Delhi District Court
State vs 1. Azim Khan on 11 February, 2022
IN THE COURT OF MS. RAVINDER BEDI: ASJ02: SHAHDARA DISTRICT: KARKARDOOMA COURTS, DELHI. UID No. 358/2016 FIR No. 1472/2014 P.S. Seemapuri Under Sec. 302/307/34 IPC State Versus 1. Azim Khan S/o Mohd. Iliyas R/o H. No. 571 Sunder Nagri, Delhi 2. Ashok @ Sonu S/o Chander Prakash R/o H. No. J 92/93, E Block Sunder Nagri & L Block, Ashram, Sunder Nagri, Delhi Date of Committal to Sessions Court : 23.07.2015 Date on which Judgment reserved : 04.02.2022 Date of pronouncement of judgment : 11.02.2022 Accused Azim Khan represented by : Counsel Mr. A.A. Khan Accused Ashok represented by : Counsel Mr. Gaurav Vashishth State represented by : Addl. PP Mr.Rakesh Kumar ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.1/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:54:34 +0530 JUDGMENT
SUMMARY OF FACTS
1. Present is a trial of the murder of Shailesh Satnarayan and an attempt to murder Mukesh Sharma in the night of 18.10.2014 at 9.20 pm in a single incident and both Ashok @ Sonu Khan and Azim Khan, who are accused of these crimes are prosecuted in the case. The determination of the fact whether deceased Shailesh @ Satnarayan was murdered and murder of Mukesh Sharma was attempted by accused persons as alleged by the Prosecution is the subject of present Judgment.
2. Prosecution case arises from an incident of 18.10.2014 when on receipt of DD No.86B on 18.10.2014, ASI Chand Prakash along with Ct. Kaleem Beg visited the site of occurrence. They found the injured persons were already taken through PCR Van to GTB hospital. Leaving Ct. Kaleem at the spot, ASI Chand Prakash reached GTB Hospital and collected the MLC of Shailesh, which opined that the patient was 'unfit for statement'. ASI Chand Prakash also collected MLC of injured Mukesh Sharma, wherein the injuries were opined as 'blunt' and the patient was in a 'fit condition for statement'. • The statement of injured Mukesh Sharma was recorded, who stated that at 9.20 pm of 18.10.2014, he was sitting at his shop along with his brother Suresh and one Shailesh an ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.2/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:54:45 +0530 employee, working at neighbour's shop. Suddenly 3 boys, one of whom was carrying country made pistol in his hands and the other two were having knives barged into his shop and one of them gave multiple slaps to Shailesh and other offender hit him with knife blows. The Complainant tried to intervene and save Shailesh on which one of the boys who was slapping him hit the complainant also with knife blows and all of them fled away. Complainant stated that he could identify all the three offenders.
• An FIR was registered at PS Seemapuri. The crime team reached and inspected the spot which was photographed. The earth control and blood containing concrete was seized from the spot. At around 2.15 am of 19.10.2014, injured Shailesh succumbed to his injuries. Investigation was deputed to Inspector Sanjay Kumar and section 302 IPC was added to the offences.
• Postmortem of dead body was conducted and body was handed over to the parents of deceased. The Postmortem Report No.1443/14 opined the cause of death as "hemorrhagic shock as a result of antemortem injury to abdominal organs & vessels produced by sharp single edged weapon and Injury no.1 being sufficient to cause death in ordinary course of nature". The CCTV footage from the spot was collected and the statements of eye witnesses were recorded.
• On secret information, accused Azim Khan was arrested and ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.3/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:54:56 +0530 his disclosure was obtained in which he disclosed that he alongwith his accomplices Irshad @ Ballu and Ashok @ Sonu had committed the offences. The accused was identified by the injured in the Test Identification Proceedings. Coaccused was tried to be traced out but was found to be absconding. The motorcycle used in the commission of crime was recovered from Azim Khan. • The proceedings under section 82/83 Cr.P.C. against co accused Irshad @ Ballu and Ashok @ Sonu were initiated and on 18.10.2015 Supplementary Challan was filed against coaccused Ashok @ Sonu. The contents of supplementary challan would indicate that 3 rd accused namely Irshad @ Ballu was found to be juvenile and the proceedings qua him were separated to be continued before Ld. JJB, Delhi Gate. Since, both accused Irshad @ Ballu and Ashok @ Sonu were absconding, they were declared as proclaimed offender on 23.07.2015 and were arrested only on 03.09.2015. Accused Ashok @ Sonu was correctly identified by the witness in Test Identification Proceedings. Weapon of offence however, could not be recovered. The chargesheet was filed against both accused before concerned MM on 18.04.2015 and the same was committed to the Court of Sessions vide Order dated 23.07.2015 and assigned to the Ld. Predecessor Court on 28.07.2015.
3. The offence under section 302 IPC being exclusively ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.4/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:55:04 +0530 triable by the Court of Sessions; Ld. MM committed the instant case to this Court for trial in accordance with law. After hearing arguments on charges and finding prima facie material on record, my Ld. Predecessor vide Order dated 02.11.2015 framed charges under section 302/307/34 IPC against accused Azim Khan and vide Order dated 05.01.2016 framed charges under Section 302/ 307/ 34 IPC & 174A IPC against accused Ashok @ Sonu, to which they pleaded not guilty and claimed trial.
4. The prosecution marshalled 35 witnesses in support of its case. The details of these witnesses are as under: PW1 Ramesh Prasad is the purchaser of motorcycle Pulsar. He proved seizure memo Ex.PW1/A in respect of the motorcycle seized by police. PW2 is Ram Singh Ram, who is the father of deceased Shailesh @ Satnarayan. PW2 identified the body of his son at GTB Mortuary on 20.10.2014 and proved the identification memo as Ex.PW2/A. PW3 is Suresh, brother of injured Mukesh Sharma. He vividly described the incident dated 18.10.2014 in his testimony and identified the accused persons.
PW4 is injured Mukesh Sharma who in his testimony narrated the entire incident dated 18.10.2004 at about 9.20 pm and proved his statement as Ex.PW4/A bearing his signatures at point A, the judicial TIP Report of both accused persons, whom he correctly identified as Ex.PW4/B and Ex.PW4/C PW5 is Dr. Abhilash Singh, who was posted as Senior ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.5/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 16:55:14 +0530 Resident in Department, Surgery at GTB Hospital and examined the MLC and Surgical Report of injured Mukesh Sharma and proved the MLC as Ex.PW5/A opining the nature of injuries as 'grievous'.
PW6 is Dr.Priyal Jain, Senior Demonstrator, Department of Forensics, GTB Hospital, who conducted postmortem on the body of deceased and prepared his detailed Report as Ex.PW6/A bearing his signatures at point A. PW7 is Ct. Mukesh, who being a Photographer in Mobile Crime Team, North East District and as directed SI ES Yadav had reached the spot and took photographs of scene from various angles and developed negatives and proved the negatives as Ex.PW7/A1 to Ex.PW7/A10 and the photographs as Ex.PW7/B1 to Ex.PW7/B10.
PW8 is ASI Satish Saini, who at relevant time was working as Wireless Operator in Communications Division at Police Headquarters and on receipt of information from PCR van, North East Zone regarding the incident of knife stabbing near Apsara Border, Petrol Pump, he passed over the said information to District Control Room and Local Police for taking necessary action. He proved the attested PCR form as Ex.PW8/A. PW9 is ASI Sonu Kaushik, who while working as Asstt. Draughtsman at Crime Branch, PHQ had taken measurements and prepared his rough notes and based upon the said notes, prepared a scaled site plan, which he proved the same as Ex.PW9/A. ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.6/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:55:22 +0530 PW10 is ASI Yogesh, who was Incharge, PCR Van at that time and at about 9.15 pm, was informed by a boy aged 12 - 13 years that 2 - 3 boys had assaulted someone near Shopping Complex Petrol Pump opposite Dilshad Garden, Metro Station. On receipt of said information, he rushed to the spot along with his staff in PCR Van, he deposed that 2 boys were running on white colour scooty towards hospital and on seeing the PCR van, they came to us. PW10 stopped the van and saw one of the 2 two boys in scooty was in injured condition with blood oozing out and on formal inquiry the injured told him that he was assaulted by 2 - 3 boys. PW10 immediately took the injured to GTB hospital for medical examination.
PW11 is HC Kaleem Beg, who deposed that on the intervening night of 18/19.10.2014, he was on emergency duty with ASI Chander Prakash and at about 9.30, was entrusted a call by duty officer and then he along with ASI Chander Prakash reached the plot no.467 Oberoi Compound, GT Road, Dilshad Garden, where they found that injured was removed to hospital and blood was lying scattered in front of Sharma General Store. PW11 was left on the spot by ASI Chander Prakash for safeguarding the same and after about an hour, ASI Chander Prakash returned the spot, prepared rukka at the spot and gave same to PW11 with direction to get register an FIR. The original rukka alongwith copy of FIR was handed over again after registration of FIR. PW 11 deposed that IO lifted blood stained control and earth control from spot, which were sealed and ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.7/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:55:32 +0530 converted into a parcel with seal of AK and were taken into possession vide memo Ex.PW11/A bearing his signatures at point A. The Three sealed parcels i.e. two containing clothes of deceased and third one containing cloths of injured Mukesh Sharma were also sealed and sized vide seizure memo Ex.PW11/B bearing his signatures at point A. PW12 Ct. Mahesh Yadav was posted in Casualty Ward of GTB Hospital and deposed that two injured Mukesh Sharma and Shailesh were brought by PCR Van and were medically examined. He deposed that injured Shailesh had expired and he informed the duty officer at PS Seemapuri about the demise of Shailesh by DD No.8A.
PW13 is Dr. Sahnawaj Wasir Bhatt, Senior Resident, Department of Surgery, GTB Hospital. PW13 has proved the Death Summary prepared by Dr. Nishant exhibited as Ex.PW13/A bearing his signatures at point A and deposed that he was acquainted with Dr. Nishant having posted in Department of Surgery and worked with him in the course of his official duties.
PW14 is Imran, who stated that he was in the business of Handicrafts and Wasim, son of Mohd. Ilyas was his nephew and his younger brother was accused Azim. He stated that on 18.10.2014, he purchased a black colour motorcycle make Pulsar (whose registration number he did not remember) through one Javed from Kamal Ahmad for a sum of Rs.8,800/. He deposed that the said motorcycle was returned by him to Javed on 19.10.2014 as it was not in working condition.
____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.8/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:55:43 +0530 PW15 is Mohd. Javed, who deposed that he had a mechanic shop for repair of motorcycle/scooter opposite Moti Mehal Restaurant, Dariyaganj Delhi. He deposed that PW14 Imran was residing in vicinity of area and in the year 2013 14, he had asked him to provide an old motorcycle. PW15 sold his motorcycle (make Pulsar) to Imran for a sum of Rs.7800/ out of which he paid a sum of Rs.6,000/ in cash and remaining amount of Rs.1,800/ was due towards him. PW15 deposed that he did not make the balance payment and after a period of 3 - 4 months, Imran resold the said motorcycle to him against Rs.5500/.
PW16 is Chiddan, who stated that he was a Watchman/Security guard for the past 7 - 8 years at the shop of Sudhir, behind Petrol Pump and stated that his duty hours were from 8.00 pm till 8.00 am. He stated that he was on duty at the corner of GT Road and few shopkeepers had closed their shops while some were still open. He came to know about murder of one Shailesh. The testimony of this witness shows that he did not support the Prosecution story as he was cross examined by Ld.Addl. PP after he resiled from his statement. PW17 is Rafique who was a tailor by profession. He also did not support the version of Prosecution.
PW18 is ASI Sahaj Ram, who was posted on police van along with Ct. Deepak and while patrolling, as they reached near Toll Plaza of flyover of Apsara Border, near red light in front of Honda Showroom at about 9.15 pm, 2 persons came on motorcycle and informed about the incident of stabbing and ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.9/40 Digitally signed by RAVINDER BEDI RAVINDER Location:
Karkardooma Courts, BEDI Delhi
Date: 2022.02.11
16:55:53 +0530
firing. This witness deposed on the lines of statement given by Ct. Deepak.
PW19 is Shubham Sharma, who at the time of incident was on his mobile shop adjoining 'Sharma General Store'. He narrated the incident of 18.10.2014 when he was present at his shop and described about sequence of events and stated that he took the injured to GTB Hospital .
PW20 is HC Satyapal Singh, who as directed by IO reached the house of Ramesh Prasad in search of black colour motorcycle make Pulsar. The said motorcycle was taken into possession being used in commission of crime vide seizure memo already Ex.PW1/A, bearing his signatures at point B. PW21 is Inspector E.S.Yadav, posted at Mobile Crime Team, North East and on receipt of DD No.86 B, he along with Ct. Mukesh and ASI Madan Lal reached the spot i.e. Oberoi Complex, Plot no. 467, Shop No.2, G.T.Road, in front of Dilshad Garden Metro Station. PW21 inspected the spot and prepared his report exhibited as Ex.PW21/A. PW22 is ASI Mahender Singh (Retired), who was posted as duty officer from 4.00 pm to 12.00 am midnight and on receipt of rukka from Ct. Kaleem Beg prepared and sent by ASI Chander Prakash, he got registered present FIR exhibited as Ex.PW22/A bearing his signatures at point A and his endorsement on rukka as Ex.PW22/B. PW23 HC Yashpal Singh was working as duty officer from 4.00 pm till 12.00 am midnight at PS Seemapuri and was telephonically informed by duty constable from GTB ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.10/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:56:03 +0530 hospital regarding admission of injured Shailesh, who was admitted in hospital vide MLC No.A4979/14 had expired and a DD entry no.8A was lodged in respect of same which is proved as Ex.PW23/A. PW24 is ASI Meva Ram - DD writer, who was informed by HC Yogesh regarding the incident of stabbing by few persons and lodged a DD entry No.86B which is exhibited as Ex.PW24/A. PW25 is HC Sudesh, who alongwith IO/Inspector Sanjay Kumar had arrested the accused Azim Khan vide arrest memo Ex.PW25/A after his personal search memo Ex.PW25/B was prepared. He deposed that IO had obtained the disclosure statement of Azim Khan vide memo Ex.PW25/C bearing his signatures at point A. He stated that accused was brought in muffled face and had pointed out the place of incident and accordingly pointing out memo Ex.PW25/D was prepared at his instance bearing signature of PW25 at point A. PW25 deposed that while participating in the investigation with IO/Inspector Joginder Prashad, on 14.04.2015, they both reached Hero Honda Showroom, R.K. Automobiles at plot no.2, where IO served Notice under section 91 Cr.P.C. upon the owner of showroom for handing over the hard disc relating to CCTV footage. The said Hard Disc was seized and sealed with the seal of JP and a seizure memo Ex.PW25/E was prepared. The statement of Technical Expert Harvinder under section 161 Cr.P.C. was recorded by IO. PW25 further stated that on 05.04.2015, while he was present ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.11/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 16:56:13 +0530 with IO, IO played the aforesaid CD on laptop in respect of incident dated 18.10.2014 relating to the period from 9.00 pm to 9.25 pm. It showed the accused persons on their motorcycles. The said CD was sealed with seal of JP and seized vide seizure memo Ex.PW25/F. PW26 is Dr. Sharad Verma, OSD to MD GTB Hospital. He deposed that while working as CMO on the relevant time, Dr. Sajjad, JR was working at Casualty Ward and had examined injured Mukesh Sharma while MLC bearing No.A4978/14 which bears signatures of Dr. Sajjad. PW26 also proved the MLC of one Shailesh examined vide MLC No.A4979/14 by Dr. Sujeet, working as JR under his supervision and proved the same as Ex.PW26/A. PW26 identified signatures of Dr. Sajjad and Dr. Sujeet as they had worked under his supervision and he had seen both of them writing and signing during course of their normal duties.
PW27 is S. Harvinder Singh, who was running a business of CCTV Cameras in the name and style of 3rd Eye Vision and had installed CCTV camera at R.K. Automobiles, Plot No.102, GT Road, Shahdara. This witness handed over Hard Drive from DVR to the police which was sealed and taken into possession vide memo Ex.PW25/E bearing his signatures at point B. PW27 also issued a Certificate pertaining to DVR under section 65B of Indian Evidence Act, which is proved as Ex.PW27/A bearing his signatures at point A. PW28 is V. Lakshmi Narsimhan, Asstt. Director, FSL, ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.12/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:56:24 +0530 Delhi, she deposed that on 02.09.2015, she received two sealed parcels along with sample seal through the office of FSL marked to her for examination. She stated that seal was found intact and tallied with sample seal and on opening, she found parcel no.1 contained Ex.1 i.e. Hard Disc, make 'WD' having 1 TB capacity and parcel no.2 contained Ex.2 i.e. one CDR make of Mozer beer containing one video MURDERER.avi. She proved her detailed Report as Ex.PW28/A. PW29 is SI Chand Prakash. On receipt of DD No.56 B at about 9.30 pm, he reached the shop no.2 Oberoi Compound and found the injured had already been taken to hospital leaving Ct.Kaleem Beg to guard the spot, he went to GTB hospital where he found the admission of both injured. One of them named Shailesh was found unfit for statement. PW29 recorded the statement of injured Mukesh Sharma at GTB hospital, prepared Tehrir and sent the same through Ct.Kaleem Beg. PW29 is also signatory to the seizure memo of blood stained earth control and concrete seized vide Ex.PW11/A. PW30 is SI Prempal Singh, who prepared rough site plan Ex.PW30/A at the instance of ASI Chand and eye witness Suresh and also recorded the statement of Suresh. PW30 was handed over sealed pullandas and seizure memos by ASI Chand and whose statement was recorded by PW30.
PW31 is Inspector Sanjay Kumar, who was assigned the investigation after receipt of DD No.8A regarding death of injured Shailesh and he along with Ct. reached GTB hospital.
____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.13/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:56:33 +0530 PW31 is a witness to the handing over of dead body to relatives collectively exhibited as Ex.PW31/A and the seizure memo Ex.PW31/B. This witness arrested accused Azim Khan vide arrest memo Ex.PW25/A after his personal search was conducted vide personal search memo Ex.PW25/B. PW31 also prepared pointing out memo Ex.PW25/D after pointing out by accused Azim, who led them to place of occurrence. PW31 further proved an application for conducting TIP of accused Ex.PW31/C. He recorded disclosure statement of accused Azim Ex.PW31/E and prepared scaled site plan already Ex.PW9/A and obtained MLC of injured Mukesh from GTB hospital.
PW32 is Ct. Deepak Kumar who along with HC Sahaj Ram had reached the spot and then reached the hospital. PW 33 is Ct. Dheeraj, who participated in the investigation of matter along with IO/Inspector Sanjay Kumar. PW34 is Inspector Joginder Prasad, who was handed over further investigation of the matter and during investigation, he seized the original CD vide seizure memo already Ex.PW25/F bearing his signature at point F. This witness visited the showroom on 14.04.2015 and gave Notice to owner under Section 91 Cr.P.C. for requisitioning Hard Disc. The person named Harvinder Singh - PW27, who was maintaining CCTV cameras installed in that showroom detached the Hard Disc from the DVR placed at R.K. Automobiles and handed over the same to PW34, which was seized vie seizure memo already Ex.PW25/E. PW34 filed the chargesheet against accused Azim Khan and also obtained ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.14/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 16:56:43 +0530 proclamation under section 82 Cr.P.C. against coaccused Ashok @ Sonu and Irshad @ Ballu. This witness formally arrested accused Ashok @ Sonu on 03.09.2015, prepared his personal search memo Ex.PW34/B after getting his disclosure statement Ex.PW34/C. PW34 is also a witness to the application for TIP proceedings of accused Ashok @ Sonu as Ex.PW34/D. PW34 moved an application Ex.PW34/E for grant of Police Custody qua accused Ashok @ Sonu and the application was allowed but despite police remand, the weapon of offence could not be recovered. PW35 is ASI Jitender Prakash, who is a witness to the proclamation proceedings in respect of accused Ashok @ Sonu and has proved his Report Ex.PW35/A besides the statement of Smt. Sukhpali recorded and proved as Ex.PW35/B. STATEMENT OF ACCUSED PERSONS UNDER SECTION 313 CR.P.C
5. Statement of accused Azim Khan and Ashok @ Sonu was recorded under section 313 of the Code, wherein they both denied entire incriminating material surfaced in evidence against them. They pleaded their innocence and further pleaded their false implication. Accused Azim Khan stated that he was implicated in present case and all witnesses were interested ones. However, accused chose to lead evidence in defence and examined Mukesh Yadav as DW1. Accused Ashok @ Sonu stated that he was innocent and was residing at Karnal, Haryana ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.15/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 17:00:13 +0530 at the time of incident. He was informed by his grandmother that a police official was visiting at her house in Delhi (since in the year 2011, accused was residing with his grandmother at Delhi). As to the Proclamation Notice issued against him vide which he was declared as Proclaimed offender, accused stated that he himself had surrendered and was not aware of the proclamation proceedings.
DEFENCE EVIDENCE
6. Accused Azim Khan in his defence presented Mukesh Yadav as DW1. DW1 stated that accused Azim Khan, who was his driver from the year 2008 uptill 2014 and was residing with him. DW1 stated that accused would sleep at his house during night hours. DW1 stated that he was running a factory at Javali, District Ghaziabad, U.P and on 16.10.2014, he along with accused had gone to Vadodara, Gujarat with a truck loaded with copper powder and the truck was driver by some other driver. He stated that they returned to Delhi on 21.10.2014 and came to know that accused was lifted by police before 26.10.2014.
SUBMISSION OF STATE
7. Addl. PP for State submitted that the Prosecution from the evidence led on record has proved the guilt of both accused beyond reasonable doubts. He referred to testimony of PW4 - injured, PW3 - brother of injured and PW19 along with ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.16/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 17:00:29 +0530 medical evidences corroborating their version. Placing reliance upon the Judgments of Hon'ble Delhi High Court in Neeraj Alias Nagar vs. State (NCT of Delhi) decided on 14 November, 2019 and Krishan Kumar Rao vs. State NCT of Delhi decided on 23 December, 2019, he contended that the absence of motive as pleaded by defence to commit the offences was not relevant when there was ample direct evidence for establishing offences. He further relied upon the Judgment of Sardul Singh vs. State of Haryana reported in AIR 2002 SC 3462 to contend that the motive can only lend additional support to strengthen the probability of commission of offences but the absence of proof does not ipso facto warrant acquittal of accused persons.
SUBMISSION OF DEFENCE
8. Ld. Counsel for accused Azim Khan pointed out various contradictions in the testimony of PW3 and PW4 and argued that these, if seen in entirety, were not trustworthy enough to prove the prosecution story. Counsel argued that the testimony of PW3 indicated he did not disclose the age, colour of cloths, body language of assailants or the registration number of motorcycle used in the commission of offences. Counsel argued that PW3 contradicted his own version in chiefexamination to that of PW4 in respect of number of boys who came inside shop and specific role ascribable to each one of them. Counsel also pointed towards the incoherencies in the statement of PW4 ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.17/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:00:39 +0530 Mukesh Sharma and argued that these were material enough to create dent in the story of Prosecution. Counsel pointed to the testimony of PW Yogesh Kumar who in his cross examination stated that the scooty riders stopped near PCR had told about 4 - 5 boys assaulting the injured with knife. Counsel for accused further referred to few discrepancies in the testimony of PW31 Inspector Sanjay Kumar and PW4 Inspector Jogender Prasad, both IOs in present case. He argued that the Prosecution failed to prove any motive or intention on part of accused to commit the offences.
9. On almost similar lines, Counsel Mr. Vashishth for co accused Ashok submitted that the prosecution could not prove the motive of commission of crime. He referred to various contradictions in the statement of PW18, PW29, PW31 and PW32. He would argue that no tangible efforts were made to investigate the case on other possible angles to extract the real truth i.e. Prosecution did not bother to investigate the case on the angle of rivalry of deceased with other persons and therefore, had remained unable to prove the case beyond all shadows of reasonable doubts.
DISCUSSION
10. I have heard Ld. Addl. PP Mr.Rakesh Kumar for State, Counsel Mr. A.A.Khan for accused Azim Khan, Counsel Mr. Gaurav Vashishth for accused Ashok @ Sonu and have ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.18/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:00:48 +0530 meticulously perused the record. I have given my thoughtful consideration to the respective submissions and have examined the evidence on record.
11. In a criminal trial, the burden of proof lies on the prosecution which has to prove accusations beyond all reasonable doubt. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. In Gurbachan Singh vs. Sat Pal Singh, AIR 1990 SC 209 it was observed that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicious and thereby destroy social defence. In Krishna Mochi vs. State of Bihar, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life and in present days when crime is looming large and humanity is suffering and society is so much affected, thereby the duties and responsibilities of the courts have become much more.
12. In Sujit Biswas vs. State of Assam, (2013) 12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. Hon'ble Supreme Court in P. Satyanarayana Murthy vs. District Inspector of Police and others, (2015) 10 SCC 152 held that if in the facts and circumstances, two views were ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.19/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 17:00:57 +0530 plausible, then the benefit of doubt would have to be given to the accused.
13. In the light of settled propositions as discussed above, let us advert to the material and analyze the evidence brought on record.
EYE WITNESSES AND OTHER ORAL TESTIMONY
14. At the outset, testimony of PW4 and PW3 and PW19 Shubham Sharma is categorical.
PW4 is the injured Mukesh Sharma, who described the incident dated 18.10.2014 and stated that on 18.10.2014 at about 9.30 pm, he was present on his shop with younger brother Suresh and one Shailesh who was working in a nearby shop. He deposed that three boys came to his shop armed with katta i.e. country made pistol and two others were armed with knives. They forcibly entered the shop and firstly, one of the offenders i.e. the boy armed with country made pistol slapped Shailesh. He deposed that the other two boys started inflicting knife injuries to Shailesh with their knives. He deposed that in order to save Shailesh, he intervened and then those boys assaulted him as well with knives giving him two stab injuries i.e. at his chest and other one at his back. He deposed that those boys stabbed Shailesh on the right side of stomach and then all started fleeing from there on raising alarm by him. PW4 deposed that the offenders rushed ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.20/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:01:06 +0530 on their black colour motorcycle (make Pulsar) towards Dilshad Garden side. He deposed that the accused inflicted stab injuries at stomach of Shailesh, due to which he fell down near Hero Motorcycle Showroom. PW4 deposed that he asked his neighbourer Shubham Sharma to help him call police. He deposed that Shubham made him (PW4) sit on his scooty for taking him to GTB Hospital. PW4 correctly identify the assailants and stated that Ashok @ Sonu had katta (country made pistol) in his hand while coaccused Azim Khan and another (JCL) had inflicted knife blows upon him as well as Shailesh (deceased). In his cross examination, PW4 denied that he knew any of the assailants prior to incident. He further denied the suggestion that he identified accused Azim Khan at the instance of police or that accused was shown to him prior to judicial TIP through photographs. To the similar suggestion put by Counsel for accused Ashok @ Sonu, he denied that the accused was shown to him through his photograph before he went to Tihar for Judicial Test Identification Parade.
15. PW3 Suresh in his testimony deposed almost identical to that of PW4 and described about the incident at relevant time stating that he and his brother Mukesh - PW4 were present at their shop along with Shailesh, who was working at the adjacent shop. He deposed that they all were watching television, when a boy came inside and gave fist blow to Shailesh. His brother Mukesh caught hold of that boy from his collar. The said boy was also carrying katta (country made pistol) in his hand and when he ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.21/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:01:16 +0530 pointed the said pistol to Shailesh, his brother PW Mukesh, attempted to push him away. The scuffle ensued and in the meanwhile two more boys who had knives in their hands reached there. One of them caught hold of his brother Mukesh (PW4)and the other boy gave knife blows to him and to Shailesh. PW3 deposed that the boy, who was holding a country made pistol was wearing white colour shirt and the boy who was carrying knife and had given knife blows was wearing white colour shirt. During the incident, hearing shouts, one of the neighbouring shopkeepers, namely Shubham PW19 also reached there and on this, the three boys attempted to flee on their motorcycle. PW3 deposed that his brother Mukesh sustained stab injuries over his chest and back and deceased Shailesh had sustained stab injuries on the side of his chest. The witness correctly identified both accused to be the assailants. In his cross examination, PW3 completely stuck to his statement and denied the suggestion that he had seen the accused persons in court prior to the date of recording his chief examination.
16. Similar is the testimony of PW19 Shubham Sharma, who stated that he was present at his shop at the relevant time when he heard noises of shouting and as he came out, he saw accused Mukesh was grappling with accused Azim. PW19 states that there were three boys at the shop, two were having knives in their hands and one was having country made pistol. PW19 stated that accused Azim was having katta with him and the other two accused had knives in their hands. PW19 stated that he started ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.22/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:01:24 +0530 shouting and tried to save PW4 Mukesh but Mukesh had already caught accused Azim and to save him, accused Azim gave PW4 stab injuries. Accused Azim also gave knife injuries to Shailesh. He deposed that he took the injured Mukesh to GTB Hospital on his scooty and also made a call at 100 number. He then informed the incident to one PCR van, standing at some distance. He deposed that Shailesh was brought to GTB hospital by PCR van but he succumbed to his injuries.
LAW ON TESTIMONY OF EYE WITNESS/INJURED
17. The testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustains injuries in the incident. So there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], Hon'ble Apex Court held as under: ".....28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.23/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:01:34 +0530 presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness........."
18. Hon'ble Supreme Court in State of U.P Vs. Naresh & Ors. Manu SC 0228/2011 observed as under:
" The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally consid ered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely impli cate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present dur ing the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The wit ness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence...."
In Sadakat Kotwar & Anr. vs. State of Jharkhand, 2021 SCC On Line SC 1046, Hon'ble Supreme Court of India held as under:
"2.....We see no reason to doubt the testimony of the witnesses examined on behalf of the prosecution more particularly, PW7 and PW8 who are the injured eyewitnesses. It is required to be noted that PW7 and PW8 are the injured eye witnesses. As held by this Court in the case of State of M.P. ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.24/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 17:01:43 +0530 vs. Mansingh, (2003) 10 SCC 414 para 9, the evidence of an injured eyewitness has great evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly....."
In 'Vijay & Anr. vs. State', Crl. A. No. 83/2000 decided on 15.09.2015, Hon'ble Delhi High Court held as under:
"59.....It is well settled that the testimony of a witness, who is himself injured in the incident about which he deposes comes with an inbuilt assurance as to his presence at the scene of crime also for the reason he is unlikely to spare the actual assailants in order to falsely implicate someone else [Inder Singh & Ors. V. State of Rajasthan 2015 (2) SCC (Cri.) 215, Abdul Sayeed Vs. State of MP 2010 (10) SCC 259 and Sheesh Ram (supra)]."
In 'Jodhan vs. State of M.P.', Crl. Appeal No. 1683 of 2010 decided on 08.04.2015, Hon'ble Supreme Court of India held as under:
"22. From the aforesaid summarization of the legal principles, it is beyond doubt that the testimony of the injured witness has its own significance and it has to be placed reliance upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and inconsistencies. As has been stated, the injured witness has been conferred special status in law and the injury sustained by him as an inbuiltguarantee of ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.25/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:01:52 +0530 his presence at the place of occurrence."
19. All three witnesses namely PW3. PW4 and PW19 correctly identified the accused persons and described their specific role ascribable to them. Their statements are consistent about the incident as to the sequence of occurrence on the fateful day. Nothing came out from the cross examination of these witnesses to discredit their statements. Nothing was put to them in cross examination as to whether these witnesses were nurturing any ill will or grudges against accused persons. PW4 Mukesh Sharma and PW3 Suresh gave a graphic description of the entire incident and coherently stated that the knife blows were given by accused persons to injured Mukesh and deceased Shailesh. Their testimonies were corroborated and supported by statement of PW31 and PW4 who deposed that accused were visible in the CCTV footage, the Hard Drive of which was taken by PW27 from the DVR installed at Showroom and seized vide seizure memo Ex.PW25/E. MEDICAL EVIDENCE
20. PW6 Dr. Priyal Jain, Senior Demonstrator, Department of Forensic Medicines, GTB Hospital proved the Postmortem Report of deceased Shailesh which opined the cause of death as "
Haemorrhagic shock as a result of antemortem injury to abdominal organs and vessels produced by sharp single edged weapon. Injury no.1 being sufficient to cause death in ordinary ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.26/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 17:02:06 +0530 course of nature".
21. The Postmortem Report No. 1443/14 Ex.PW6/A conducted by Dr. PriyalJain - PW6 described the nature of injuries as: Incised stab wound with one black stitch present over left side of chest 22.0 cm below axillar in mid axillary line. The wound is of size 2.6 x 0.3 x 11.0 cm present over left side of chest horizontally with medial angle blunt & lateral angle acute.
Haemorrhagic shock as a result of antemortem injury to abdominal organs and vessels produced by sharp single edged weapon. Injury no.1 is sufficient to cause death in ordinary course of nature...."
22. The Death Summary of deceased Shailesh shows that deceased was shifted to OT at around 11.30 pm. He underwent cardiac arrest on account of injuries around 12.45 am and expired. The cause of death was opined as hemorrhagic shock and penetrating injury at lower chest wall and splenic injury and colonic perforation with colon injury near spleen.
23. PW26 Dr. Sharad Verma, OSD from GTB Hospital proved the MLC No. A4979/14 of deceased by identifying the handwriting of Dr. Sujeet, who worked as Junior Resident under his supervision. PW5 Dr.Abhilash Singh proved the MLC and ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.27/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:02:15 +0530 Surgical Report of injured PW4 Mukesh Sharma as Ex.PW5/A bearing his signatures at point A. MLC Ex.PW5/A prepared prepared of injured Mukesh Sharma shows the nature of injuries upon him as "grievous" with lacerated wound of 2 x 1 cm at upper left chest & lacerated wound of 2 x 1 cm at left scapular region. Injured was also referred to Surgery. Both witnesses PW5 and PW26 were not cross examined despite opportunity.
24. The medical evidence as available on record of deceased and injured duly corroborated the ocular statements made by PW3, PW4 and & PW19 and there is found no inconsistency between oral and medical evidence. Statement of PW5, PW6, PW13 Dr. Shahnawaj and PW26 Dr. Sharad would demonstrate that the Mukesh injured was brought with wound injuries at hospital and injured Shailesh had succumbed to his injuries at hospital. From unrebutted testimony of witnesses coupled with medical evidence on record, it stands established that the injuries were inflicted upon the victim by the accused persons in furtherance of their common intention and knowledge.
NON RECOVERY OF WEAPON
25. Pertinently, accused Ashok @ Sonu went absconding after the commission of offence and by Order dated 23.07.2015, was declared as Proclaimed Offender. The accused could be arrested only on 03.09.2015. The weapon of offence i.e. the knife could ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.28/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:02:24 +0530 not be recovered during investigation. However, the same will not give any advantage to the accused because of the otherwise unimpeachable ocular evidence of the witnesses corroborated by medical evidence. It is settled position that even in cases where the weapon of offence is not recovered, the offender can be convicted, if other evidences have proved his role in the crime. If this is made a ground to acquit the accused, then the first thing every accused would do is to destroy the weapon of offence. In Prabhash Kumar Singh vs. State of Bihar (now Jharkhand) Criminal Appeal No.935 of 2011 decided on 12.09.2019, Hon'ble Apex Court observed as under: " In such circumstances, we do not find any reason to interfere with the Judgment of the High Court. As there is clear eyewitness account of the incident and none of the two eyewitnesses could be shaken during cross examination and they had stuck to the recollection of the facts relating to the incident, the mere fact that the weapon of assault or the bullet was not recovered cannot be demolish the prosecution case......"
26. Accused Azim Khan examined Mukesh Yadav as DW1.
The testimony of DW1 would indicate that though he stated that accused Azim Khan was employed as a driver with him from the year 2008 to 2014 and was with him from 16.10.2014 to 21.10.2014, however, he remained unable to substantiate the same in the form of any document nor did he prove that he was ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.29/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 17:02:32 +0530 having a factory at Ghaziabad, U.P. In his cross examination, DW1 stated that he could not show through any document that the accused was employed with him as a driver from 2008 till 2014. DW1 also did not file any Complaint before any authority to show that accused was with him from 16.10.2014 to 21.10.2014. DW1 did not bring anything to show that he was running the business of copper powder and was having 60 65 working under him in his factory. The testimony of DW1 clearly is unsubstantiated and pales into irrelevance compared to the overwhelming evidence produced by Prosecution.
27. Defence Counsel also argued that Prosecution did not bring any independent witness and culpable intention of both accused was not established. I may state that the case of Prosecution is based on the eye witnesses' accounts and not on circumstantial evidence. PW4 himself is an injured person who suffered grievous injuries in the incident. As regards the contradictions in the evidence of witnesses as pointed out are concerned, a perusal of evidence would show that these are only minor and insignificant in nature and do not affect the core of prosecution case. In the case of State of Uttar Pradesh v. Naresh (supra) it was observed as : ".......30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.30/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:02:41 +0530 due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence.
XXXXX XXXXXXXX XXXXXX ..........However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence..........."
28. In Rammi @ Rameshwar vs. State of MP (AIR 1999 SC
256), Hon'ble Apex Court observed as :
" When eye witnesses is examined at length is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny".
____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.31/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:02:52 +0530
29. Further, as explained in State vs.Saravanan AIR 2009 SC 152, the Court can overlook "minor discrepancies on trivial matters" which do not affect " the core of prosecution case". In State of U.P. vs. Krishna Master AIR 2010 SC 3071, the Hon'ble Supreme Court emphasised that "it is the duty of the court to separate falsehood from the truth, in sifting the evidence". At the same time, the eyewitness testimony must be credible and reliable. It should not be contradicted by other eyewitnesses or by the medical and forensic evidence, if any. Therefore, the defence argument relating to contradictory evidences of prosecution witness is meritless and rejected.
30. So far, the issue of absence of motive is concerned, the settled legal proposition is that even if the absence of motive as alleged is accepted, the same becomes insignificance in view of overwhelming direct evidence establishing the crime. There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of crime, it must necessarily result in acquittal of accused. As relied upon by State upon the law laid down by Hon'ble Apex Court in Sardul Singh vs. State of Haryana reported in AIA 2002 SC 3462, the motive is not always capable of precise proof, if proved, may only lend additional support to strengthen the probability of commission of offence by accused persons.
31. While dealing with a similar issue, Hon'ble Apex Court in ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.32/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:03:03 +0530 the Judgment titled Khursheed Ahmed vs. State of Jammu & Kashmir (2018) 7 SCC 429, observed that the motive is a double edged weapon and the same loses its importance when there is direct and reliable evidence available on record. It is also worthwhile to look at the ratio laid down by Hon'ble Apex Court in Shivaji Genu Mohite vs. State of Maharashtra 1973 3 SCC 2019, wherein it was observed as under:
"12........ In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eyewitness is rendered trustworthy."
32. Present case is based on direct evidence and keeping in mind the principles laid down by Hon'ble Apex Court, the inability of Prosecution to establish motive is not fatal to the case of Prosecution and would not render any benefit to the accused persons.
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33. To the contention of defence that the prosecution failed to prove that both accused along with JCL shared a common intention to commit the alleged offences and could not be held guilty under section 34 IPC. It would be apposite to discuss the Judgment in Rambilas Singh vs. Staet of Bihar reported in AIR 1989 SC 1593, wherein Hon'ble Apex Court observed that "
in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were one in furtherance of the common intention of all accused or in prosecution of the common object of the members of unlawful assembly."
34. Thus, all facts/circumstances and the evidence led to prove the same, indicate towards only one conclusion and i.e. the guilt of accused persons. To finally conclude, there is no doubt on 18.10.2014 at 9.20 pm, both accused persons along with another (tried as JCL) in furtherance of their common intention gave knife blows to deceased Shailesh @ Satnarayan and committed his murder and caused grievous injuries to Mukesh Sharma.
35. Section 302 IPC punishes the offence of murder. Murder is defined under section 300 of IPC as under: "Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.34/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:03:21 +0530 the intention of causing death, (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, (Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be in flicted is sufficient in the ordinary course of nature to cause death, (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.
36. It is argued on behalf of prosecution that the case falls under clause 1 & 3 of Section 300 IPC meaning thereby, the death of Shailesh amounts to murder since the act by which the death was caused was done with the intention of causing death and also with the intention of causing bodily injury, which was sufficient in the ordinary course of nature to cause death. The facts presented by Prosecution show that clearly the case will fall not only in the 1st clause but also in the 3rd clause of section 300 IPC. The nature of injuries shown in the Postmortem Report clearly indicate a culpable intention to that effect. Whether the ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.35/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma Courts, Delhi BEDI Date: 2022.02.11 17:03:30 +0530 death was actuated by the intention to cause death is subjective element and has to be deduced from the objective facts, circumstances and behaviour of the accused. In this clause, all those cases will be 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, the weapon used, the nature of injury given, the seat of injury on the human body, the motive and any other relevant circumstances connected with the death of a person.
37. In present case, from nature of injury no.1 to Shailesh and its seat and the manner in which it was inflicted, sets out the clear intention of the accused persons to cause his death. The injury no.1 i.e. incised stab wounds present over left side of chest 22 cm in mid axillary line i.e. the injury no.1 on account of blow was so fatal to deceased that he collapsed and succumbed to his injuries within few hours.
38. The settled position is that in every case of single blow, stab or cut, the offence would not by the mere fact that it is a single blow, reduce itself to section 304 IPC. In Jagrup Singh vs. State of Haryana AIR 1981 SC 1552, Hon'ble Supreme Court held that there is no justifiation for the assertion that giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under section 304 Part - II ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.36/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:03:39 +0530 of the Code. The whole thing depends upon the intention to cause death, and the case may be covered by either clause first or clause third. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
39. The third clause section 300 IPC states that every culpable homicide is murder, 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.
To see whether the case of the accused will also fall under section 302 clause three or not, I am relying upon the judgment of Hon'ble Supreme Court of India in Virsa Singh vs State 1958 AIR 465. In this case, Hon'ble Apex Court has set out the four elements test, which the prosecution must prove to bring its case under this section. The following passage in the judgment which has become locus classicus on this issue. It is as follows "To put it shortly, the prosecution must prove the following facts before it can bring a case under s.300, 3rdly" ; First, it must establish, quite objectively, that a bodily injury is present ;Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.37/40 Digitally signed by RAVINDER RAVINDER BEDI Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:03:48 +0530 accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death".
40. In present case, it is clear that the bodily injuries were present on deceased and the injury no.1 is described in the Postmortem Report from which it is clear that accused intended to inflict the same injuries. It is not case of the defence that it ____________________________________________________________________ FIR No.1472/2014, PS: Seemapuri State vs. Azim Khan & Anr. Page No.38/40 Digitally signed by RAVINDER BEDI RAVINDER Location: Karkardooma BEDI Courts, Delhi Date: 2022.02.11 17:03:58 +0530 was accidental or intentional or that some other kind of injury was intended. The injuries inflicted by the accused were sufficient to cause his death in the ordinary course of nature. The doctor who conducted postmortem stated that this fact in clear terms that the injury no.1 caused to deceased was sufficient in ordinary course of nature to cause his death.
41. To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It is sufficient if there is present an intent coupled with some overt act in execution thereof. The nature of weapon used, the intention expressed by accused at the time of the act, the motive for commission of offence, the parts of body of victim selected for causing injuries and severity of blow/blows are important factors which can be taken into consideration in coming to a finding whether the accused could be convicted for an attempt of murder. From the evidence gathered on record, the intention of the accused persons was clear of such injury upon Mukesh making them liable to be convicted under section 307 IPC.
42. In the light of aforesaid findings, this court is of the view that the prosecution has been successful in proving the charges against accused persons. The charges against both accused persons stand proved beyond cavil.
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43. Both accused are held guilty and convicted for offence punishable under Section 302/307/34 IPC and in addition accused Ashok @ Sonu also stands convicted for offence punishable under Section 174A IPC.
Let they be heard on the point of sentence.
Digitally signed by RAVINDER BEDI RAVINDER Location:
Karkardooma
BEDI Courts, Delhi
Date: 2022.02.11
17:04:25 +0530
Announced in Open Court
through VC On 11.02.2022 (Ms. Ravinder Bedi)
ASJ02/ECourt/Shahdara
Kakardooma Courts, Delhi
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