Delhi District Court
State vs . (1) Faizan @ Anardana on 14 May, 2019
IN THE COURT OF Dr. KAMINI LAU: ADDITIONAL SESSIONS
JUDGEII (CENTRAL): TIS HAZARI COURTS: DELHI
Sessions Case No. 37/2015
Registration No. 28132/2016
CRN No. DLCT010008982012
State Vs. (1) Faizan @ Anardana
S/o Mohd. Yamin
R/o H. No. 157, Katra Gokul Shah,
Matia Mahal, Jama Masjid,
Delhi
(CONVICTED)
(2) Abid Jagira
S/o Mohd. Zakir
R/o A91, Gali No.2,
Gadde Wali Masjid, Tisra Pusta,
Usman Pur, Delhi
(CONVICTED)
FIR No.: 54/2011
Police Station: Jama Masjid
Under Sections: 307/34 Indian Penal Code
Date of Committal to Sessions Court: 01.09.2012
Judgment Reserved on: 08.05.2019
Judgment Pronounced on: 14.05.2019
JUDGMENT:
(1) As per the allegations on 30.10.2011 at 8:00 PM at Gate No.2, Jama Masjid, Delhi both the accused Saizan @ Anardana and Abid Jagira in furtherance of their common intention, stabbed the victim Imran with a State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 1 of 38 knife with such an intention that if by that act they caused the death of Imran, they would have been guilty of murder.
CASE OF THE PROSECUTION/ BRIEF FACTS:
(2) The case of the prosecution is that on 30.10.2011 DD No. 21A was received at Police Station Jama Masjid pursuant to which ASI Mohd.
Usman reached LNJP Hospital from where he collected the MLC of injured Imran. ASI Mohd. Usman also met the eye witness Faiz and recorded his statement wherein the eye witness informed that he along with both the accused i.e. Faizan @ Anardana and Abid Jagira were taking tea at Gate No.2 when in the meanwhile, Imran alongwith Saif came after which they started taking tea together. According to Fiaz, there was an altercation between Imran and accused Abid Jagira on the issue of money transaction in which the accused Faizan @ Anardana took the side of Abid Jagira and they both started beating Imran. Thereafter the accused Faizan @ Anardana caught hold of Imran while the accused Abid @ Jagira took out a knife from his pant pocket and gave blows on the thigh and stomach of Imran. It was on the basis of this statement of Faiz, that the present FIR was registered and investigations commenced. (3) On 31.10.2011 the accused Faizan was arrested in the present case at the instance of Faiz. Thereafter on 17.11.2011 at the instance of injured Imran, the accused Abid Jagira was arrested. Pursuant to his arrest and disclosure statement, the accused Abid Jagira led the Investigating Officer to Urdu Park, Meena Bazar and got recovered the weapon used in the offence i.e. Knife from the bushes of the park after which the said State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 2 of 38 knife was seized. After completion of investigations, charge sheet was filed in the Court.
CHARGES:
(4) Pursuant to the order on charge dated 25.09.2012 passed by the Ld. Predecessor Court, charges under Section 307/34 Indian Penal Code were settled against both the accused Faizan @ Anardana and Abid @ Jagira to which they pleaded not guilty and claimed trial. (5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of witnesses:
S. PW No. Name of Description
No. Witness
1. PW1 Mohd. Saif Public Witness Eye witness to the incident
2. PW2 Mohd. Faiz Public Witness Eye witness to the incident
3. PW3 Imran Public Witness Victim / injured
4. PW4 Ct. Bhartri Official Witness - Collected the MLC of the
Singh Injured at JPN Hospital along with IO ASI
Mohd. Usman.
5. PW5 Dr. Ruqaiya Official Witness CMO, LNJP Hospital, who
has proved the MLC of victim Imran.
6. PW6 Dr. Rahul Jain Official Witness Sr. Resident, Department of
Surgery, Lok Nayak Hospital, Delhi who has proved the opinion with regard to the nature of injury.
7. PW7 SI Mustafa Official Witness - Duty Officer Khan
8. PW8 Ct. Dana Ram Official Witness - who had taken the exhibits to FSL.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 3 of 38 S. PW No. Name of Description No. Witness
9. PW9 ASI Brahma Official Witness MHC(M).
Nand
10. PW10 ASI Rakesh Official Witness - Witness to arrest of accused Kumar Faizan.
11. PW11 Ct. Ajay Official Witness - Duty Constable at JPN Chaudhary Hospital.
12. PW12 Dr. Rajender Official Witness - Forensic Expert Kumar
13. PW13 Retd. SI Mohd. Official Witness - Investigating Officer Usmaan
14. PW14 SI Jai Kishan Official Witness - DD Writer List of Documents/ Exhibits:
S. Exhibit No. Document Proved by
No.
1. Ex.PW2/A Statement of Mohd. Faiz under Mohd. Faiz (PW2)
Section 161 Cr.P.C.
2. Ex.PW2/B Arrest memo of accused Faizan @ Mohd. Faiz (PW2)
Anardana
3. Ex.PW2/C Personal Search memo of accused Mohd. Faiz (PW2)
Faizan @ Anardana
4. Ex.PW3/A Arrest Memo of accused Abid Imran (PW3)
5. Ex.PW3/B Personal Search Memo of accused Imran (PW3)
Abid
6. Ex.PW3/P1 Knife Imran (PW3)
7. Ex.PW3/P2 One blood stained shirt of yellow Imran (PW3)
(Colly.) colour and one blood stained jeans of
blue colour
8. Mark PW3/A Statement of Imran under Section 161 Imran (PW3)
Cr.P.C.
9. Ex.PW5/A MLC of Imran Dr. Ruqaiya (PW5)
(wrongly typed as PW4/A and it
should be read as PW5/A)
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 4 of 38
S. Exhibit No. Document Proved by
No.
10. Ex.PW7/A FIR SI Mustafa Khan
(PW7)
11. Ex.PW7/B Endorsement on Rukka by SI Mustafa SI Mustafa Khan
Khan (PW7)
12. Ex.PW9/A Entry No. 977 in Registrar No. 19 ASI Brahma Nand
(PW9)
13. Ex.PW9/B Entry No. 980 in Registrar No. 19 ASI Brahma Nand
(PW9)
14. Ex.PW9/C RC No. 43/21/11 ASI Brahma Nand
(PW9)
15. Ex.PW10/A Disclosure Statement of accused ASI Rakesh Kumar
Faizan (PW10)
16. Ex.PW10/B Pointing out memo of place of ASI Rakesh Kumar
occurrence (PW10)
17. Ex.PW11/A Seizure memo of clothes and sample Ct. Ajay Choudhary
seal (PW11)
18. Ex.PW11/B Seizure memo of blood sample Ct. Ajay Choudhary
(PW11)
19. Ex.PW12/A FSL Report - Biological Dr. Rajender Kumar
(PW12)
20. Ex.PW12/B FSL Report - Serological Dr. Rajender Kumar
(PW12)
21. Ex.PW13/A Rukka Retd. SI Mohd.
Usmaan (PW13)
22. Ex.PW13/B Site plan Retd. SI Mohd.
Usmaan (PW13)
23. Ex.PW13/C Disclosure statement of Abid Retd. SI Mohd.
Usmaan (PW13)
24. Ex.PW13/D Pointing out memo Retd. SI Mohd.
Usmaan (PW13)
25. Ex.PW13/E Sketch of knife Retd. SI Mohd.
Usmaan (PW13)
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 5 of 38
S. Exhibit No. Document Proved by
No.
26. Ex.PW13/F Seizure memo of knife Retd. SI Mohd.
Usmaan (PW13)
27. Ex.PW13/G Site plan of recovery of knife Retd. SI Mohd.
Usmaan (PW13)
28. Ex.PW14/A DD No. 21A SI Jai Kishan
(PW14)
EVIDENCE:
(6) In order to prove its case the prosecution has examined as many
as Fourteen Witnesses, which are put in a tabulated form as under:
S. Witness Deposition No. Public Witnesses
1. Mohd. Saif (PW1) PW1 Mohd. Saif is the eye witness of the incident who in his examinationinchief has deposed on the following aspects :
1. That on 30.10.2011 at about 6.00 p.m. he alongwith his relative namely Imran had come for purchasing clothes at Gate No.2, Meena Bazar, Chandni Chowk where both the accused persons (correctly identified) were consuming tea alongwith one more accomplice and both the accused were known to Imran prior to the incident.
2. That Abid started demanding money from Imran and subsequently they started abusing each other in filthy language which resulted into scuffle between them upon which Abid asked Faiz to catch hold of Imran.
3. That thereafter Abid stabbed Imran in his abdomen and thigh with a knife.
4. That thereafter he and one Faiz who also came at the spot took Imran to the LNJP Hospital and after getting the injured admitted in the hospital, he left hospital for his home.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 6 of 38 In his crossexamination on behalf of accused, the witness has deposed as under : That at the time of incident, he was there for purchasing clothes alongwith Imran.
That a dispute between Imran and Abid ensued on the issue of money.
That at the time of incident, there were so many people around therefore he does not remember as to what had happened exactly.
2. Mohd. Faiz PW2 Mohd. Faiz is also an eye witness to the incident who (PW2) in his examinationinchief has deposed on the following aspects:
1. That on 30.10.2011 at about 6.00 p.m. he had gone to Meena Bazar, Jama Masjid to purchase clothes.
2. That he found Imran lying with knife injuries in a pool of blood near gate no.2 of Jama Masjid.
3. That he had taken Imran to JPN Hospital.
4. That thereafter police came there, he was taken to PS and his thumb impression was obtained.
5. That his statement was recorded which is Ex.PW2/A bearing his thumb impression at point A.
6. That he is illiterate, he had not seen as to who had caused injuries to Imran.
7. That he had shown the place of occurrence to the IO and IO prepared the site plan.
This witness was crossexamined by the Ld. Addl. Pp for the State as he was resiling from his earlier statement to the police. In his crossexamination by the Ld. Addl. PP for State, the witness has deposed as under:
1. That he had not stated in his statement Ex.PW2/A that he alongwith both the accused persons were taking tea at Gate No.2 and meanwhile Imran alongwith Saif came there or that they started taking tea together (whereas this fact is found recorded at point B to B in his statement Ex.PW2/A).
2. That he had not stated that accused Abid @ Jagira started talking with Imran and he further asked Imran to return his money today itself otherwise it would not be good consequences for him and on this issue they started altercation, accused Anardana took the side of the accused Abid @ Jagira and both started beating Imran and he exhorted Anardana by State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 7 of 38 saying maaro saley ko and Abid asked to catch him saying "how he will not repay the money" and thereafter accused Anardana caught hold of Imran and Abid @ Jagira took out a knife from his pant pocket and assaulted on his thigh and his stomach and thereafter both fled away (whereas this fact is found recorded at point C to C in his statement Ex.PW2/A).
3. That he had not stated in his statement that Imran was assaulted by Abid @ Jagira and Anardana, i.e. both the accused persons in the court or that he was inflicted serious injuries by the accused persons. (whereas this fact is found recorded at point D to D in his statement Ex.PW2/A).
4. That he had not stated in his statement that at his pointing out, accused Faizan @ Anardana present in the court was arrested by the police from near gate No.1, Jama Masjid, Delhi.
5. That the arrest memo and personal search memo of accused Faizan Ex.PW2/B and Ex.PW2/C bear his LTI at point A on each.
6. That he had not stated in his statement that being a friend of accused persons, he has concealed the true facts that accused persons had assaulted Imran on his thigh and stomach with knife.
This witness has not been cross examined by the accused persons despite grant of opportunity.
3. Imran (PW3) PW3 Imran is the victim/injured who has in his examinationinchief deposed on the following aspects :
1. That on 30.10.2011, he alongwith his cousin Saif had gone for shopping at Gate No.2, Jama Masjid.
2. That Faiz, accused Abid Jagira and accused Faizan (both the accused correctly identified) were taking tea there.
3. That accused Abid came to him and started abusing him and altercating with him.
4. That accused Faizan supported accused Abid and exhorted to kill him and asked Abid to catch hold of him.
5. That accused Faizan @ Anardana caught hold of him from behind and accused Abid took out a knife from his pant pocket and stabbed him at his State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 8 of 38 abdomen and thigh after which both the accused fled away from there.
6. That he was taken to the JPN hospital by his cousin Saif and Faiz where he was given treatment.
7. That on 17.11.2011 accused Abid was arrested from the area of Meena Bazar, Jama Masjid and his personal search was conducted vide memo Ex.PW3/A and Ex.PW3/B bearing his signature at point A on each page.
8. That his blood stained clothes which he was wearing at the time of incident were seized in the hospital.
9. That he identifies the knife as the same which was used by the accused Faizan and Abid to cause injuries upon him. The knife is Ex.PW3/P1.
10. That he identifies one blood stained shirt of yellow colour and one blood stained jeans of blue colour as the same which were worn by him at the time of incident and the same are collectively Ex.PW3/P2.
In his crossexamination on behalf of accused, the witness has deposed as under : That he is technician of Air cooling plaint. That he had not borrowed money from accused Abid and accused Abid and Faizan were not previously known to him. (However, with his statement Mark PW3/A at point A to A, the said fact was found so recorded).
That he left his home at about 7.007.30 p.m. for marketing and at that time, he was wearing yellow colour shirt.
That when he reached at the place of incident, accused persons were sitting at tea corner near Gate No.2 Jama Masjid.
That accused Abid was under the influence of liquor. That before Saif and Faiz could intervened, accused persons had already inflicted injuries upon him by stabbing him.
That the place of occurrence is in market area but at the time of incident, the shops were closed. That at about 7.30 p.m, he was returning after shopping.
That he had no monetary transaction with accused Faizan.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 9 of 38 That accused Faizan did not ask him to give money. That his statement was recorded by police in the hospital.
That after the incident, he was unconscious, so he cannot tell at what time he was taken to hospital. That when he had signed documents, he was fully conscious.
That after stabbing him, accused persons had fled from the spot.
That accused Faizan caught hold of him from his back side but did not stab him.
Medical Evidence (witnesses):
4. Dr. Ruqaiya PW5 Dr. Ruqaiya, CMO, LNJP Hospital, has in his (PW5) examinationinchief deposed on the following aspects :
1. That he has been working in the aforementioned hospital since 2007.
2. That Dr. Renu Kumari was earlier working with the hospital and now she has left the services of the hospital.
3. That the MLC No. 174352/11 dated 30.10.2011 of patient Imran S/o Mohd. Putin brought to the hospital by Mohd. Saif with alleged history of assault, was prepared by Dr. Renu Kumari.
4. That the MLC is Ex.PW5/A (wrongly mentioned as Ex.PW4/A and shall be now reached as Ex.PW5/A) bearing signature of Doctor Renu at Point A which signatures the witness has identified.
This witness has not been cross examined by the accused persons.
5. Dr. Rahul Jain PW6 Dr. Rahul Jain, Sr. Resident, Department of Surgery, (PW6) Lok Nayak Hospital, Delhi, has in his examinationinchief deposed on the following aspects :
1. That he has been working in hospital since 2011 and had worked with Dr. Swati, SR (Surgery) who had prepared the MLC 174352 Ex.PW5/A which bears the signatures of Dr. Swati at Point X and she had opined the nature of injury as grievous from surgical point of view vide portion Y. In his crossexamination on behalf of accused, the witness has deposed as under : State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 10 of 38 That he was not on duty on that day with Dr. Swati. That he does not have any personal knowledge about the present case.
Forensic witnesses:
6. Dr. Rajender PW12 Dr. Rajender Kumar retired Deputy Director, FSL, Kumar (PW12) Rohini, Delhi has in his examinationinchief deposed on the following aspects :
1. That he is retired from the post of Deputy Director, FSL, Rohini, Delhi in the year 2015.
2. That on 24.11.2011, he was posted as Assistant Director, Biology, FSL, Rohini.
3. That on that day, three sealed parcels pertaining to the present case alongwith sample seals and forwarding letter were received at FSL Rohini, which were subsequently marked to his Division for analysis.
4. That seals were found intact on the parcels and were tallying with the sample seals.
5. That upon opening parcel no.1 sealed with the seal of LNJPN Hospital, it was found containing one jeans pant having darker stains alongwith fungus which was marked as Ex.1a, one full sleeves shirt having brown stains which was marked as Ex.1b and one cut/torn baniyan having brown stains which was marked as Ex.1c.
6. That upon opening parcel no.2 sealed with the seal of LNJPN Hospital, it was found containing dark brown foul smelling liquid described as blood sample in a plastic tube which was marked as Ex.2.
7. That upon opening parcel no.3 sealed with the seal of MU, it was found to be containing weapon of offence having rusty brown stains which was marked as Ex.3.
8. That upon examination of the exhibits, blood was detected on all the exhibits.
9. That he also conducted serological examination of the blood found on the exhibits.
10. That after examination, he resealed the exhibits with the copy of RK FSL, Delhi.
11. That he prepared his biological report which is Ex.PW12/A bearing his signatures at points A and B. State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 11 of 38
12. That his serological report is Ex.PW12/B bearing his signatures at point A.
13. That he submitted the parcels alongwith his reports for onward transmission to the forwarding agency.
This witness has not been cross examined by the accused persons despite grant of opportunity.
Police/ Official witnesses:
7. Constable Bhartri PW4 Constable Bhartri Singh has in his examinationin Singh (PW4) chief deposed on the following aspects :
1. That on 30.10.2011, he was posted at PS Jama Masjid and was on Emergency duty from 9.00 p.m to 9.00 a.m.
2. That on that day at about 3.00 a.m. (intervening night of 30/31.10.2011) on receipt of DD No. 21A, he alongwith IO ASI Mohd. Usman reached the JPN Hospital and IO obtained MLC of injured Imran.
3. That Faiz, eye witness to the incident also met them at the hospital.
4. That IO recorded his statement, prepared rukka and handed over the same for registration of the case FIR.
5. That he left the hospital alongwith rukka for the PS and after getting the case FIR registered.
6. That he returned to the hospital and handed over the copy of the FIR and rukka to the IO.
7. That his statement was recorded.
This witness has not been cross examined by the accused persons.
8. SI Mustafa Khan PW7 SI Mustafa Khan, No. 6576/D, P.S. Sangam Vihar, (PW7) SouthEast, Delhi, has in his examinationinchief deposed on the following aspects :
1. That on 31.10.2011, he was posted at PS Jama Masjid and on that day he was working as Duty Officer from 12.00 midnight to 8.00 a.m.
2. That on that day, at about 12.10 a.m. Ct. Bhartari brought a rukka sent by ASI Mohd. Usman, and handed over the same to him.
3. That on the basis of rukka, he got the present FIR registered through computer installed in the PS and thereafter handed over the copy of FIR and original rukka to Ct. Bhartari for handing over the same to State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 12 of 38 IO ASI Mohd. Usman which is Ex.PW7/A bearing his signature at point A.
4. That his endorsement on rukka is Ex.PW7/B bearing his signature at point A. This witness has not been cross examined by the accused persons.
9. Ct. Dana Ram PW8 Ct. Dana Ram, No. 533/C, Lahore Bus Sewa, Darya (PW8) Ganj Delhi, has in his examinationinchief deposed on the following aspects :
1. That on 24.11.2011, he was posted at PS Jama Masjid and on the directions of IO ASI Mohd. Usman he had taken sealed exhibits from Malkhana for deposing the same with FSL Rohini vide RC No. 43/21/11.
2. That he had deposited the said exhibits with FSL Rohini and its acknowledgment has been handed over to MHCM.
3. That he did not make any temper with the pullanda while the same was in his custody.
In his crossexamination on behalf of accused, the witness has deposed that he had deposited the pullanda at the counter of FSL, however, he does not remember the name of dealing assistant.
10. ASI Brahma PW9 ASI Brahma Nand, No. 7131/Security, Delhi High Nand (PW9) Court Security, New Delhi, has in his examinationinchief deposed on the following aspects :
1. That on 31.10.2011, he was posted as Head Constable at PS Jama Masjid and was working as MHC(M).
2. That on that day, ASI Mohd. Usman deposited with him two sealed parcels alongwith sample seals vide entry in register no. 19 at serial no. 977 copy of which entry is Ex.PW9/A (OSR).
3. That on 17.11.2011, ASI Mohd. Usman deposited with him one sealed parcel having knife vide entry in register no. 19 at serial no. 980 copy of which entry is Ex.PW9/B (OSR).
4. That on 23.11.2011 on the directions of the IO, he had sent three sealed parcels alongwith sample seal to FSL, Rohini through Ct. Dana Ram vide RC No. 43/21/11. Copy of the said RC is Ex.PW9/C (OSR).
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 13 of 38
5. That after depositing the exhibits, Ct. Dana Ram returned and handed over to him the acknowledgment of the exhibits deposited at FSL, Rohini.
6. That so long as exhibits remained in his custody, same were not tampered with.
This witness has not been cross examined by the accused persons despite grant of opportunity.
11. ASI Rakesh PW10 ASI Rakesh Kumar, No. 2535/C, Posted at PS Kumar (PW10) Kamla Market, Delhi, has in his examinationinchief deposed on the following aspects :
1. That on 31.10.2011, he was posted as Constable at PS Jama Masjid and on that day, he alongwith ASI Usman had joined the investigation of this case and he alongwith him and witness Faiz went to the area of Urdu Bazar in search of accused Faizan @ Anardana.
2. That when they reached at gate no.1 of Jama Masjid, witness Faiz pointed towards accused Faizan and he was apprehended.
3. That IO interrogated with the accused and arrested him vide arrest memo already Ex.PW2/B bearing his signatures at point B.
4. That his personal search was taken vide memo Ex.PW2/C bearing his signatures at point B.
5. That accused Faizan made his disclosure statement which is Ex.PW10/A bearing his signatures at point A.
6. That the accused had pointed out the place of occurrence vide point out memo Ex.PW10/B bearing his signature at point A.
7. That the medical examination of accused was got conducted and thereafter they returned to police station.
This witness has not been cross examined by the accused persons.
12. Ct. Ajay PW11 Ct. Ajay Choudhary, No. 1195/C, PS IP Estate, Chaudhary Delhi, has in his examinationinchief deposed on the (PW11) following aspects : State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 14 of 38
1. That on 30.10.2011, he was posted at PS IP Estate as Constable and was working as Duty Constable at JPN Hospital.
2. That on that day, one injured namely Imran S/o Mohd. Putin was admitted at about 8.30 p.m.
3. That concerned doctor handed over one sealed pullinda having blood stained clothes of injured, one sealed vial containing blood sample of injuredc and one sample seal to him and he handed over the same to the IO.
4. That IO seized the same vide seizure memo.
5. That IO seized clothes and sample seal vide seizure memo Ex.PW11/A bearing his signature at point A and blood sample was seized by the IO and same is Ex.PW11/B bearing his signature at point A.
6. That IO recorded his statement.
This witness has not been cross examined by the accused persons.
13. Retd. SI Mohd. PW13 Retd. SI Mohd. Usmaan from P.S. Punhana, Usmaan (PW13) District Mewat, Haryana, has in his examinationinchief deposed on the following aspects :
1. That on 30.10.2011, he was posted at PS Jama Masjid as ASI and on that day, on receiving of DD No. 21A, he alongwith Ct. Bhartri reached at J.P.N. Hospital from where he collected the MLC of injured Imran.
2. That he recorded the statement of eyewitness Faiz present at the hospital, prepared the rukka Ex.PW13/A, bearing his signature at point X and handed over the same to Ct. Bhartri for registration of FIR.
3. That after sometime, Ct. Bhartri came back at the hospital and handed over copy of FIR and original rukka to him.
4. That duty Ct. handed over the sealed pullanda containing clothes of the injured which was taken into possession by him vide seizure memo Ex.PW11/A, bearing his signature at point B.
5. That on 31.10.2011, he prepared site plan Ex.PW13/B, bearing his signature at point A at the instance of Faiz.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 15 of 38
6. That at the instance of Faiz, accused Faizan who is present in the court was apprehended from gate no.1, Jama Masjid, Delhi.
7. That he arrested him vide arrest memo Ex.PW2/B, and accused was personally searched vide personal search memo already Ex.PW2/C, each of them bearing his signatures at point C.
8. That he recorded his disclosure statement Ex.PW10/A, bearing his signature at point B.
9. That accused Faizan led them to the place of incident and at his instance he prepared pointing out memo Ex.PW10/B, bearing his signature at point B.
10. That he also collected the sealed pullinda containing the blood sample of injured Imran handed over by the Duty Constable at JPN Hospital vide seizure memo Ex.PW11/D bearing his signature at point B.
11. That on 17.11.2011, at the instance of injured Imran, accused Abid who is present in the court was apprehended from Meena Bazar, Jama Masjid, Delhi.
12. That arrested him vide arrest memo Ex.PW3/A and personally searched vide personal search memo Ex.PW3/B, each of them bears his signatures at point B respectively.
13. That he recorded his disclosure statement Ex.PW13/C, bearing his signature at point A.
14. That accused Abid led them to the place of incident where at his instance he prepared pointing out memo Ex.PW13/D bearing his signature at point A.
15. That accused further led them to the Urdu Park, Meena Bazar and got recovered weapon of offence i.e. Knife from the bushes in the park.
16. That he prepared sketch of the knife Ex.PW13/E, bearing his signature at point A.
17. That he prepared cloth pullinda of the knife which was sealed with the seal of 'MU' and also prepared seizure memo Ex.PW13/F bearing his signature at point A.
18. That he also prepared site plan of place of recovery Ex.PW13/G, bearing his signature at point A.
19. That during the course of investigation, he sent the exhibits for analysis.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 16 of 38
20. That after completion of investigation, he submitted the charge sheet before the court.
21. That after the result of FSL was obtained, he also filed the same before the court.
In his crossexamination on behalf of accused, the witness has deposed as under : That he received DD No. 21A at about 9.00 p.m. That they reached at JPN Hospital within 1520 minutes.
That he sent the rukka at about 11.50 p.m. That Ct. Bharat Hari came back to the hospital alongwith copy of FIR at about 1.301.45 a.m. That he had not obtained signature of Faiz on the site plan Ex.PW13/B. That he obtained the signatures/thumb impression of Ct. Rakesh and Faiz/complainant on arrest memo and personal search memos.
That intimation regarding arrest of accused Faizan was given to his brother Wasim.
That he does not remember the date when he sent the exhibits to FSL, probably he had sent the same on 24.11.2011.
That on 16.11.2011, injured Imran met him at the PS at about 11.15 p.m. That he does not remember the DD number of his departure from the PS alongwith Imran.
That at the instance of Imran, he directly reached Meena Bazar.
That Imran was present during the investigation on 17.11.2011 alongwith Ct. Anand Kumar.
That he apprehended accused Mohd. Abid on nehar patri at Meena Bazar.
That the place of apprehension of accused is a public place and public persons were passing by. That accused Abid was arrested at about 12.30 a.m. That he informed brother of the accused Abid regarding his apprehension.
That he does not remember the name and telephone number of his brother.
That he recorded disclosure statement of the accused at the place of his arrest.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 17 of 38 That he obtained the signatures of Ct. Anand Kumar on the disclosure statement of accused Abid. That he prepared the pointing out memo and the same bears the signature of Ct. Anand Kumar. That accused Abid was taken to the PS where he was lodged in the lockup.
That he was again taken out at about 10.00 a.m. 10.30 a.m. for the purpose of recovery.
That Imran was not present with him at the time of recovery.
14. SI Jai Kishan PW14 SI Jai Kishan, No. 1135D, Main Lines, Security, (PW14) Vinay Marg, Delhi, has in his examinationinchief deposed on the following aspects :
1. That on 30.10.2011, he was posted at PS Jama Masjid and his duty hours were from 4.00 p.m to 12.00 midnight.
2. That on that day, an information was received from LNJP Hospital that one injured Mohd. Imran was admitted by his brother Saif in the hospital.
3. That he recorded the said information vide DD No. 21A, copy of which is Ex.PW14/A (OSR) and same is marked to ASI Mohd. Usman.
That this witness has not been cross examined by the accused persons.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
(7) After completion of prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to them which they have denied. Both the accused have stated that they have been falsely implicated in the present case. According to the accused Faizan, he is not known to the injured Imran and there was no money transaction between him and the injured.
The accused have not led any evidence in their defence.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 18 of 38 FINDINGS:
(8) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the parties and the evidence on record. My findings are as under:
Ocular Evidence:
(9) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspects connected with the offence, there is no reason to reject their testimonies. (10) The entire case of the prosecution is based upon the testimony of victim Imran (PW3) who had received the injuries. The prosecution has also placed its reliance upon the testimony of Mohd. Saif (PW1) and Mohd. Faiz (PW2) are eye witnesses to the incident. The present FIR was registered on the statement of the witness Mohd. Faiz (PW2) who has turned hostile on the identity of the accused but admits that on 30.10.2011 he found Imran lying with knife injuries in a pool of blood near Gate No.2 of Jama Masjid on which he took him to JPN Hospital where his statement was recorded. He has denied having stated in his statement Ex.PW2/A that the accused Faizan @ Anardana caught hold of Imran and Abid @ Jagira took out a knife from his pant pocket and gave State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 19 of 38 knife blows on his thigh and stomach.
(11) Since the prosecution is placing its heavy reliance on the testimonies of Mohd. Saif (PW1) and Imran (PW3) hence it is necessary for this Court to first determine whether what they have testfied is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 20 of 38 becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978). (12) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(13) Applying the settled principles of law to the facts of the present case, coming first to the testimony of eye witness Mohd. Saif (PW1) the relevant portion of the same is as under:
"..... On 30.10.2011 at about 6:00 PM I along with my relative namely Imran had come for purchasing clothes at Gate No.2, Meena Bazar, Chandni Chowk. Both the accused present in the court today (correctly identified) were taking tea along with one more accomplice at Gate No.2, Meena Bazar. Both the accused were known to Imran prior to the incident. Abid started demanding money from Imran and subsequently they started abusing each other in filthy language which resulted State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 21 of 38 into scuffle between them. Abid asked Faiz to catch hold of Imran and thereafter Abid stabbed Imran in his abdomen and thigh with knife. Thereafter I and one Faiz who also came at the spot took Imran to the LNJP Hospital. After getting the injured admitted in the hospital, I left hospital for my home...."
(14) In his crossexamination, the witness Mohd. Saif (PW1) has deposed that a dispute had arisen between Imran and Abid on the issue of money.
(15) Now coming to the testimony of injured Imran (PW3), the relevant portion of the same is reproduced as under:
"...... I am residing at aforementioned address and mechanic of machine. On 30.10.2011, I along with my cousin Saif had gone for shopping at Gate No.2, Jama Masjid. Faiz, accused Abid Jagira and accused Faizan i.e. both the accused present today in the court today (correctly identified) were taking tea there. Accused Abid came to me and started talking to me and he further asked me to return his money. On this, he started abusing me and altercating with me. Accused Faizan supported accused Abid and exhorted to kill me and asked Abid to catch hold of me. Accused Faizan @ Anardana caught hold of me from behind and accused Abid took out a knife from his pant pocket and stabbed me at my abdomen and thigh. Thereafter both the accused fled away from there. I was taken to the JPN Hospital by my cousins Saif and Faiz. I was given treatment at JPN Hospital.
On 17.11.2011 accused Abid was arrested from the area of Meena Bazar, Jama Masjid and his personal search was conducted vide memo Ex.PW3/A and B bearing my signature at point A on each. My blood stained clothes which I was wearing at the time of State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 22 of 38 incident were seized in the hospital...."
(16) In his crossexamination the witness Imran (PW3) has denied that he had borrowed money from accused Abid. According to him, the accused Abid and Faizan were not previously known to him and the accused Abid was under the influence of liquor. He has explained that before Saif and Faiz could intervened accused persons had inflicted injuries upon him. He has admitted that the place of occurrence is in market area but explained that at the time of incident, the shops were closed. He has also stated that he had no monetary transaction with accused Faizan and admitted that accused Faizan did not ask him to give money. He has testified that after stabbing him, the accused persons had fled from the spot. He has also explained that though the accused Faizan did not stab him but he (accused Faizan) caught hold of him from his back while accused Abid had stabbed him.
(17) A combine reading of the testimonies of both the witnesses i.e. Mohd. Saif (PW1) and Imran (PW3) confirm the presence of the accused Faizan @ Anardana and Abid Jagira. Their testimonies also confirm that prior to the incident, there was some verbal altercation between them wherein the accused Faizan @ Anardana aided the accused Abid and exhorted to kill Imran. They have specifically identified the accused Faizan @ Anardana as the person who had caught hold of Imran from behind on which the accused Abid Jagira took out a knife from his pants pocket and stabbed Imran on his abdomen and thigh, after which both of them fled away from the site.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 23 of 38 (18) Both the witnesses Mohd. Saif (PW1) and Imran (PW3) have corroborated each other in material particulars and their testimonies find independent confirmation from the other circumstantial evidence brought before this Court by the prosecution. They both are reliable witnesses. They had named the accused at the first instance leaving little scope for tutoring and maneuvering. They have corroborated each other on the manner in which the incident took place and I find no reason to disbelieve their testimonies and the versions put forth by them. I may also note that witness Imran (PW3) is the injured eye witness and he has stood by his version. His testimony has its own efficacy and relevancy and the fact that he had sustained injuries on his body would show that he was present at the place of occurrence and had seen the occurrence by himself [Ref.:
Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eyewitness are natural witnesses and they could not have concocted a baseless case against accused. Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist. (19) I, therefore, hold that the ocular evidence on record in the form of testimonies of Mohd. Saif (PW1) and Imran (PW3) corroborate the prosecution version and establishes the guilt of the accused.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 24 of 38 Medical Evidence:
(20) Dr. Ruqaiya (PW5), CMO from LNJP Hospital has proved the MLC of the injured/ victim Imran which is Ex.PW4/A according to which the injured Imran was brought to the hospital by Mohd. Saif with alleged history of assault and on examination by Dr. Renu Kumari, following injures were found:
1. CLW of 8 x 5 cm on left side of thigh
2. CLW of 8 x 5 cm on right side of abdomen near epigastrum (upper abdomen)
3. Internal tissue was protruding out.
(21) Further, Dr. Rahul Jain (PW6) Senior Resident, LNJP Hospital, Delhi has proved that Dr. Swati SR (Surgery) had opined the nature of injury as Grievous from surgical point of view vide her noting at portion Y on the MLC Ex.PW5/A. (22) The above medical evidence in the form of MLC of the injured/ victim Imran corroborates the ocular evidence and confirms the version of the prosecution and the knowledge so attributed to the accused as contemplated under Section 307 Indian Penal Code.
Forensic Evidence:
(23) Dr. Rajender Kumar (PW12) was the Assistant Director (Biology), FSL, Delhi who has proved having conducted biological and serological examination on the exhibits sent to him. He has proved having prepared the Biological Report Ex.PW12/A according to which blood was State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 25 of 38 detected on Ex.1a (pantsjeans), Ex.1b (Shirt), Ex.1c (baniyan), Ex.2 (blood sample) and Ex.3 (weapon of offence). He has further proved the Serological Report Ex.PW12/B according to which Human Blood of 'O' Group was detected on Ex.1a (pantsjeans), Ex.1b (Shirt), Ex.1c (baniyan) and Ex.3 (weapon of offence). However, no opinion could be given on Ex.2 (Blood sample), the sample blood having putrefied. (24) The above forensic evidence establishes that the blood group of the injured/ victim Imran is 'O' which was detected on his clothes and also on the weapon of offence i.e. Knife Ex.PW3/P1, got recovered by the accused Abid Jagira which is a strong pointer towards the guilt of the accused Abid Jagira.
Recovery of knife at the instance of accused Faizan:
(25) The case of the prosecution is that on the same date of the incident i.e. 31.10.2011 the accused Faizan was arrested in the present case at the instance of Faiz. Thereafter on 17.11.2011 at the instance of injured Imran, the accused Abid Jagira was arrested in the present case vide memo Ex.PW3/A, his personal search was conducted vide memo Ex.PW3/B and his disclosure statement was recorded vide Ex.PW13/C. The accused Abid Jagira then led the Investigating Officer to the place of incident pursuant to which a pointing out memo Ex.PW13/D was prepared. Pursuant to his disclosure statement, the accused Abid Jagira led the Investigating Officer to Urdu Park, Meena Bazar and got recovered the weapon used in the offence i.e. Knife from the bushes of State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 26 of 38 the park after which the Investigating Officer prepared a sketch of the same vide Ex.PW13/E and the said knife was then seized vide memo Ex.PW13/F. In this regard, the Ld. Addl. PP for the State has placed his reliance upon the testimony of Retd. SI Mohd. Usman (PW13) and the documents proved by him.
(26) The Defence Counsel for the accused Abid Jagira has vehemently argued that the knife Ex.PW3/P1 has been planted upon the accused Abid Jagira and even otherwise, the recovery of the knife cannot be believed since the place from where the alleged recovery has been affected was accessible to general public and despite opportunity no public witness has been joined in the recovery proceedings. (27) I have considered the rival contentions. Before coming to the merits of the argument, it is necessary to first briefly discuss the relevant provisions of law. As per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer. (28) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 27 of 38
a) Anything, state of things, or relation of things, or capable of being perceived by the senses,
b) Any mental condition of which any person is conscious.
(29) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(30) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles". (31) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 28 of 38 considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S. 27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information........... as relates distinctly to the State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 29 of 38 fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(32) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 30 of 38 ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 31 of 38 unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."
(33) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence..."
(34) In the said case the Hon'ble Supreme Court further went to explain that:
"..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 32 of 38 led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(35) The Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 33 of 38 information as relates distinctly to the fact thereby discovered is admissible.
(36) Applying the settled principles of law to the facts of the present case it is evident that the place where the weapon of offence i.e. knife was hidden was not within the knowledge of the Investigating Agency and it was the accused Abid Jagira who disclosed about the same. In so far as the argument of the Ld. Counsel that the place of recovery was accessible to general public is concerned, I may observe that though the said place was accessible to general public but the exact spot from where the knife was recovered was neither within the sight or could have been known of anybody. It was the accused Abid Jagira who had hidden the knife in the bushes of Urdu Park, Meena Bazar. He was the only one who could have been aware of the exact place where he had hidden the knife. It was the accused Abid Jagira who got recovered the knife from the bushes of Urdu Park. It is not possible that anybody else could have planted the same at that place, the spot not being visible to all. In this regard I may observe that the requirement of law is not that the place was accessible to others or not but whether it was visible to others and if not then it is immaterial that the place of concealment is accessible to other. [Ref.: State of HP Vs. Jeet Singh reported in AIR 1999 SC 1293 and Tahir & Others Vs. State reported in 87 (2000) DLT 207 (Delhi) (DB)]. Hence, in this background I hereby hold that this recovery cannot be doubted in view of the fact that there is an independent corroboration forthcoming with regard to the use of this knife from the FSL report which confirms the presence of blood of the victim on the same.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 34 of 38 (37) This being the background, I hereby hold that the portion of the disclosure statement of the accused Abid Jagira which is discovery of facts as aforesaid is admissible in evidence and is a strong pointer towards the guilt of the accused.
FINAL CONCLUSIONS:
(38) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. 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;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. 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.
(39) Applying the above principles of law to the present case it is evident that the investigations conducted including the documents State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 35 of 38 prepared in the present case have been substantially proved by the police witnesses including the investigating officers. Both the accused Faizan @ Anardana and Abid @ Jagira have been duly identified by the witnesses in the Court. On the basis of the evidence on record the following aspects stand established:
That on 30.10.2011, the victim Imran (PW3) along with Saif (PW1) had gone to Gate No.2, Jama Masjid.
That Faiz (PW2 - eye witness who had taken the injured to hospital) was having tea along with accused Abid Jagira and accused Faizan.
That accused Abid started talking to Imran and there was a verbal altercation between Abid Jagira and Imran during which accused Faizan supported the accused Abid and exhorted to kill Imran and asked Abid to catch hold of Imran. That accused Faizan @ Anardana caught hold of Imran from behind and accused Abid took out a knife from his pants pocket and stabbed Imran on his abdomen and thigh after which both the accused fled away from there.
That Imran was taken to the LNJP Hospital by Mohd. Saif and Faiz.
That on the same day i.e. 30.10.2011 the accused Faizan @ Anardana was arrested at the instance of eye witness Mohd. Saif. That on 17.11.2011 the accused Abid was arrested from the area of Meena Bazar, Jama Masjid at the instance of victim Imran.
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 36 of 38 That pursuant to his disclosure statement, the accused Abid Jagira got recovered the weapon of offence i.e. knife from the bushes of Urdu Park, Meena Bazar.
(40) The medical evidence on record establishes that the injured Imran was brought to the hospital by Mohd. Saif with alleged history of assault and on examination CLW of 8 x 5 cm on left side of thigh; CLW of 8 x 5 cm on right side of abdomen near epigastrum (upper abdomen) and internal tissue was protruding out, were found on the body of victim, which injuries were Grievous in nature.
(41) Further, the Forensic Evidence on record establishes that the blood group of the injured/ victim Imran is 'O' which was detected on his clothes and also on the weapon of offence i.e. Knife Ex.PW3/P1, which was got recovered by the accused Abid @ Jagira. (42) I may observe that there are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(43) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, MLC, State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 37 of 38 etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(44) This being the background I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Faizan @ Anardana and Abid Jagira that in furtherance of their common intention both the accused stabbed the victim Imran with a knife with such intention and such circumstances that if by that act they had caused the death of Imran, they would have been guilty of murder, for which both the accused are hereby held guilty of the offence under Section 307/34 Indian Penal Code.
(45) Both the accused are accordingly convicted. Be listed for arguments on sentence on 21.05.2019. Digitally signed KAMINI by KAMINI LAU Date:
LAU 2019.05.14
17:41:17 +0530
Announced in the open court (Dr. KAMINI LAU)
Dated: 14.05.2019 Addl. Sessions JudgeII (Central),
Tis Hazari Courts, Delhi
State Vs. Faizan & Anr., FIR No. 54/2011, PS Jama Masjid, Judgment dated 14.05.2019 Page No. 38 of 38