2017
JUDGMENT:
1. Dead body of one Shivram @ Kalu (Kakoo) was brought to Shamshan Ghat, Kardam Puri on 04.04.2014 in the morning by the family members for cremation. However, the Pujari of the Shamshan Ghat noticed some injuries on the dead body and informed the police. Information was recorded vide DD No. 24B at PS Bhajanpura at about 9:55 am. The police arrived at the Shamshan Ghat. The police also reached at H.No. 760, Gamri Road, Ghonda. SHO PS Jafrabad was also present there who told the police officials of PS Bhajan Pura that one Shivram @ Kalu (Kakoo) was stabbed one day before at the said place. Crime Team was called at Shamshan Ghat. The Crime Team inspect the dead body. Stab injuries were found below stomach and on left thigh of the dead body. Body was sent for postmortem. Brother of SC No. 44993/15 State Vs. Sabir @ Raju Page 1 of 23 deceased Shivram @ Kalu namely Jagdish was also there. As no eyewitness was found, rukka was prepared on the DD entry itself. FIR No. 429/14 was registered at PS Bhajanpura u/s 302 IPC.
2. The spot of incident was also inspected by the Crime Team. After postmortem the dead body was handed over to the family members. Room of the deceased in H.No. 16, Bhagtan Mohalla, Ghonda was also inspected. Earth control and sample as well as clothes of deceased were seized. Exhibits were sent to FSL.
3. One Matloob who was complainant of FIR No. 426/14 u/s 392/397/34 IPC PS Bhajanpura was questioned and his statement u/s 161 CrPC was recorded. It was found that Matloob had also received injuries in the stabbing incident which caused death of Shivram. Dossier was shown to him and he identified one suspect. Matloob told that the said suspect alongwith his associates had attacked him and Shivram and they had also snatched money and mobile phone. The said suspect was Sabir @ Raju i.e. the accused facing trial.
4. It was found that Sabir had already been arrested in FIR No. 873/14 u/s 25/54/59 Arms Act PS Bhajanpura. It was also found that he had made a disclosure statement in that case that in the intervening night of 03- 04.04.2014, he alongwith his associates Raju @ Mota and two friends of Raju had looted two boys and caused them stab injuries. Production warrant of Sabir @ Raju was obtained and he was arrested in the present case. He made SC No. 44993/15 State Vs. Sabir @ Raju Page 2 of 23 disclosure statement. He got recovered one knife from his house and disclosed that the knife was used in commission of the offence. The knife was sent for examination to the concerned doctor and he gave subsequent opinion that injuries on the dead body were possible with this knife.
5. Search was made for co-accused Raju @ Mota but he could not be found. PM report was obtained. Injury was opined to be sufficient to cause death in the ordinary course of nature. Knife was also sent for examination at FSL. Human blood was detected on the knife but blood group could not be ascertained. After completion of investigation, chargesheet was filed u/s 302/34 IPC against accused Sabir @ Raju.
6. After compliance of section 207 CrPC, learned MM committed the case to Court of Sessions as offence u/s 302 IPC was exclusively triable by it.
7. Vide order dated 07.08.2015, my learned Predecessor framed charges for offences u/s 302/34 IPC against the accused. Accused pleaded not guilty and claimed trial.
8. In order to prove the charges, the prosecution examined as many as 17 witnesses.
9. Now evidence led by the parties may be noted.
MATERIAL / PUBLIC / EYE WITNESS(ES) SC No. 44993/15 State Vs. Sabir @ Raju Page 3 of 23
10. PW-6 is Jagdish. He is brother of the deceased. He deposed that in the year 2014, he was residing in a house in Mohalla Bhagtan, Gamri Road, Ghonda. The said accommodation was provided to him by his employer. He was doing the work of casting of bangles. He deposed that deceased lived with him. He further deposed that in the intervening night of 03/04.04.2014 at about 11.00 p.m., he was present in his room. One boy namely Rehbar came to him and informed that his brother was lying unconscious on Gamri Road. PW-6 also reached Gamri Road and found his brother in unconscious condition. PW-6 brought him to his room. He deposed that he sprinkled water on his face so as to make his brother conscious but it had no effect. PW-6 stated that he was under
the impression that his brother had consumed some intoxicating substance.
11. PW-6 further deposed that he had taken off clothes of his brother. He found that blood was flowing from a deep injury on the left thigh of his brother. PW-6 took him to Mohan Nursing Home in an auto-rickshaw but the said Nursing Home refused to admit his brother as the case was beyond their control. Thereafter, PW-6 took his brother to Shastri Park Hospital. He was medically examined by a doctor and declared 'dead'. PW-6 deposed that he brought dead body of his brother to his room. Thereafter he telephoned his uncle Sh. Munni Lal and informed him about death of his brother. Munni Lal reached within half hour. PW-6 deposed that he took dead body of his brother to Kardampuri Shamshan Ghat for cremation. However, the Panditji of the Shamshan Ghat stated that it was a case of murder.
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12. PW-6 deposed that at instance of Panditji, he made a call at 100 number from his mobile No. 9899007268. Within 5-6 minutes, police officials reached there. Police official took the dead body for post-mortem. He deposed that police officials made enquiry from him in the shamshan ghat. After enquiry, they took him to his room and inspected the same. He deposed that police officials lifted blood, earth control and blood stained earth from his room vide seizure memo Ex.PW6/A. Police officials also seized clothes of his brother vide seizure memo Ex.PW6/B. PW-6 also took them to the place where he found his brother in unconscious condition on Gamri Road.
13. On 05.04.2014 at about 11.00 a.m.-12.00 noon, police officials took PW-6 to GTB Hospital, however, postmortem was not conducted on 05.04.2014 as the hospital was not functioning on that day. On 06.04.2014 he identified dead body of his brother Shivram vide identification memo Ex.PW6/C. After post-mortem, he received the dead body vide memo Ex.PW5/B.
14. PW-6 identified blood stained earth control as seized from his room as Ex.P4. He also identified blood seized from his room as Ex.P6. He also identified another blood sample as seized from his room which is Ex.P8. He also identified Earth control as seized from his room as Ex.P10. He further identified clothes of his deceased brother Shivram as Ex.P11 (colly.) and Ex.P13 (colly.).
15. The defence did not cross-examine this witness.
16. PW-11 is Matloob. He is friend of deceased. He deposed that in SC No. 44993/15 State Vs. Sabir @ Raju Page 5 of 23 the intervening night of 03/04.04.2014, he alongwith deceased Shivram @ Kakoo left his factory for his house. He deposed that Shivram had to go to kiryana shop for purchasing some articles so he also left the factory with him. At that time, there was no electricity in the area.
17. He deposed that when he alongwith Shivram @ Kakoo reached at Gamri Road at about 11.30/11.45 p.m. At that time, three persons met them there. One of them caught hold of him and took him into a street. In the street, the said person put his hand into the pocket of his (PW-11's) trouser as he was having cash amount of Rs.500/- and a mobile phone. PW-11 deposed that when he resisted, the said person stabbed him with knife on his abdomen. Thereafter, the said person took out his mobile phone and cash amount of Rs.500/- and ran away from there. He deposed that after receiving the injury on his abdomen, his intestines came out. He called for his friend Shivram @ Kakoo but he did not respond. He deposed that at the time when he was taken to the street, the remaining two persons had caught hold of Shivram @ Kakoo. He deposed that he tied his shirt on the injury and went to his factory. In the factory, one Rehbar who was working with him met him and he told all the facts to Rehbar. He deposed that his brother Muzammil also came there and, thereafter, Rehbar and Muzammil brought him to Main Gamri Road. There his brother called at 100. PCR Van reached at the road and took him to Jag Pravesh Chandra Hospital. From the said hospital he was referred to GTB Hospital. He deposed that police made enquiries from him and recorded his statement. PW-11 stated that he could not identify any of the said three persons.
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18. As PW-11 was not supporting prosecution case, he was cross- examined by learned Addl. PP. He denied the suggestion that the remaining two persons caught hold of Shivram @ Kakoo and the person who had inflicted injury on his person also gave knife blows to Shivram @ Kakoo. He was confronted in this regard with his previous statement. He denied identifying any suspect from the dossier. One photograph Ex.PW11/A was shown to him and he identified his signature at point A on the said photograph but explained that police officials obtained his signatures at point A and he had not identified the said photograph.
19. PW-12 is Bimlesh Sharma. He is the Pujari/priest working at the Shamshan Ghat, Kabir Nagar, Delhi. He deposed that on 04.04.2014, about 10- 12 persons brought one dead body for its cremation at Shamshan Ghat, Kabir Nagar. When he was performing last rites of the dead body, he noticed that there was a wound on thigh of dead body and wound was filled with cotton. He deposed that thereafter, he made a call at 100 number about the same. Police officials reached there and took photographs of the dead body. Thereafter, the dead body was taken into possession by police. He came to know the name of the deceased as Shivram.
20. PW-20 is Muzammil. He is brother of PW-11. He deposed that in the intervening night of 03/04.04.2014, after finishing his work, he had reached his house at about 10.00 p.m. - 10.30 p.m. He deposed that his employee Rehbar and his brother Matloob remained in the factory. At about 12.00 midnight, Rehbar came to his house and informed him that someone had SC No. 44993/15 State Vs. Sabir @ Raju Page 7 of 23 stabbed knife to his brother Matloob. He reached his factory which was situated in the same mohalla at some distance from his house. He found his brother Matloob in injured condition who was having stab injury in his abdomen. He deposed about taking Matloob to GTB Hospital alongwith PCR officials. PW-20 did not know who had stabbed his brother.
21. There is no cross-examination of PW-20.
INVESTIGATION WITNESS(ES)
22. PW-1 is SI E.S. Yadav. He was In-charge, Mobile Crime Team, North-East District, Delhi. On 04.04.2014, at about 10.00 a.m., he received a call from Police Control Room (PCR) through wireless to reach Shamshan Ghat, Kabir Nagar, Delhi. He deposed about reaching there alongwith Photographer Ct. Ajeet and Finger Print Proficient HC Mahaveer. He deposed about inspecting the dead body of Shiv Ram @ Kakoo S/o Sanwal aged about 23 years. He noticed incised wound near right thigh and private part on the dead body. He deposed that Ct. Ajeet, Photographer took photographs of the dead body with different angles. He also deposed about visiting place in front of H. No. 750, Gamri Road. One pair of rubber slippers was found there. He inspected the scene of crime (SOC) and Ct. Ajeet took photographs of the SOC. He further deposed about visiting H. No. 760, Bhagtan Mohalla, Gamri, Delhi. There were blood stains on the earth. Blood stained pant, shirt, vest and underwear were lying there. Ct. Ajeet took photographs. PW-1 prepared SOC report Ex.PW1/A. SC No. 44993/15 State Vs. Sabir @ Raju Page 8 of 23
23. PW-2 is Ct. Ajeet Singh. He is the photographer of the Crime Team. He deposed about taking photographs. The photographs are Ex.PW2/A1 to Ex.PW2/A14 and their negatives are Ex.PW2/B1 to Ex.PW2/B14. Further photographs are Ex.PW2/C1 to C5 and their negatives are Ex.PW2/D1 to D5. Another set of photographs are Ex.PW2/E1 to E11 and negatives are Ex.PW2/F1 to F11.
24. PW-16 is ASI Raj Singh. He was on duty on the PCR Van. He deposed about visiting the Shamshan Ghat, Kabir Nagar after receipt of call.
25. PW-17 is HC Jai Prakash. PW-17 also visited the Shamshan Ghat, Kabir Nagar after receiving DD No. 11A.
26. PW-19 is Ct. Jagmohan. He deposed about recovery of knife at the instance of accused. He deposed that on 22.07.2014, he alongwith IO Insp. Subhash Chand, SI Shahid Khan and accused Sabir @ Raju reached at house of accused bearing No. D-66/4, 3 rd pusta, Usmanpur, Vijay Colony. He deposed that accused Sabir @ Raju took out a knife from scrap kept below staircase and produced it to the IO. He deposed that Insp. Subhash Chand prepared sketch of the knife which is Ex.PW19/A. The knife was converted into pulanda with seal of SD and seized vide memo Ex.PW19/B. He deposed about preparation of pointing out memo which is Ex.PW19/C at the instance of accused. PW-19 identified the accused and the knife. Knife is Ex.P3.
27. In cross-examination, it has come that no neighbour was called to SC No. 44993/15 State Vs. Sabir @ Raju Page 9 of 23 join the investigation.
28. PW-21 is Insp. Subhash Chander. He deposed about the investigation conducted by him. He was posted as SHO at PS Bhajanpura at the relevant time. On 04.04.2014, after receiving DD No. 34B, he alongwith SI Gopi Chand, HC Sukhbir and driver operator in Government Gypsy, reached opposite H. No. 760, Gamri Ghonda Road. He met Insp. Anil Kumar, SHO, PS Jafrabad alongwith staff at the spot. He deposed about reaching Shamshan Ghat, Kardampuri. He found dead body of deceased Shiv Ram @ Kakoo who was identified by his brother Jagdish Kumar. He deposed about noticing a deep stab injury and the track of the wound was towards navel portion. He deposed size of the wound was quite wide. He deposed about calling crime team there. He got the dead body shifted to the Mortuary, GTB Hospital. He reached at the place of incident i.e. in front of H. No. 760, Gamri Ghonda Road. He got the place of incident photographed from the crime team photographer. He did not find any eyewitness at the place of incident. He prepared tehrir Ex.PW21/A for registration of case under section 302 IPC. He sent tehrir to police station through HC Sukhbir at about 1.30 p.m.
29. He deposed about preparing site plan which is Ex.PW21/B. During investigation, it revealed that one case of stabbing by the accused was also registered in their police station on the same day vide FIR No. 426/2014 and investigation thereof was being conducted by SI Gopi Chand. He deposed about reaching H. No. 16, Bhagtan Mohalla, Ghonda, Delhi with Jagdish where the SC No. 44993/15 State Vs. Sabir @ Raju Page 10 of 23 deceased was residing with his brother Jagdish. PW-21 seized blood stained shirt, vest, underwear, grey pant and a sacred thread of the deceased from his room at the instance of Jagdish and converted them in a cloth parcel after keeping them in a polythene. He lifted two samples of the blood from the floor of the room, one sample of blood stained earth control and normal earth control and kept them in small plastic boxes separately and given them Mark S1 to S4. He converted each plastic box into a cloth parcel and sealed it with seal impression 'SD'. He deposed about seizing all the exhibits through different memos.
30. He on 06.04.2014, prepared inquest papers for conducting post- mortem on the dead body of the deceased. Request for post-mortem is Ex.PW21/C, death report is Ex.PW21/D, brief facts are Ex.PW21/E. After post- mortem, dead body was handed over to relatives of the deceased. PW-21 also collected viscera of the deceased from autopsy surgeon in a wooden box in sealed condition alongwith sample seal vide seizure memo already Ex.PW8/A.
31. PW-21 further deposed that during investigation, dossiers were shown to the witness Matloob and he identified dossier of accused Sabir @ Raju as assailant and signed the same at point A on coloured photograph Ex.PW11/A.
32. He deposed about obtaining copy of disclosure statement of accused Ex.PW21/F made in case FIR No.873/14 PS Bhajanpura. He arrested the accused vide memo Ex.PW21/G and took his personal search vide memo Ex.PW21/H. He also recorded disclosure statement of accused Sabir Ex.PW21/I. He recorded further disclosure statement Ex.PW21/J. He also SC No. 44993/15 State Vs. Sabir @ Raju Page 11 of 23 deposed about recovery of knife at the instance of the accused. He also gave application for subsequent opinion Ex.PW21/K. He seized sample seal of Dr. Neha Gupta vide seizure memo Ex.PW21/L. Subsequent opinion is Ex.PW7/B. He identified the accused and the case properties. In addition to Ex.P-1 and P-2, he identified blood stained earth control as Ex.P4; blood as seized from room of deceased as Ex.P6; blood Ex.P8; Earth control as Ex.P10; clothes of deceased as Ex.P11 (colly.); and blood stained pant as Ex.P13 (colly).
33. In cross-examination, it has come that he did not join any public person in recovery proceedings. He denied that accused did not make any disclosure statement.
34. PW-24 is SI (Retd.) Shahid Khan. He deposed about investigation in which he participated. He identified his signatures on various memos. He identified the accused and the case properties. He tried to corroborate other PWs. In cross-examination, he denied the suggestions of the defence.
35. PW-25 is HC Sabu. He is the IO of another case i.e. FIR No. 873/2014 under section 25 Arms Act PS Bhajanpura. He deposed about interrogating accused Sabir @ Raju and recording his disclosure statement. He proved copy of FIR No. 873/2014 as Ex.PW25/A and copies of documents regarding arrest in that case as Ex.PW25/B & 25/C.
36. PW-26 is Insp. B.K. Singh. He is the further IO. He was assigned further investigation of this case on 22.10.2014. He examined Pws namely SC No. 44993/15 State Vs. Sabir @ Raju Page 12 of 23 Muzzamil, Mohd. Rahbar, Mohd. Matloop, Jagdish, ASI Raj Singh, W/Ct. Rashmi, HC Jai Prakash and Ct. Ajender Singh u/s 161 CrPC. He also collected CDR of phone No. 9899007268 from the period dated 04.04.2014. He also collected CAF with ID proof and location chart. He also collected three PCR form dated 04.04.2014 Ex.PW15/A, Ex.PW15/B and Ex.PW26/A which was also placed on file. He concluded investigation and prepared supplementary chargesheet under Section 173.8 CrPC on 12.12.2014 which was sent to Court through proper channel. He also filed expert opinion dated 19.12.2014 through supplementary chargesheet.
37. PW-27 is SI Gopi Chand. He is the IO of FIR No. 426/14 PS Bhajanpura u/s 392/397/34 IPC i.e. case registered in respect of injured Matloob. He had prepared rukka on the statement of injured Matloob. After registration of the present case, he handed over copy of the documents of the case FIR No. 426/14 to the IO of this case.
MEDICAL / EXPERT WITNESSES
38. PW-7 is Dr. Neha Gupta. She conducted postmortem on the dead body of Shiv Ram @ Kakoo. The postmortem report is Ex.PW7/A. She opined that injury no. 4 was sufficient in the ordinary course of nature to cause death.
39. On 15.09.2014, she received an application from the IO for giving subsequent opinion about weapon of offence i.e. Knife alongwith sealed pulanda having seal impression of 'SD' in case FIR No. 429/14 PS Bhajanpura. She gave SC No. 44993/15 State Vs. Sabir @ Raju Page 13 of 23 subsequent report Ex.PW7/B. She also prepared sketch of the knife Ex.PW7/C. She opined that injury no. 4 was possible with the said knife. She identified the knife also.
40. PW-22 is Dr. Imrana. She had examined the knife in the lab. Blood was detected on the knife. Her report is Ex.PW22/A. She also conducted serological test on the blood found on the knife. The blood was of human origin. It did not give any reaction in respect of ABO grouping. The report is Ex.PW22/B.
41. PW-23 is Sh. Jitender Kumar. He had examined the viscera and gave report Ex.PW23/A. No poisons were detected.
FORMAL WITNESS(ES)
42. PW-3 is HC Dinesh Kumar. He was duty officer. He deposed about recording of DD No. 24B by W/HC Indu at about 9:55 am. Copy of the DD is Ex.PW3/A. At about 1.45 p.m., he received original rukka through HC Sukhbir sent by Insp. Subhash. At 1.50 p.m., he recorded kayami vide DD No. 16A. Copy of kayami DD No. 16A made from DD register is Ex.PW3/B. He got FIR of this case recorded through computer operator. Copy of the FIR No. 429/14 under section 302 IPC is Ex.PW3/C. He made endorsement on the rukka regarding registration of FIR. Endorsement is Ex.PW3/D. He handed over a copy of FIR and original rukka to HC Sukhbir for being given to IO Insp. Subhash on the spot. He handed over copies of FIR to Ct. Sumer for delivering them to Area MM, Addl. SC No. 44993/15 State Vs. Sabir @ Raju Page 14 of 23 CP, Joint CP and SDM.
43. PW-4 is Ct. Bijender. He deposed that on 26.06.2014, he took 6 parcels of this case in sealed condition vide RC No. 60/21/14 and 2 parcels in sealed condition vide RC No. 59/21/14 from MHC (M) HC Jitender. He deposited the said 8 sealed parcels in FSL, Rohini. He obtained acknowledgement in this regard from FSL, Rohini and handed it over to MHC (M).
44. PW-5 is Munni Lal. He had identified the dead body of the deceased as deceased was his nephew. His statement is Ex.PW5/A. He also received dead body after post mortem vide receipt Ex.PW5/B.
45. PW-8 is Ct. Suresh. On 21.04.2014, he brought one viscera box, sample seal and one envelope from GTB Hospital and handed it over to Insp. Subhash Chand vide seizure memo Ex.PW8/A.
46. PW-9 is W/SI Sonia. She was the CIPA Operator and had recorded the FIR in the computer.
47. PW-10 is Insp. Mahesh Kumar. He had prepared scaled site plan. He visited the site on 07.10.2014 and prepared rough notes. He prepared the scaled site plan on 13.10.2014. Scaled site plan is Ex.PW10/A.
48. PW-13 is Ct. Sumer Singh. He had delivered copies of the FIR to the senior officers and the Ilaka MM on 04.04.2014.
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49. PW-14 is Sh. Israr Babu. He is Alternate Nodal Officer, Vodafone Mobile Service Ltd., C-45, Okhla Phase-II, New Delhi. He produced Call Detail Record (CDR) and Customer Application Form (CAF) in respect of Vodafone No. 9899007268. CDR is for the period from 01.04.2014 to 05.04.2014. Copy of CAF alongwith a copy of election I-card submitted as identity proof by the subscriber is Ex.PW14/A. As per PW-14, Vodafone No. 9899007268 was subscribed to by one Jamshed S/o Sh. Alauddin R/o H. No. 370, Gali No. 18, Jafrabad, Delhi. He also produced certificate under section 65B of the Indian Evidence Act. CDR is Ex.PW14/D. Certificate under section 65B of the Indian Evidence Act is Ex.PW14/C. Cell ID / Tower Location chart is Ex.PW14/D.
50. PW-15 is W/Ct. Rashmi. She was posted in Central Police Control Room, PHQ, New Delhi on 04.04.2014. She deposed that she was on duty at Channel No. 103 in CPCR, PHQ, New Delhi. On 04.04.2014 at 00:46 hrs., she received a call from mobile No. 8130402756 that 'Gonda Chowk, Gamri Road Bikam Sharma ke ghar ke paas chaku maar diya hai'. She filled the said information in PCR form Ex.PW15/A in her handwriting as computer system was under updation. She dispatched the said PCR call to North East Control Room.
51. On the same day at about 07.01 a.m. while she was working at Channel No. 131, she received another PCR Call from mobile No. 9899007262 that 'Kabir Nagar Shamshan Ghat me near Vijay Park PS Welcome, Shamshan Ghat wala bol raha hai ki 23 saal ka ladka hai jisko chaku laga hai, Shamshan Ghat me jalane ke liye laye hai, police chahiye jaldi'. She filled the said SC No. 44993/15 State Vs. Sabir @ Raju Page 16 of 23 information in PCR Form Ex.PW15/B. She dispatched the said PCR Call to Control Room, North-East District.
52. PW-18 is Ct. Ajendra Singh. He deposed that on 09.10.2014, MHC (M) handed over one pulanda and sample seal of 'NG' to him for depositing it in the FSL, Rohini vide RC No. 92/21/14. He deposited the same in the FSL, Rohini and obtained receipt. He handed over receipt to MHC (M) in police station. Copy of acknowledgement is Ex.PW18/A. STATEMENT OF ACCUSED
53. Statement of accused u/s 313 CrPC was recorded. He stated that he was innocent and falsely implicated in the case as he was BC of the area. He denied committing the offence. He did not lead any evidence in defence. SUBMISSIONS OF THE PARTIES
54. I have heard Sh. R.K. Tanwar, Ld. Addl. PP for the State and Sh. K.N. Sharma, Ld. Legal Aid Counsel for the accused.
55. Learned Addl. PP argued that the prosecution has brought on record enough material to prove the charge. He pointed out that weapon of offence i.e. knife has been recovered at instance of the accused. He also emphasized that human blood was found on the said knife as is reflected from the report of serologist.
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56. On the other hand, learned defence counsel submitted that the recovery of the knife has not been proved satisfactorily. He also submitted that the knife cannot be connected with the offence as no DNA examination was got conducted by the investigating agency. He also contended that the evidence of PWs particularly PW-6 and PW-11 does not inspire confidence. He referred to the said testimonies and pointed out several infirmities in the same. He prayed for acquittal.
FINDINGS
57. From the contentions raised by learned counsels, the following points for determination in the present case:
i). Whether accused had attacked the deceased and injured PW-
11?
ii). Whether recovery of knife is of any relevance?
58. As can be seen, the only eyewitness was PW-11. However, he has not supported the prosecution case. He was even cross-examined by learned Addl. PP but nothing came out in its support regarding the identity of the accused. Evidence of PW-11 is not of much use.
59. Now, essentially, the prosecution case is based on circumstantial evidence.
60. The law regarding cases based on circumstantial evidence is well SC No. 44993/15 State Vs. Sabir @ Raju Page 18 of 23 settled. The famous case of Sharad Birdhi Chand Sarda v. State of Maharashtra, AIR 1984 SC 1622 is the guiding judgment. The five golden principles reiterated in the said judgment may be noted as below:
a). the circumstances from which the conclusion of guilt is to be drawn should be fully established;
b). the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
c). the circumstances should be of a conclusive nature and tendency;
d). they should exclude every possible hypothesis except the one to be proved; and
e). there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
61. Postmortem report of deceased Shivram notices the following injuries on the dead body:
i). Reddish abrasion 0.5 x 0.5 cm present over left side forehead, 1 cm above eyebrow and 3 cm from midline;
ii). Reddish abrasion 2 x 1 cm present horizontally over left side forehead in midline, 1 cm above eyebrow;
iii). Reddish abrasion 1 x 1 cm present over left side face, 3 cm from midline just below eye;
iv). Incised stab wound 5 x 0.2 cm x 4 cm present vertically over left inguinal region, 6 cm from midline and just above inguinal ligament with lower angle sharp. The direction of the wound goes backward, downward and medially. The track of the wound goes cutting the skin subcutaneous tissue, muscles of the abdomen and femoral vessels alongwith superficial inguinal vessels and puncturing the peritoneal cavity with extravasation SC No. 44993/15 State Vs. Sabir @ Raju Page 19 of 23 of blood present through out the track. About 1 litre of blood and blood clots present in the abdominal cavity.
62. Cause of death has been opined as "Haemorrhagic shock as a result of ante-mortem injury to large blood vessels of the inguinal region produced by sharp edged weapon". Injury No. 4 has also been opined as sufficient to cause death in ordinary course of nature.
63. Thus, death of Shivram has been proved to be homicidal. The prosecution was now required to establish the identity of the killer.
64. Brother of the deceased namely Jagdish/PW-6 is the first witness who had seen the deceased after the incident. He does not know who had caused injuries to his brother deceased Shivram @ Kakoo. Moreover, perusal of his evidence does not inspire any confidence. His conduct is unnatural. He says that he saw his brother lying unconscious on the road and took him to his room. He says that he sprinkled water on his face but thought that he had consumed some intoxicating substance. He also says that when he took off his clothes he found that blood was flowing from his left thigh. This part of deposition creates doubt about his testimony. It is not understood as to why PW-6 could not notice blood flowing from the injury when he was on the road. If blood was flowing in the house, it must in all probability have flown on the road also. This is unbelievable version of PW-6. It cannot be believed that PW-6 did not notice that there was blood on the thigh of the deceased when he saw him on the road.
65. Not only this, further conduct of PW-6 raises eyebrows. He took SC No. 44993/15 State Vs. Sabir @ Raju Page 20 of 23 the deceased to Mohan Nursing Home. But as he says that they refused to admit him, then he took him to Shastri Park Hospital where he was declared brought dead. From that hospital he brought the dead body to his room. Thus even after knowing that his brother had died, he brought him to his room. He did not call the police at all. Rather, he telephoned his uncle Munni Lal and thereafter took the dead body to Shamshan Ghat for cremation. This conduct of PW-6 is highly suspicious. It was the Pandit of Shamshan Ghat only who informed the police.
66. Then there is PW-11 who says that he was with the deceased at the relevant time. As already noticed, he was hostile. Moreover, his conduct is also unnatural. He says that three persons came there. One of them caught hold of him and took him to a street. He was robbed there. When he resisted, he was stabbed also with a knife in his abdomen. He says that after receiving injury in the abdomen, his intestines came out and he called Shivram (deceased) but he did not respond. He says that after tying shirt on his injury, he reached his factory and met one Rehbar who was also working there. He told the fact to Rehbar. His brother Muzammil also came there. Rehbar and Muzammil brought him to the spot again. Call was made to 100 number by his brother. PCR came there. This conduct of PW-11 is also quite suspicious. It is unthinkable that when he received stab injury, and his intestines came out, he would tie shirt on his injury and go to the factory and then came back to the spot. This testimony is highly unbelievable. Nothing has come out in his evidence connecting the accused with the offence.
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67. There is evidence of PW-20 Muzammil also. He had not seen the incident. Therefore, his evidence is not relevant.
68. Prosecution has heavily relied upon fact of recovery of knife at the instance of the accused. Learned Addl. PP strongly emphasized that the said knife has been opined to be the weapon of offence. Blood was also detected on the knife. Thus, according to him, this piece of evidence connects accused with the offence.
69. Learned Addl. PP had submitted that the subsequent opinion was given by the concerned doctor and the knife has been opined as possible weapon of offence. However, learned Defence Counsel submitted that there is no evidence connecting the weapon with the crime.
70. As per report Ex.PW22/B, blood was found on the knife and it was human blood. However, blood group could not be raised. There is no DNA examination which could satisfy that the blood on the knife was of the deceased. It is a serious lacuna in the case of the prosecution. In todays times when advanced technologies are available with the forensic labs such as DNA testing etc., it is not understood as to why the investigating agency did not consider it necessary to avail such facilities. The DNA examination would have specified as to whether the blood found on the knife was of deceased or not. Omission on the part of investigating agency to get the said test done will only lead to drawing of adverse inference against it. It cannot be said with certainty that the knife was having blood of the deceased. Therefore, the recovery of knife is not SC No. 44993/15 State Vs. Sabir @ Raju Page 22 of 23 incriminating circumstance against the accused. It does not connect the accused with the crime.
71. Prosecution has failed to prove all the circumstances to prove the guilt of the accused. The chain of circumstances lies broken. There is grave doubt about prosecution case against the accused.
72. Prosecution fails to prove the charge against the accused. Therefore, accused is hereby acquitted of the charge framed against him in this case. He is in judicial custody. He be released immediately if not wanted in any other case.
73. Accused is required to furnish bail bonds as per Sec. 437-A CrPC. He should furnish bail bonds in sum of Rs.10,000/- with one surety in the like amount within five working days.
74. File be consigned to Record Room.
Announced in open court
on 26th day of July, 2017. Digitally signed by
SANJAY SANJAY BANSAL
Location: Karkardooma
Court
BANSAL Date: 2017.08.03
11:28:39 +0530
(Sanjay Bansal)
Special Judge (NDPS)/ASJ/
NE/KKD Courts/Delhi.
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