Delhi District Court
State vs . Mohd. Akbar @ Guddu, on 5 September, 2019
Sessions Case No.56236/2016 IN THE COURT OF SH. GORAKH NATH PANDEY, ADDITIONAL SESSIONS JUDGE FAST TRACK COURT, WEST DISTRICT, TIS HAZARI COURTS, DELHI. CNR No.DLWT010005052015 Sessions Case No.: 56236/2016 FIR No. : 1192/2015 Under Sections : 302 IPC Police Station : Tilak Nagar In the matter of: State Vs. Mohd. Akbar @ Guddu, S/o Abdul Salam R/o House No.B597, J.J. Colony, Khyala, Delhi. Date of committal of case : 03.12.2015 Date of hearing final arguments : 05.09.2019 Date of pronouncement of Judgment : 05.09.2019 Decision : Acquitted. JUDGMENT:
1. Accused Akbar @ Guddu has been sent for trial by PS Tilak Nagar for the commission of offence punishable under Section 302 IPC on the allegation that on 13.08.2005 at about 06:00 pm in front of Mayur Chicken Shop, Ravi Nagar, behind Meera Enclave, DDA FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.1/48 Sessions Case No.56236/2016 Park Jungle, Delhi, he committed murder of Mohd. Jishan by hitting stone.
2. The case of the prosecution, as culled out from the charge sheet, is that 2.1 On the intervening night of 14.08.2015 and 15.08.2015 upon receipt of DD No.42A Ex.PW11/A, ASI Veerpal/PW20 alongwith Ct. Jasvir reached the spot i.e. in front of Mayur Chicken, behind Meera Enclave. Insp. Raj Kumar/PW22 also reached the spot. At the spot, Mohd. Tipu Sultan and Masoom met with them. At the spot, they found dead body of a person aged about 18 years wearing blue colour jeans pant and white colour shirt having white strips was lying. There were injury marks on the head and mouth of the deceased. Blood was also oozing out from his injuries. Some stones having blood stains were also lying near the head of the dead body. Blood was also lying near the dead body. Crime team was called at the spot. Crime team took the photographs of the spot and prepared the scene of crime report and handed over the report to Insp. Raj Kumar/PW22. Dead body was sent to DDU Hospital through Ct. Devinder/PW4. Insp. Raj Kumar recorded the statement of Mohd. Tipu Sultan vide Ex.PW8/B. FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.2/48 Sessions Case No.56236/2016 2.2 Insp. Raj Kumar made an endorsement Ex.PW22/A on the statement of complainant and got the FIR registered under Section 302 IPC through Ct. Jagdish/PW16.
2.3 On 15.08.2015, during investigation, Insp. Raj Kumar prepared the site plan in the presence of Mohd. Tipu Sultan. Ct. Jagdish also handed over the copy of FIR and original rukka to him for investigation. He also seized two blood stained stones; blood stained earth control and some concrete from the spot and marked them as Sr. no.1 to 4.
On the same day, during investigation, Insp. Raj Kumar also recorded the statements of eye witnesses namely Sourabh, Chunky Pandey and Masoom under Section 161 Cr.P.C. Thereafter, he alongwith staff went to DDU Hospital and collected the MLC No.7327/15 Ex.PW21/A of the deceased. Ct. Devinder also met him in the hospital who was guarded the dead body. In the hospital, dead body was identified by his brother and father namely Tipu Sultan and Mohd. Kamal and Insp. Raj Kumar recorded their statement in this regard under Section 161 Cr. P. C. He also filled the inquest papers for the postmortem of the deceased and handed over the same to doctor concerned. After the postmortem, the dead body of the deceased was handed over to his relatives for FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.3/48 Sessions Case No.56236/2016 cremation vide receipt Ex.PW2/B. 2.4 During the investigation, in the search of accused, Insp. Raj Kumar/PW22 alongwith H.Ct. Rajender/PW18, Ct. Satyavert/PW17 reached near Chowkhandi Chowk in a govt. gypsy driven by H.Ct. Omkar where secret informer met them. Secret informer informed Insp. Raj Kumar/PW22 that accused Mohd. Akbar has come to his house for fleeing. Thereafter, police team went to the house of accused Mohd. Akbar i.e. B589, Khyala at about 04:30 pm. Insp. Raj Kumar asked the public persons during the way to join the raiding party but none agreed. He also made efforts to join the public persons in the investigation from near the house of accused but none agreed. Insp. Raj Kumar/PW22 interrogated the accused Mohd. Akbar at his house. Personal search of the accused was conducted vide memo Ex.PW17/B. He also arrested the accused vide arrest memo Ex.PW17/A and gave the information of the arrest of accused to his father Abdul Salam. He also recorded the disclosure statement of the accused Ex.PW17/C. As per disclosure statement, accused Mohd. Akbar got recovered his blood stained clothes worn by him at the time of incident from his house. Insp. Raj Kumar/PW22 seized the said clothes vide memo Ex.PW17/D. FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.4/48 Sessions Case No.56236/2016 2.5 Thereafter, police team alongwith accused reached at the spot. Accused identified the spot vide identification memo Ex.PW17/E. He also recovered one small stone from near the bushes at the spot which he used during the commission of this case. Insp. Raj Kumar also seized the said stone vide Ex.PW17/G. He also seized the blood stained earth control and concrete from the spot. One pair of hawai chappal of black and white colour was also seized from the spot at the instance of accused and accused disclosed that it is the same chappal which belonged to deceased. Insp. Raj Kumar also seized the said chappal. Site plan of the place of recovery was also prepared. Accused was medically examined from DDU Hospital through Ct. Satyavert and his blood sample was seized.
2.6 During the investigation, IO Insp. Raj Kumar/PW22 recorded the statements of the witnesses under Section 161 Cr.P.C. 2.7 On 16.08.2015, accused Mohd. Akbar was produced before the court. Insp. Raj Kumar/PW22 also got recorded the statements under Section 164 Cr.P.C. of witnesses Masoom, Saurav @ Rajesh and Chanki Pandey through Ld. M.M. 2.8 On 18.08.2015, SI Mohd. Haroon on the direction of Insp. Raj Kumar went to DDU Hospital Mortuary and collected the FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.5/48 Sessions Case No.56236/2016 clothes of deceased and handed over the same to Insp. Raj Kumar, who seized the same. On 27.08.2018, Insp. Raj Kumar obtained the post mortem report of the deceased through SI Mohd. Haroon. He also got obtained the opinion qua the weapon of offence from DDU Hospital through SI Mohd. Haroon. He also collected the PCR Form; sent the exhibits to FSL Rohini for examination through Ct. Lokender; prepared the scaled site plan of the spot through Insp. Mahesh; obtained the photographs from crime team. After completion of investigation, charge sheet was filed against the accused under Section 302 IPC.
3. On 16.12.2015, charge for the commission of offence punishable under Section 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. Prosecution evidence: To prove the charges against the accused, the prosecution examined 23 witnesses in all. For sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon by them is mentioned hereinbelow: FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.6/48 Sessions Case No.56236/2016 PW-Name Nature of evidence Documents proved.
FIR No.1192/2015State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.7/48 Sessions Case No.56236/2016 PW1 Sh. Chunky Eyewitness. Ex.PW1/A (his Pandey. statement u/s 164 CrPC).
PW2 Md. Kamal, Identified and received the dead Ex.PW2/A (his father of deceased body of deceased. statement regarding identification of dead body) and Ex.PW2/B (receipt).
PW3 Sourabh Eyewitness. Ex.PW3/A (his
statements u/s 164
CrPC).
PW4 Ct. On receipt of DD no.42A, he Ex.PW4/A (seizure
Devender Singh alongwith ASI Veer Pal memo of blood stain
reached the spot on 14.08.2019; concrete stone),
SHO also reached there and Ex.PW4/B (seizure
called crime team; he took the memo of earth
dead body to Mortuary, DDU control), Ex.PW4/C
hospital. (seizure memo of slab/
silli), Ex.PW4/D
(seizure memo of
concrete/earth control),
Ex.PW4/P1 (big stone
concrete), and
Ex.PW4/P2 (one slab
stone).
PW5 Sh. Masoom Eyewitness.
PW6 Ct. Sunil, He took photographs of the spot, Ex.PW6/A1 to
Photographer dead body and stones which Ex.PW6/A26
were lying there. (photographs) and
Ex.PW6/B1 to
FIR No.1192/2015
State Vs. Mohd. Akbar @ Guddu
Under Section 302 IPC Page No.8/48
Sessions Case No.56236/2016
PW6/B27 (negatives of
the photographs).
PW7 SI M. He received three sealed parcels
Haroon of weapon of offence from
MHC (M) and handed over the
same to doctor and received
subsequent opinion; deposited
the same in Malkhana and
delivered the RC to MHC (M).
PW8 Tipu Sultan He is the brother of deceased. Ex.PW8/A (statement
regarding identification
of dead body) and
Ex.PW8/B (his
statement recorded by
the police).
PW9 Ct. Deposited the nine parcels in the
Lokender office of FSL Delhi on
21.09.2015 vide RC
No.27/21/15.
PW10 ASI Duty Officer - recorded DD Ex.PW10/A (DD
Pradeep Kumar No.3A on information from No.3A), Ex.PW10/B to
wireless regarding committing Ex.PW10/D (copy of
of murder in front of Ravi FIR, endorsement
Nagar, Gurudwara, Khyala and made by him on rukka
FIR. and certificate under
Section 65B of Indian
Evidence Act issued by
him).
PW11 ASI Satpal Duty Officer - recorded DD Ex.PW11/A (Copy of
Singh No.42A on the basis of message DD No.42A)
FIR No.1192/2015
State Vs. Mohd. Akbar @ Guddu
Under Section 302 IPC Page No.9/48
Sessions Case No.56236/2016
received from brother of
deceased.
PW12 Sh. Pankaj He recorded the statements Ex.PW5/A, Ex.PW3/B
Arora, Ld. M.M. under Section 164 Cr.P.C. of and Ex.PW1/B
Masoom, Sourabh @ Rajesh (statements under
and Chunky Pandey. Section 164 Cr.P.C.);
Ex.PW12/A to
Ex.PW12/C (certificate
issued by him
regarding true and
correctness of the
narration of the facts
disclosed in the
statements);
Ex.PW12/D
(application for IO for
recording the
statement) and
Ex.PW12/E.
PW13 Insp. Visited the spot, took rough Ex.PW13/A (scaled
Mahesh Kumar notes and prepared scaled site site plan)
plan.
PW14 Dr. Jatin Conducted postmortem of the Ex.PW14/A
Bodwal, deceased. (postmortem report of
Specialist, deceased)
Department of
Forensic Medicine,
DDU Hospital
PW15 H.Ct. Prem MHC (M). Ex.PW19/A (relevant
Ram entry of Register
No.19); Ex.PW19/B &
Ex.PW19/C (RC
FIR No.1192/2015
State Vs. Mohd. Akbar @ Guddu
Under Section 302 IPC Page No.10/48
Sessions Case No.56236/2016
No.127/21/15 and
acknowledgement).
PW16 Ct. Jagdish He visited the spot alongwith IO Prasad and got registered the FIR.
PW17 Ct. He joined the investigation with Ex.PW17/A to Satyavert Khokhar the IO on 15.08.2015 Ex.PW17/C (arrest memo, personal search memo and disclosure statement of accused);
Ex.PW17/D (seizure memo of clothes of accused); Ex.PW17/E (pointing out memo of the spot by the accused); Ex.PW17/F (seizure memo of blood stained stone);
Ex.PW17/G (seizure
memo of blood stained
earth control and small
piece of stone);
Ex.PW17/H (seizure
memo of earth
control); Ex.PW17/I
(seizure memo of
hawai chappal) and
Ex.PW17/J (seizure
memo of blood sample
of accused). Witness
has also identified the
stone recovered by the
accused as
FIR No.1192/2015
State Vs. Mohd. Akbar @ Guddu
Under Section 302 IPC Page No.11/48
Sessions Case No.56236/2016
Ex.PW17/P1, clothes
of the accused as
Ex.PW17/P2 (Colly)
and hawai chappal.
PW18 ASI He joined investigation on He also proved the
Rajender Singh 15.08.2015 with IO and Ct. documents as proved
Satyavert. by PW17.
PW19 SI Kalyan Incharge of Mobile Crime Ex.PW19/A (scene of
Singh Team, inspected the spot and crime report).
prepared the scene of crime
report.
PW20 SI Veerpal Visted the spot on 14.08.2015
on receiving DD No.42A
alongwith Ct. Devender; met
with complainant Tipu Sultan
and one Masoom; received DD
No.3A about the same incident.
He deposed that SHO PS Tilak
Nagar also arrived at the spot
with Ct. Jagdish; lying of dead
body at the spot with injuries
marks; lying of blood stained
stones at the spot; reaching of
crime team there and recording
of statements of eye witnesses
by the IO and registration of
FIR.
PW21 Dr. Vineet, Deposed regarding MLC Ex.PW21/A (MLC of
CMO, DDU No.7327/2015 vide which Dr. deceased)
Hospital, Delhi. Naorem Bobo Singh, SR has
examined the patient Jishan on
15.08.2015 which was brought
FIR No.1192/2015
State Vs. Mohd. Akbar @ Guddu
Under Section 302 IPC Page No.12/48
Sessions Case No.56236/2016
dead in the casualty by the
police.
PW22 Insp. Raj Investigating Officer Apart from the
Kumar documents proved by
other witnesses, he
proved Ex.PW22/A
(endorsement made by
him on the complaint);
Ex.PW22/B &
Ex.PW22/C (site plans
of the spot);
Ex.PW22/D (request
for postmortem);
Ex.PW22/E (form
25.35 filled by him);
Ex.PW22/F (age memo
of accused);
Ex.PW22/G (death
report of deceased);
Ex.PW22/H (seizure
memo of clothes of
deceased and his blood
on gauze); Ex.PW22/I
(application vide
which the FSL report
was filed in the court).
Witness has also
identified the
Ex.PW17/P1,
Ex.PW17/P2,
Ex.PW4/P1,
Ex.PW4/P2, hawai
chappal seized from
FIR No.1192/2015
State Vs. Mohd. Akbar @ Guddu
Under Section 302 IPC Page No.13/48
Sessions Case No.56236/2016
the spot at the instance
of accused as
Ex.PW22/P1.
PW23 Ms. Imrana, She examined the exhibits of Ex.PW23/A (FSL
Sr. Scientific this case on 21.09.2015. report).
Officer (Biology), FSL, Rohini, Delhi.
5. On conclusion of the prosecution evidence, statement under Section 313 Cr.P.C. of accused was recorded on 05.03.2019 wherein all the incriminating evidence and documents on record against him were put to the accused to which his stand was of general denial. He claimed that he is innocent and had been falsely implicated in the case. No evidence has been led by the accused in his defence.
6. It is argued on behalf of State that the prosecution has successfully proved its case against the accused in view of the testimony of the witnesses examined and material produced, so, they be convicted.
On the other hand, Ld. counsel for the accused has argued that there is no material/incriminating evidence against the accused on record and the prosecution has failed to prove the case against FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.14/48 Sessions Case No.56236/2016 the accused beyond releasable doubt. It is further submitted that there is no recovery of weapon nor the accused has been identified or witnessed by any person committing the offence; the nature of evidence against the accused is merely hearsay; the witnesses examined by the prosecution has not supported its case. It is argued that the case of prosecution is not free from doubts and the benefit of such doubt is required to be given to the accused.
7. I have considered the arguments address by the Ld. Addl. PP for the State and the counsel for the accused. Record has also been perused.
8. In the present case, the accused has been charged for the commission of offence punishable under Section 302 IPC.In the first place, it requires to be determined as to whether the death of the deceased Jishan was homicidal.
9. PW21 Dr. Naorem Bobo Singh, SR, DDU Hospital, Delhi has examined the patient Jishan on 15.08.2015 vide MLC No.7327 Ex.PW21/A who was brought dead by the police under the supervision of PW21 Dr. Vineet, CMO, of the hospital. The FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.15/48 Sessions Case No.56236/2016 witness was not crossexamined.
PW14 Dr. Jatin Bodwal, Specialist, Department of Forensic Medicine, DDU Hospital has conducted the postmortem on the dead body of Mohd. Jishan, 18 years male brought by Insp. Raj Kumar vide postmortem report no.1079/2015 Ex.PW14/A. He deposed that there were five external injuries on the body of deceased and the time since death was about one to two days prior to the postmortem examination.
The following external injuries were noticed on the body of deceased by PW14 Dr. Jatin Bodwal as under:
External Examination:
(i) Contused lacerated wound of size of 2.5 cm x 0.5 cm x 0.5 cm, bone deep, was present on the left side of forehead, just above left eyebrow.
(ii) Contused lacerated wound of size of 2 cm x 0.5 cm x 0.5 cm, bone deep, was present on the right side of forehead, 2 cm above right eyebrow.
(iii) Contused lacerated wound of size of 0.5 cm x 0.25 cm x 0.25 cm, tissue deep, was present on the right side of forehead, 3 cm above right eyebrow.
(iv) Contused lacerated wound of size of 2cm x 0.25 cm x 0.25 FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.16/48 Sessions Case No.56236/2016 cm, tissue deep, was present on the right side of forehead, 2 cm above injury no.3.
(v) Contused lacerated wound of size of 4 cm x 0.5 cm x 0.5 cm, bone deep, and was present on the left temporal region, 2 above left mastoid process.
The opinion regarding the cause of death was due to head injury consequent upon blunt force, trauma to the head via injury no.5, which is sufficient to cause death in ordinary course of nature; all the injuries were caused by blunt force impact and ante mortem in nature.
During crossexamination, the witness deposed that injury no.5 found on the body of the deceased is possible from a fall from the height of second floor or above; the body was decomposed at the time of examination; there was no mud on the body of the deceased; the body was in earlier decompostion stage and the time since death mentioned in the PMR is approximate time and not exact time. The death of the deceased is not disputed. It is not the defence of accused as well that deceased committed suicide. The manner of death was homicidal. From the above, it is evident that the deceased died an unnatural death and his death was homicide.
10. It is a settled proposition of criminal law that prosecution is FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.17/48 Sessions Case No.56236/2016 supposed to prove its case by leading cogent, convincing, reliable and trustworthy evidence beyond reasonable doubt. The case of the prosecution has to fall or stand on its own legs and it can not drive any benefit from the weaknesses, if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubt never shifts and always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
It has been held in Sadhu Singh Vs State of Punjab 1997 (3) Crimes 55, that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal.
11. In Harbir Singh v. Sheeshpal & Ors. (2016) SCC 418, it was observed that it is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.18/48 Sessions Case No.56236/2016 beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted.
12. Accused is charged for the offence under Section 302 IPC for causing death of Mohd. Jishan on 13.08.2005 at about 06:00 pm. PW20 SI Vir Pal and PW4 Ct. Devender Singh upon receipt of DD No.42A dated 14.08.2015 Ex.PW11/A reached at Ram Nagar, DDA Park Jungle and met Tipu Sultan and Masoom; dead body of the deceased was lying there. On the basis of the statement of Tipu Sultan, FIR Ex.PW10/B was registered.
PW17 Ct. Satyavert Khokhar and PW18 ASI Rajender Singh joined the IO Insp. Raj Kumar/PW22 on 15.08.2015 and witnessed the apprehension and arrest of the accused vide arrest memo and personal search memo Ex.PW17/A and Ex.PW17/B. The witness also deposed regarding the disclosure statement of accused Ex.PW17/C and recovery of his blood stained clothes FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.19/48 Sessions Case No.56236/2016 which he was wearing at the time of incident seized vide memo Ex.PW17/D, recovery of the stone by which the murder was committed Ex.PW17/F and pointing out memo Ex.PW17/E. Admittedly, the public persons were present at the spot but no such person was joined into the investigation.
13. As regards the prosecution witnesses, PW2 (Mohd. Kamal), PW6 (Ct. Sunil), PW7 (SI Mohd. Haroon), PW9 (Ct. Lokender), PW10 (ASI Pradeep Kumar), PW11 (ASI Satpal Singh), PW12 (Sh. Pankaj Aora, Ld. M.M.), PW13 (Insp. Mahesh Kumar), PW15 (H. Ct. Prem Ram), PW16 Ct. Jagdish Prasad and PW19 SI Kalyan Singh are the formal witnesses who participated in investigation.
PW2 Mohd. Kamal i.e. the father of the deceased identified the dead body in DDU Hospital and after postmortem, received the same for cremation; PW6 Ct. Sunil took the photographs of the spot; PW7 SI M. Haroon on 02.09.2015 has deposited the parcels of weapon of offence i.e. stones in DDU Hospital for subsequent opinion after taking the same from MHC (M); PW9 Ct. Lokender on 21.09.2015 deposited the nine parcels with FSL Rohini; PW10 ASI Pradeep Kumar recorded DD no.3A in the intervening night of 14/15.08.2015 at about 12:03 am, on the basis FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.20/48 Sessions Case No.56236/2016 of message received from wireless operator regarding commission of murder in front of Ravi Nagar Gurudwara, Khayala and also got recorded the FIR of this case at about 03:10 pm; PW11 ASI Satpal Singh on 14.08.2015 at about 11:50 pm recorded DD No.42A on receipt of message from wireless operator regarding murder; PW12 Sh. Pankaj Aora, Ld. M. M. on 17.08.2015 has recorded the statements of the eye witnesses Masoom, Sourabh and Chunky Pandey under section 164 Cr.P.C.; PW13 Insp. Mahesh Kumar on 25.10.2015 inspected the spot, took rough notes and prepared the scaled site plan on 28.10.2015; PW15 H.Ct. Prem Ram, MHC (M) has proved the relevant entries of Register 19 vide which the case property were deposited with Malkhana on various dates and sent for examination; PW16 Ct. Jagdish Prasad visited the spot alongwith IO Insp. Raj Kumar and took the rukka to PS for registration of FIR; PW19 SI Kalyan Singh inspected the spot in the intervening night of 14/15.08.2015 and prepared the scene of crime report.
14. It is relevant to note that the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.21/48 Sessions Case No.56236/2016 evidence rather than on quantity, multiplicity or plurality of witnesses. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. As observed in Kuna @ Sanjaya Behera v. State of Odisha reported 2017 SCC Online Supreme Court 1336, the conviction can be based on the testimony of single eye witness if he or she passes the test of reliability and that is not the number of witnesses but the quality of evidence that is important.
15. The Apex Court in Veer Singh & Ors. Versus State of UP reported in (2014) 2 SCC 455, has observed that :
"17. Legal system has laid emphasis on value, weight and quality of evidence rather than on quantity multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the Law of Evidence that any particular number of witnesses is to be examined to prove/disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided Under Section 134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. (Vide: Vadivelu Thevar and Anr. V. State of Madras : AIR 1957 SC 614; Kunju @ Balachandran v. State of Tamil Nadu : AIR 2008 SC 1381; Bipin Kumar Mondal v. State of West Bengal :
AIR 2010 SC 3638; Mahesh and Anr. v. State of Madhya Pradesh : (2011) 9 SCC 626; Prithipal Singh and Ors. v. State of Punjab and Anr. : (2012) 1 SCC 10; Kishan Chand v. State of Haryana : JT 2013 (1) SC 222 and Gulam Sarbar v. State of FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.22/48 Sessions Case No.56236/2016 Bihar (Now Jharkhand) : 2013 (12) SCALE 504).
16. PW1 Chunky Pandey, PW3 Sourabh and PW5 Masoom have been examined as the eye witnesses of the incident by the prosecution. In view of the settled law, I shall now examine whether the evidence of the witnesses examined by the prosecution has a ring of truth, is cogent, credible and trustworthy or otherwise alongwith other witnesses examined by the prosecution to prove the case.
17. The testimony of the eye witnesses i.e. PW1 Chunky Pandey, PW3 Sourabh and PW5 Masoom and the complainant i.e. PW8 Tipu Sultan relied upon by the prosecution are reproduced as under:
PW1:
"I am doing a private job in a jeans factory at Britania Chowk, Near Punjabi Bagh, Delhi. I am permanent resident of Bihar. In the month of August, 2015 i.e. on the date of incident at about 45 pm, I alongwith my friends namely Sourabh, Mausoom, Mohd. Akbar @ Guddu were flying the kites in a DDA Park No.10. Thereafter we left from the park to our respective houses. After about 23 days, Police Officials came to our house and they took us to PS. We came to know in the PS that our friend namely Jisan had been murdered by someone. I do not know anything else about this case. I do not know as to who had committed the murder of my friend Jisan".FIR No.1192/2015
State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.23/48 Sessions Case No.56236/2016 PW3:
"I do not remember the date of incident. However, on that day, I alongwith my friends namely Guddu, Chunky Pandey and Masoom were flying the kite in DDA Park No.10. Deceased Mohd. Jisan alongwith his friend namely Bhura were also present in the park and they were smoking while sitting. After flying the kite, we left the park at about 033:30 p.m. After about 34 days, I came know about the murder of Jisan from the police officials and police called me at PS Tilak Nagar and made enquiry from me. I do not know as to who had committed the murder of Jisan. I do not know anything else about this case".
PW5:
"I do not remember the date. However, on the date of incident i.e. in the last year about 6/8 months back, I alongwith my friends namely Sourabh, Chunky Pandey and accused Mohd. Akbar, who is present in the Court today, were flying the kite in the DDA Park No.10, near Ravi Nagar behind Veer Enclave. At about 06:00 pm, we left from the park and Mohd. Jisan and his friend whose name I do not remember left there. We went to our respective houses. After 23 days, I came to know about the death of Mohd. Jisan. Police officials came to my house and took me to Police Post Tilak Nagar and they made enquiry from me. Thereafter, I left the Police Post to my house. Thereafter about 23 days, Police Officials came to my house and they brought me and my friends Chunky Pandey and Sourabh in Tis Hazari Courts. My statement was recorded by the Ld. M. M. Thereafter we left the Tis Hazari Courts. At this state, the statement recorded under Section 164 Cr. P. C. running into 5 pages which is Ex. PW5/A is shown to the witness and witness has correctly identified his signatures bears at page 2nd, 3rd and 4th at point A. I do not remember as to what I had stated to the Ld. M. M. I do not know as to how Mohd. Jisan has died. I also do not know as to who had killed him. I also do not know anything about this case".
PW8:
FIR No.1192/2015State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.24/48 Sessions Case No.56236/2016 "Deceased Mohd. Jisan was my younger brother and he was residing with me and family at the above said address. He was doing private job of flower decoration. On 13/14.08.2015, he had gone somewhere for the decoration of flower but he did not return upto the evening of 14.08.2015. On returning home from my job in the evening on that day, I came to know from my family member about the death of my younger brother Mohd. Jisan. I alongwith my other family members went to DDA Park Jungle, behind Meera Enclave near Ravi Nagar and found dead body of my younger brother Mohd. Jisan was lying there. My father and other family members had seen the same but I did not visit inside the jungle and I remained outside. Someone called the police and police arrived there and they removed the dead body of my brother from there. I was called in the PS and police made enquiry from me. I also went to DDU Hospital where I identified the dead body of my brother and IO recorded my statement in this regard which is Ex.PW8/A which bears my signatures at point A. My father Mohd. Kamaal had also gone to the hospital and he also identified the dead body of my brother Mohd. Jisan. After the postmortem, dead body of Mohd. Jisan was received by us for final rites. The statement Ex.PW8/B also bears my signatures at point A. I do not know as to who had killed my brother. I also do not know anything else about this case".
18. The above said witnesses were crossexamined by the Ld. Addl. PP but they did not utter anything against the accused. From their testimony, it appears that PW1, PW3 and PW5 did not support the prosecution case whereas the testimony of PW8 Tipu Sultan is mainly hearsay in nature. PW1, PW3 and PW5 even refuted their statements recorded under section 164 Cr.P.C. As the PW1, PW3, PW5 and PW8 examined by the prosecution did not depose anything incriminating against the accused, they were not FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.25/48 Sessions Case No.56236/2016 crossexamined by the defence.
19. It is vehemently argued on behalf of the prosecution that the testimony of the witnesses, who turned hostile, can also be relied and the testimony of the PW1, PW3 and PW5 is sufficient to prove the charge levelled against the accused. It is argued that evidence of a hostile witness is not effaced simply for the reason that the witness has not supported the prosecution. Such evidence can be relied upon to the extent it is consistent to the case of the prosecution.
20. I have considered the arguments by Ld. Addl. PP for the State and gone through the crossexamination of the witness.
In State v. Sonu Panjabi (2014) 146 DRJ 37, Hon'ble Delhi High Court disapproved the aforesaid manner of recording the cross examination of a hostile prosecution witness by the public prosecutor. The court observed as under: "78. Section 142 of the Indian Evidence Act, 1872 (EA) states that leading questions may not be put in examinationinchief except with permission of the Court. As noted above, the learned APP sought permission of the trial Court under Section 142 of the EA to put leading questions and permission was declined. The learned AAP did not seek permission of the trial Court to declare PW27 hostile and to crossexamine her. This was an important aspect of FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.26/48 Sessions Case No.56236/2016 the matter since the record in fact showed that the APP maintained at this stage that "the witness has substantially deposed the incident but she is forgetting the details". Therefore, from the point of view of the APP, the witness had not turned hostile and that is why he sought to ask leading questions under Section 142 EA.
79. Section 154 of the EA talks of permission being granted by the court in its discretion to the party who calls a witness, in this case the prosecution, to put questions to such a witness 'which might be put in crossexamination by the adverse party". In Sat Paul v. Delhi Administration 1976 Cri LJ 295, the Supreme Court observed that the words "hostile" and "adverse" in fact restrict the discretion of the court "and that it is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice." The Supreme Court in Sat Paul drew a distinction between the English law and the Indian law and observed that "faultiness of the memory in the case of such a witness would be another object of crossexamining and contradicting him by a party calling the witness". However, the Supreme Court did not dispense with the requirement of the party having to seek permission of the Court to put leading questions in the crossexamination of such witness. In Sri. Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233, the Supreme Court explained in what circumstances Section 154 EA could be invoked by the prosecution: "10..... Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to crossexamine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to crossexamine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be crossexamined by the party FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.27/48 Sessions Case No.56236/2016 calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention."
(emphasis supplied)
81. The above position was reiterated in Gura Singh v. State of Rajasthan (2001) 2 SCC 205 as under:
"Section 142 requires that leading question cannot be put to the witness in examinationinchief or in reexamination except with the permission of the Court. The Court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the Court in its discretion to permit the person who calls a witness to put any question to him which might be put in crossexamination by the adverse party. The Courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for crossexamination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness."
82. In Varkey Joseph v. State of Kerala 1993 Supp (3) SCC 745 :
AIR 1993 SC 1892, in the context of Section 142 EA the Supreme Court held that the prosecution should not allowed to put leading questions so as to lead the witness to say that what the prosecution intends. The Court observed:
"The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.28/48 Sessions Case No.56236/2016 investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and crossexamination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act are intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to crossexamination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed." (emphasis supplied)
83. Before proceeding to examine the position in the case at hand, the law explained in the above decisions of the Supreme Court may be summarized thus:
(i) Under Section 142 EA, the permission by the Court to a party to put leading questions to its witness has to be liberally exercised where the court thinks that the grant of such permission is expedient to extract the truth and to do justice.
(ii) Under Section 142 EA, the Court can permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. However, Section 142 EA does not give power to the prosecutor to put leading FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.29/48 Sessions Case No.56236/2016 questions on the material part of the evidence. The prosecutor shall not be allowed to frame questions in such a manner which the witness can answer merely by stating yes or no but he shall be directed to give evidence which he witnessed.
(iii) Section 154 EA gives discretion to the Court to permit the person calling a witness to put any question to him which might be put in crossexamination by the adverse party. However, such permission for crossexamination cannot and should not be granted at the mere asking of the party calling the witness.
(iv) For the purposes of Section 154 EA, a witness should be regarded as adverse and liable to be crossexamined by the party calling him "only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth." The said judgment was relied upon in judgment titled Umesh Kumar Vs State of NCT of Delhi 2017 SCC Online Del 11490. Para 25 of the said judgment is reproduced as under: "25. It may be recalled that the Addl. PP was permitted to cross examine PW9 only because he was, in his examinationinchief, resiling from the statement given by him previously to the police. The transcript of evidence thereafter had to record the fact that a particular sentence in the previous statement (Ex.PW9/B) was shown to the witness and asked whether in fact he had stated so earlier. The answer to such question in the affirmative or negative had to be then recorded. Instead, the transcript shows that PW9 simply agreed to all the suggestions given to him by the Addl. PP and his answers were recorded as his positive statements rather than a response to whether he had said so in his previous statement."
21. In the light of the aforesaid pronouncements and evidence on record, it is observed that these witnesses deposed nothing incriminating against the accused. Moreover, even during the crossexamination by the Ld. Addl. PP for the State, the witnesses FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.30/48 Sessions Case No.56236/2016 have not supported the prosecution story. The net result is that there is absolutely no evidence to show that any time prior to the death of the deceased, the accused was seen in his company and, in particular the accused has committed the homicide of the deceased.
22. An analysis of the evidence brought on record reveals that the testimony of the eye witnesses PW1, PW3 and PW5 is insufficient to prove the case against the accused beyond reasonable doubt. The witness not supported the prosecution case and his testimony does not inspire confidence. In A. Shankar v. State of Karnataka reported as (2011) 6 SCC 279, the Supreme Court held as under:
"23. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations as per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. "The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.31/48 Sessions Case No.56236/2016 Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M. P. (2010) 8 SCC 191; State of U. P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaropp & Anr. v. State of U. P., AIR 2011 SC 280].
24. Where the omission (s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material imprisonments before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106)." (emphasis added).
23. PW22 Insp. Raj Kumar/IO deposed that he reached at the spot after receipt of DD No.42A dated 14.08.2015 Ex.PW11/A and DD No.3A dated 15.08.2015 Ex.PW10/A, Tipu Sultan, Masoom and 10 to 15 other public persons were present; partially decomposed male dead body was found which was later on identified as Mohd. Jisan; pool of blood was lying at the spot and blood stained stones near the head of the deceased were also found. The witness was crossexamined at length and admitted that the statement of none of the 10 to 15 public persons was recorded; no public person was joined in the investigation at the time if seizure of the parcels of exhibits and the case property at the spot; public persons were available at the spot at the time of seizure of the case FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.32/48 Sessions Case No.56236/2016 property/exhibits. The witness further admitted that no public person was asked to join the investigation at the time of apprehension and arrest of the accused though it was a populated area and shop/residential houses were near the spot. No notice was served to the public persons who refused to join the investigation.
24. The prosecution relied upon the only incriminating evidence i.e. blood stained clothes seized supposedly worn by the accused at the time of the incident to link the accused in the crime. It is recalled that the blood stained clothes when sent to the FSL were found to have matched the blood group of the deceased Jisan in view of the testimony of PW23 Ms. Imrana, Sr. Scientific Officer (Biology), FSL, Delhi vide report Ex.PW23/A.
25. PW14 Dr. Jatin Bodwal has seized the blood stained clothes i.e. tshirt and jean pant of the deceased and handed over the same to PW7 SI Mohd. Haroon who seized the same vide seizure memo Ex.PW22/H. The accused was apprehended from in front of B 589, Khyala, Delhi at the instance of secret informer but during the evidence, PW1, PW3 and PW5 deposed that he has not seen who has caused injury to deceased. PW18 H.Ct. Rajender Singh and FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.33/48 Sessions Case No.56236/2016 PW17 Ct. Satyavert deposed that PW22 IO Insp. Raj Kumar seized the clothes of the accused vide seizure memo Ex.PW17/D which the accused was wearing at the time of incident. The seizure memo of the clothes of the accused Ex.PW17/D, his disclosure statement Ex.PW17/C and pointing out memo Ex.PW17/E are not signed by any of the public witness. The mere recovery of the blood stained clothes of the accused in the absence of any public witness can not be said to be a clinching circumstance that points to the unmistakable guilt of the accused.
26. It is settled position of law that the statements that are self incriminating and made by an accused while in custody are inadmissible in evidence being hit by Section 25 & 26 of Indian Evidence Act, 1872. Any statement made by the accused in police custody which relates to his culpability in the commission of crime is obviously self incriminating and therefore, inadmissible. Section 27 only permits so much of the fact that is discovered, while in custody of a police officer "as relates distinctly to the facts thereby discovered". In the present case, at the time of the so called disclosure statement was made by the accused, he was already in police custody and it is only thereafter that his disclosure statement FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.34/48 Sessions Case No.56236/2016 was recorded. The disclosure statement made by the accused cannot be relied accordingly being inadmissible in evidence and the same is clearly hit by Section 25 & 26 of the Evidence Act. The time of reporting of incident is mid night at about 11:51 pm on 14.08.2015 as deposed by IO/PW22 Insp. Raj Kumar; the accused was apprehended on 15.08.2015 at 07:00 pm but he had not destroyed his blood stained clothes appears to be unbelivable.
27. The report of the FSL Ex.PW23/A is not supported with the oral testimony of the material/eye witness i.e. PW1 Chunky Pandey, PW3 Sourabh and PW5 Masoom examined by the prosecution. With regard to the evidenciary value of the medical evidence, the Hon'ble Supreme Court in a very recent judgment titled as Balvir Singh v. State of Madhya Pradesh, (Crl. A. 1115/2010) decided on 19.02.2019, has specified that oral evidence always has supremacy over medical evidence as the latter can only be considered as opinionative in nature. Relevant part of the aforesaid judgment is extracted below:
"26. It is well settled that the oral evidence has to get primacy since medical evidence is basically opinionative. In Ramanand Yadav v. Prabhu Nath Jha and others (2003) 12 SCC 606, the Supreme Court held as under: "17. So far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.35/48 Sessions Case No.56236/2016 evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per the oral testimony , then only in a given case the court has to draw adverse inference."
The same principle was reiterated in State of U.P. v. Krishna Gopal and another (1988) 4 SCC 302, where the Supreme Court held "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".
In view of the above, the FSL report Ex.PW23/A and the testimony of PW1, PW3 and PW5 do not correlate the version of the prosecution.
28. In view of the fact that none of the eye witnesses examined by the prosecution i.e. PW1, PW3 and PW5 supported the case, the court needs some other reliable evidence on record in the form of testimony of some public witness to corroborate the case of the prosecution regarding the sequence of apprehension of accused and recovery effected but it is relevant to note that in the present case, there is no independent witness produced by the prosecution in support of its version of the manner of apprehension of accused. Accused Mohd. Akbar was apprehended at about 07:00 pm on 15.08.2015 from in front of B589, Khayala, Delhi. During FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.36/48 Sessions Case No.56236/2016 crossexamination, PW22 Insp. Raj Kumar admitted that some public persons were present when they reached in the street of the accused but neither the said persons nor any neighbour of the accused was joined in the investigation at the time of his arrest or recovery of blood stained clothes. It appears that the investigating agency did not make any sincere effort to join any public witness in the said proceeding. In cross examination, PW22 IO Insp. Raj Kumar has deposed that he had asked certain passersby to join the proceedings but they did not come forward. He further admitted that he did not give any notice to any of the public person.
In case titled as Ritesh Chakarvarty vs. State of Madhya Pradesh 2006 (3) JCC (Narcotics) 150, the Hon'ble Supreme Court has deprecated the practice of the investigating officials in not enquiring the names of the public persons who failed to join the proceedings on the request of the police officials. In two other judgments pronounced in the cases titled as Anup Joshi vs. State 1992 (2) CC cases 314 and Roop Chand vs. State of Haryana 1991 (1) CLR 69, it has been observed by Hon'ble High Court that failure to proceed against the public person who refused to join the investigation, is suggestive of FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.37/48 Sessions Case No.56236/2016 the fact that the explanation for non joining of witnesses from the public is an afterthought and is not worthy of credence. In the absence of any satisfactory and reliable reason forthcoming from the prosecution as to why the public persons were not included in the proceeding even after the apprehension of the accused, the case of the prosecution has become doubtful.
29. It is to be borne in mind that the most important aspect of any successful prosecution is clear establishment or proof of identity of the accused being the assailant who has committed the alleged offence. This aspect of identity becomes the most primordial when the accusation against the accused has been for present one. It is also stated to be first and most important connecting link in the chain of events which are required to be proved by the prosecution before it could take its case towards the other connecting links for the purpose of proving the ingredients with which accused persons have been charged with.
In Pankaj vs. State of Rajasthan reported in (2016) 16 SCC 192, wherein the Apex Court held that :
"It is a wellsettled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the Appellant was alleged to have fired at FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.38/48 Sessions Case No.56236/2016 the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence.
There is no clinching evidence on record to connect the accused with the crime in this case. The testimony of eye witnesses i.e. PW1, PW3 and PW5 is insufficient to prove the identity of the accused who has committed the offence.
30. Even the motive for the commission of crime has not been proved in view of the testimony of the witnesses examined by the prosecution in support of its case. In a case where the other circumstances have not been convincingly proved its becomes imperative for the prosecution to prove the motive for the crime as explained by the Supreme Court in Arjun Marik vs. State of Bihar; 1994 Supp (2) SCC 372 in the following words: "..........mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances along with the explanation of the accused, if any, exclude the reasonable possibility of anybody else being the perpetrator of the crime then the chain of evidence FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.39/48 Sessions Case No.56236/2016 may be considered to show that within all human probability the crime must have been committed by the accused".
31. The Ld. Addl. PP for the State submitted that the accused pointed out the scene of crime and pointing out memo Ex.PW17/E has been prepared which point to his guilt.
Ld. defence counsel submitted that the scene of crime was already known to the police before the arrest of the accused. He submitted that the scene of crime was not discovered at the instance of the accused. He further submitted that the accused did not get discovered any new fact pursuant to his pointing out memo and the pointing out memo is neither admissible under Section 27 of the Evidence Act nor Section 8 of the Evidence Act.
The arguments on behalf of the defence appears to have substance. Pointing out memo is neither admissible under Section 27 of the Evidence Act nor Section 8 of the Evidence Act. In Mahesh Chand v. State, Crl. A. No.160/2001 decided on 18.08.2009, the Hon'ble Delhi High Court dealing with such contention held as under:
"11. the fourth incriminating circumstance held established by the learned Trial Judge i.e. the appellant identifying the place where the dead body of the deceased was thrown is based on the ignorance of the fact that the dead body of the deceased was recovered much prior to the arrest of the appellant and the place FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.40/48 Sessions Case No.56236/2016 where it was thrown was thus obviously known to the police. The police taking the appellant to the same spot is neither admissible in evidence under Section 27 of the Evidence Act as no new fact got discovered. It is also not a relevant fact under Section 8 of the Evidence Act for the reason the alleged pointing out by the appellant cannot relate to conduct as there is no guarantee that the police, which knew the spot where the dead body was recovered, itself took the appellant to the said spot".
32. The criminal law process was put in motion by the call make to the PCR Room and subsequently recording of DD No.42A. It is reiterated that PW1, PW3 and PW5 are the eye witnesses/material witnesses examined by the prosecution did not support the case completely as they claimed that they have not seen the incident at all. It is noted that there is no recovery of any weapon of offence from or at the instance of accused used in this offence. It is noted that the recovery of blood stained clothes from the accused has not been proved convincingly by the prosecution as Ex.PW17/D (recovery memo of clothes) is not signed by any public witness whereas the recovery is claimed to be done from B584, Khyala, Delhi which is a public place and busy area. However, there is not a single witness/public witness on disclosure statement Ex.PW17/C and pointing out memo Ex.PW17/E. Even the arrest memo Ex.PW17/A of the accused is also not signed by any public FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.41/48 Sessions Case No.56236/2016 person. No attempt appears to have been made by the PW22 IO Insp. Raj Kumar to associate any member of the public to the arrest of the accused or recovery of his blood stained clothes. Considering the aforesaid facts and circumstances, the benefit of doubt arising out of such inefficient investigation, must be bestowed upon the accused.
33. It is settled law that if two views are possible, then the view which favours the accused should be adopted. The Apex Court in P. Satyanarayana Murthy v. The Dist. Inspector of Police and Ors. (2015) 10 SCC 152, wherein it has been held that if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. Relevant para whereof is being reproduced hereinbelow:
"25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam MANU/SC/0564/2013: (2013) 12 SCC 406 had 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. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused".
FIR No.1192/2015State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.42/48 Sessions Case No.56236/2016
34. In the case titled as Jose v. The SubInspector of Police, Koyilandy and Ors.: (2016) 10 SCC 519, the Apex Court has held as under:
"53. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or nonexistent but as entertainable by an impartial prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted".
35. An analysis of the evidence brought on record reveals that the testimony of the eye witnesses PW1, PW3 and PW5 is insufficient to prove the case against the accused beyond reasonable doubt. Moreover, the prosecution failed to prove the circumstances leading commission of this offence. The depositions by the prosecution witnesses therefore, do not inspire confidence. In A. Shankar v. State of Karnataka reported as (2011) 6 SCC 279 , the Supreme Court held as under:
FIR No.1192/2015State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.43/48 Sessions Case No.56236/2016 "23. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations as per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions."The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M. P. (2010) 8 SCC 191; State of U. P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaropp & Anr. v. State of U. P., AIR 2011 SC 280].
24. Where the omission (s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material imprisonments before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide: State of Rajasthan v. Rajendra Singh, (2009) 11 SCC 106)." (emphasis added).
36. In the facts and circumstances discussed above, nothing incriminating has been proved by the prosecution against the accused to bring home his guilt beyond reasonable doubt. Mere suspicion is not enough to bring home the guilt of the accused.
FIR No.1192/2015State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.44/48 Sessions Case No.56236/2016 In this context, the following observation of the Apex Court in Subhash Chand v. State of Rajasthan reported as (2002) 1 SCC 702 is relevant:
"Human nature is too willing when faced with brutal crimes, to spin stories out of strong suspicions. Between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict".
37. In the case of Sharad Birdhi Chand Shrda vs. State of Maharashtra reported in AIR 1984 SC 1622, the Apex Court has laid down the case text which are prerequisite before conviction should be recorded which are as under:
"The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances occurred 'must or should' and not 'may be' established;
the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, there should not be explainable on any other hypothesis expect that the accused is guilty;
the circumstances should be of conclusive nature and tendency;
they should exclude every possible hypothesis except the one to be proved; and 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".FIR No.1192/2015
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38. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. It is settled law that the burden of proof in a criminal trial never shifts and it is always on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It has been so held in Paramjeet Singh vs. State of Uttrakhand AIR 2011 Supreme Court 200.
39. In case titled Sohan and Another Vs. State of Haryana and Another (2001) 3 SCC 620 it has been observed by Hon'ble Supreme Court that :
"An accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty, is on the prosecution and that the prosecution has to establish its case beyond all reasonable doubts. In other words, the innocence of an accused can be dispelled by the prosecution only on establishing his guilt beyond all reasonable doubts on the basis of evidence".FIR No.1192/2015
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40. It is evident that PW1, PW3 and PW5 have exonerated the accused as he has not seen the incident. Rest of the witnesses examined by the prosecution are related to the investigation, arrest and seizure. There is no recovery of weapon of offence at the instance of accused. There is no evidence on record to connect the accused with the incident in question. The remaining witnesses examined by the prosecution were either the police officials or formal in nature and none of them was the witness of the incident in question. Even the other public witnesses who came to the spot after the incident had not been examined.
41. Keeping in view the settled law and the material available on record, this court is of the considered view that the prosecution failed to establish the case against the accused beyond reasonable doubt. None of the witnesses examined by the prosecution supported its case. There are fatal infirmities in the entire prosecution case. The entire genesis and the manner of the incident is doubtful and the entire story deserves to be rejected. It would not be safe to convict the accused and in these circumstances the accused would be entitled to benefit of doubt and acquittal from the charge framed against him. In view of the aforesaid discussions FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.47/48 Sessions Case No.56236/2016 and the materials available on record, I am of the considered view that the prosecution has failed to establish the circumstances in which the accused alleged to have killed the deceased. The testimony of the witnesses examined by the prosecution is insufficient to prove the involvement of the accused in the incident. As the prosecution has failed to bring home the guilt of the accused Mohd. Akbar, he is hereby acquitted of the charge for the commission of offence punishable under Section 302 IPC.
42. Family members of deceased Mohd. Jisan are hereby referred to District Legal Services Authority, West for consideration of suitable compensation amount.
43. In view of Section 365 Cr. P. C., a copy of the judgment be also sent to District Magistrate concerned for information.
44. Personal bond in terms of Section 437A Cr.P.C. furnished on behalf of the accused shall remain in force for a period of six months from today. The previous personal bond and surety bond, if any, of the accused are discharged. Their documents, if any, retained on record be released to them against FIR No.1192/2015 State Vs. Mohd. Akbar @ Guddu Under Section 302 IPC Page No.48/48 Sessions Case No.56236/2016 acknowledgement.
45. Case properties are confiscated to State. If no appeal is preferred by the prosecution against the acquittal of the accused persons within the prescribed period of limitation, the case properties be disposed off as per rules.
46. File be consigned to Record Room after necessary compliance. Digitally signed by Gorakh Gorakh Nath Nath Pandey Date: 2019.09.11 Pandey 16:20:36 +0530 Announced in the open court (Gorakh Nath Pandey) on 05.09.2019 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi.
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