Delhi District Court
State vs Subhash Sahoo on 25 August, 2023
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE -04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET01-004389-2016
SC No. 1854/2016
State v. Subhash Sahoo
FIR No. 1449/2015
U/S 302 IPC
PS: Shakarpur
In the matter of :
State
versus
Subhash Sahoo,
S/o Laxmi Narain Sahoo,
R/o c/o Pradeep Sahoo,
Near Gate No. 5, Shipra Sun City,
Indirapuram, Ghaziabad, UP.
Date of Institution : 04.04.2016
Date of reserving Judgment : 21.08.2023
Date of pronouncement : 25.08.2023
Appearance
For the State : Sh. Ajit Kumar Srivastava,
Addl. Public Prosecutor.
For accused : Sh. Rishi Chawala,
Legal Aid Counsel.
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JUDGMENT
1) Briefly stated facts of the case are that on 04.07.2015 at about 2.07 am, information was received at PS Shakarpur regarding a PCR call that "Shakarpur Laxmi Nagar se mother dairy ki taraf jate hue flyover ke upar, ek aadmi injured pada hai" i.e. a person was lying in injured condition on flyover going towards Mother Dairy from Shakarpur Laxmi Nagar. The said information was recorded vide DD No. 10B. The said DD was assigned to SI Arvind Kumar. Insp. Hari Singh alongwith Operator Const. Dhirender and driver Ct. Arun also went to the spot. On receiving DD from Ct. Rahul, SI Arvind went to the spot i.e. over Railway Flyover while going from Laxmi Nagar to Mother Dairy side, where he found blood on the road and footpath. On the footpath one cycle was standing and on road one pair of slippers were found lying. IO/SI Arvind was informed that the injured had already been taken to LBS Hospital by PCR van. IO deputed Const. Rahul at the spot to safeguard it and went to LBS Hospital where the injured was declared brought dead. IO collected the MLC of deceased and IO came to know that the name of the deceased was Kamlesh Kumar Yadav. The Duty Constable handed over a sealed parcel containing clothes of the deceased, which were seized by the IO alongwith sample seal of LBS Hospital vide seizure memo Ex. PW15/A. The Duty Constable also handed over Rs. 1504/- (three notes of Rs. 500/- each and one of them having blood stains, and two coins of Rs. 2 each) Ex. P-5(colly) to the IO alongwith one blood stained visiting card Ex. P-6, which were also seized by the IO/SI SC No. 1854/2016 Page 2 of 44 ASJ04(East)/KKD Courts/Delhi Arvind Verma vide seizure memo Ex. PW 15/B. The SHO alongwith other police staff also reached at the hospital. One Manoj, son of deceased, also met with the IO at the hospital and he was inquired by the SHO. The dead body was shifted to the mortuary. Thereafter, IO went to the spot where no eye witness was found. Crime team was called and the photographs of the spot were taken. Nine photographs of the spot are Ex. PW10/A1 to Ex. PW10/A9 and photographs of the dead body are Ex. PW10/B1 to Ex. PW10/B4. SI Arvind Kumar prepared a rukka and handed it over to Const. Rahul for registration of the FIR. On the basis of rukka, the present FIR bearing no. 1449/2015 was registered u/s 302 IPC on 04.07.2015. Further investigation was handed over to SHO/Insp. Nipun Kumar. Ct. Rahul returned to the spot and handed over the rukka to Insp. Nipun Kumar as the computer was not working at the PS so computer generated copy of FIR could not be handed over to him. During investigation, at the instance of SI Arvind Kumar, the site plan was prepared by the IO/Insp. Nipun Kumar vide Ex. PW21/A. The bicycle (Ex. P-
7) found at the spot was seized vide seizure memo Ex. PW15/D. Pair of Chappal (Ex. P-4) was seized by the IO after converting it into a cloth parcel and seized vide seizure memo PW15/E. Blood sample (Ex. P-9), blood stained earth (Ex. P-8) and earth control (P-10) were also taken from the spot and kept in transparent plastic containers and converted into sealed parcels and seized vide seizure memo Ex. PW15/F.
2) IO filled up form no. 25.35(1)(b) vide Ex. PW21/B. SC No. 1854/2016 Page 3 of 44 ASJ04(East)/KKD Courts/Delhi The dead body of the deceased was identified by the brother of the deceased namely Dalel Singh and Manoj Kumar, son of the deceased, vide Ex. PW1/A and PW1/B respectively. IO made a request for postmortem of deceased Kamlesh Kumar Yadav vide Ex. PW21/C. Postmortem was got conducted and after postmortem dead body of the deceased was handed over to his son vide Ex. PW1/B. After postmortem the doctor handed over four sealed parcels, which were seized by the IO vide seizure memo Ex. PW13/A. During investigation, IO made inquiries from Incharge PCR van HC Mehar Singh, who took the injured to LBS Hospital from the spot, who informed that when he reached the spot, one eye witness Mamta met him and she had also disclosed her particulars. IO made search for the accused and alleged eye witness Mamta.
3) On 09.07.2015 IO alongwith Beat Constable Manmohan apprehended accused Subhash Sahoo at Railway Lines near Mandawali and the accused was found in possession of a big knife. The accused was arrested vide arrest memo Ex. PW14/B, his personal search was conducted vide Ex. PW14/C, the knife was seized vide seizure memo Ex. PW14/A. The IO prepared sketch of the knife vide Ex. PW21/D. IO recorded disclosure statement of the accused vide Ex. PW14/E. IO prepared the pointing out memo of the place of occurrence at the instance of the accused vide Ex. PW14/D. IO also prepared the pointing out memo of the place where the accused used to sell watermelons, at the instance of the accused, vide pointing out SC No. 1854/2016 Page 4 of 44 ASJ04(East)/KKD Courts/Delhi memo Ex. PW16/C. Thereafter IO and the other police officials went to rented accommodation of elder brother of accused Subhash Sahoo i.e. house of Phool Singh, village Behlolpur, Sector 63, Noida, UP, where accused Subhash Sahoo pointed out to the room on the ground floor on the left side. The said room was opened with the keys given by the maternal aunt of accused Subhash Sahoo. Thereafter accused Subhash Sahoo opened the lock of the room and he took out one pant and one shirt worn by him on the date of incident, which were seized by the IO vide seizure memo Ex. PW7/A. One public witness namely Umesh signed as a witness on the seizure memo of the clothes and IO recorded his statement. IO recorded supplementary disclosure statement of accused vide Ex. PW16/A. The accused also told the IO that after the incident he went to one kiosk of egg parantha near Mother Dairy, Ravidass Jhuggi-Jhopri Camp and at his instance the IO prepared pointing out memo Ex. PW16/B. Accused was got medically examined at LBS Hospital and thereafter taken to lock-up.
4) IO searched for eye witness Mamta but was unable to find her. On 19.07.2015 IO after searching for eye witness Mamta, found her at a rented accommodation at Mandawali. She told the IO that she had seen a person stabbing the victim. IO recorded her statement and moved an application for judicial TIP. On 29.07.2015 TIP of accused was conducted in which Mamta correctly identified accused Subhash Sahoo. The TIP proceedings are Ex. PW3/A. The blood sample of accused SC No. 1854/2016 Page 5 of 44 ASJ04(East)/KKD Courts/Delhi Subhash Sahoo was seized vide seizure memo Ex. PW13/B. The exhibits were sent to FSL for their evaluation and analysis. The knife was sent for subsequent opinion from the doctor, who had conducted postmortem on the dead body of the deceased.
5) After completion of the necessary investigation, charge-sheet was filed in the present case u/s 302 IPC against accused Subhash Sahoo.
6) On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Court, took cognizance of offence under Section 302 IPC and after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 28.03.2016 committed the case to the Court of Session for 04.04.2016.
Charge :
7) After hearing the learned Additional Public Prosecutor for the State and Legal Aid Counsel for the accused, charge was framed against the accused for commission of offence punishable under Section 302 IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
Prosecution Evidence :
8) In order to prove its case, the prosecution examined following witnesses :
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(i) PW1 Dalel Singh - brother of deceased, who identified the dead body of the deceased Kamlesh Kumar Yadav vide identification memo Ex. PW1/A. After postmortem the dead body was handed over to them.
(ii) PW2 Manoj Kumar, son of deceased, who deposed that his father used to sell 'Kulfi' in Krishna Nagar area since last 20 years. In the intervening night of 3/4.07.2015 at about 01.30 am SI Devender, who was his neighbour, came to his house and told them that someone had stabbed his father at Railway Flyover and he was lying there. PW2 alongwith his family members and SI Devender reached at Railway Flyover where they came to know that PCR van had shifted his father to LBS Hospital.
When they reached LBS Hospital, they came to know that his father had already died. He identified the dead body of the deceased Kamlesh Kumar Yadav vide identification memo Ex. PW2/A. After postmortem the dead body was handed over to him vide memo Ex. PW2/B.
(iii) PW3 Mamta @ Muskan - public witness.
(iv) PW4 Purshottam Kumar - 100 number caller. He deposed that in the intervening night of 3/4.07.2015 at about 01.30-2.00 am he was returning from Connaught Place on a motor-cycle after his duty. His friend Rohit was the pillion rider on his motorcycle. When they reached Railway Flyover near Pandav Nagar, Ganesh Nagar, he saw one person lying in injured SC No. 1854/2016 Page 7 of 44 ASJ04(East)/KKD Courts/Delhi condition on the footpath. One cycle was also lying there. Some public persons were also gathered there. He informed the police at 100 number from his mobile no. 9958132737. The injured was bleeding. One lady was present there and was saying that the injured was stabbed by a person, who had run away towards the Railway Line. PCR came there and the injured was taken to hospital by PCR staff. Thereafter he left the spot.
(v) PW5 Sushil Kumar - public witness, who identified the injured as Kamlesh Kumar Yadav at the spot being his neighbour. He went to the house of Kamlesh Kumar Yadav and informed his son and wife and thereafter they came to the spot but by that time Kamlesh Kumar Yadav had been removed to hospital by PCR.
(vi) PW6 Sanjay, who was running a tea shop and one day police came to his shop alongwith accused and accused pointed out at his shop from where he had taken chai parantha some days ago. He deposed that accused had come to his shop and had taken chai parantha some days ago during night hours but he did not recollect the exact time and date.
(vii) PW7 Umesh, who deposed that on 09.07.2015, at about 06.00 pm four police officials alongwith accused came to his house and on asking of police PW7 informed that elder brother of accused namely Raju was residing as a tenant in house of his uncle Phool Singh. Thereafter he alongwith police officials SC No. 1854/2016 Page 8 of 44 ASJ04(East)/KKD Courts/Delhi and accused went to the rented room of Raju located in Behlolpur and they took key of room from maternal aunt of accused, who resided in a room by the side of the room of Raju and on opening the room, accused took out a pant of grey colour and a shirt of brinjal colour having stripes which were lying among other clothes in the room and which had blood spots and police seized the same vide memo Ex. PW7/A. He identified the shirt Ex. P-1 and pant Ex. P-2.
(viii) PW8 Const. Amit Singh deposed that on 04.07.2015 he was posted at PCR (PHQ) to receive call on 100 number and at about 02:04 am he received a call from phone no. 9968132737 to the effect that "Shakarpur Se Laxmi Nagar Mother Dairy Ki Taraf Jate Hue Flyover Ki Taraf Ek Aadmi Injured Pada Hai", which is recorded in Form No. 1 Ex. PW8/A and he transmitted the information to Romeo Net.
(ix) PW9 SI Sanjay Saxena - Crime Team Incharge, who alongwith Ct. Sat Narayana (Finger Print Professional) and HC Sanjeev (photographer) inspected the report. Spot was got photographed. They also went to mortuary, LBS Hospital, where dead body was also photographed. He prepared Scene of Crime Report (SOC report) bearing no. 879/15 Ex. PW9/A.
(x) PW10 ASI Sanjiv, who was member of Crime Team, got the spot photographed as well as the dead body in the mortuary of LBS Hospital. He proved the photographs of the SC No. 1854/2016 Page 9 of 44 ASJ04(East)/KKD Courts/Delhi spot Ex. PW10/A1 to A9 and photographs of dead body Ex. PW10/B1 to B4 and negatives of photographs Ex. PW10/C1 to C15.
(xi) PW11 Ct. Rahul Kumar - part of investigation. He deposed that on 04.07.2015 DD No. 10B regarding an information about lying of an injured person at the flyover going towards Mother Dairy from Laxmi Nagar side, was handed over to him by Duty Officer, which he delivered to SI Arvind Verma. Then he alongwith SI Arvind Verma reached at the spot and found one bicycle was standing there and blood was also lying there. SI Arvind Verma left him at the spot and went to LBS Hospital. SI Arvind Verma came back to the spot and informed that injured succumbed to injuries. SI Arvind Verma prepared the rukka and sent him for registration of FIR. He went to police station where Duty Officer HC Narender Kumar registered FIR, however, FIR could not be submitted in computer system and as such HC Narender handed over original rukka to him at 05.05 am to deliver it to Insp. Nipun Kumar. PW11 went back to the spot and handed over rukka to IO/Insp. Nipun Kumar and informed him that copy of FIR will be delivered later on.
(xii) PW12 ASI Ram Mehar, who was on duty on PCR Van R-34 as Incharge in East Zone. At about 02.07 am he received information from the Control Room that a person was lying in injured condition on the flyover going from Laxmi Nagar towards Mother Dairy. He reached the spot in the PCR SC No. 1854/2016 Page 10 of 44 ASJ04(East)/KKD Courts/Delhi van. He found an injured person lying on the footpath and a bicycle was also lying on the road. Blood was oozing out from the chest of the injured. Six to seven public persons were also present there. Out of them, one lady disclosed her name as Mamta resident of Ghaziabad. She informed that a young boy stabbed the injured with a knife and went towards Railway Line after descending the flyover. PW12 took the injured to LBS Hospital in PCR van with help of his staff, where injured was declared brought dead by the doctor. SI Devender Kumar alongwith Manoj Kumar, son of injured, came there, who identified the injured as his father Kamlesh Kumar Yadav. He communicated the information to Control Room. SHO PS Shakarpur and other police officials also reached the hospital and IO instructed him to reach the spot and at the spot IO made inquiries from him.
(xiii) PW13 Const. Vikrant joined investigation with IO/Insp. Nipun on 04.07.2015 and went to LBS Hospital. He deposed that after postmortem on dead body of Kamlesh Kumar Yadav, his dead body was handed over to his son Manoj Kumar. Doctor handed over clothes and other samples of deceased in duly sealed condition alongwith sample seal to IO, which were seized by IO vide memo Ex. PW13/A. PW13 further deposed that on 10.08.2015 he alongwith IO/Insp. Nipun Kumar took accused Subhash Sahoo to LBS Hospital, where blood in gauze of accused was collected by the doctor and same was handed over to IO by doctor in sealed condition and IO seized the same SC No. 1854/2016 Page 11 of 44 ASJ04(East)/KKD Courts/Delhi vide seizure memo Ex. PW13/B.
(xiv) PW14 HC Manmohan - part of investigation including arrest of accused Subhash Sahoo on 09.07.2015 vide arrest memo Ex. PW14/B and personal search memo Ex. PW14/C. A knife Ex. P-3 was also recovered from the accused, which was seized by the IO vide seizure memo Ex. PW14/A. PW14 further deposed that accused pointed out place of incident vide pointing out memo Ex. PW14/D. PW14 deposed that accused also got recovered his clothes i.e. shirt Ex. P-1 and Pant Ex. P-2, which he was wearing at the time of incident, from the rented accommodation of his brother, which were seized by the IO vide memo Ex. PW7/A. He further deposed that accused made disclosure statement Ex. PW14/E and he was also got medically examined at LBS Hospital.
(xv) PW15 SI Arvind Verma - Initial IO of the case, who deposed that on the intervening night of 03/04.07.2015 he received a call from the Duty Officer HC Narender at about 02.10 am that one person was lying on the flyover near Ganesh Nagar, Mother Dairy, in injured condition. When he reached on the gate of police station, Ct. Rahul handed over him copy of DD No. 10B dated 04.07.2015. Then he alongwith Const. Rahul reached at the spot and noticed blood on the road and on footpath. One pair of chappal was also lying on the road and one bicycle was also found on the footpath. He came to know that injured was taken to LBS Hospital by PCR Van. He deputed Ct.
SC No. 1854/2016 Page 12 of 44 ASJ04(East)/KKD Courts/Delhi Rahul at the spot to safeguard and went to LBS Hospital where he came to know that injured Kamlesh Kumar was declared brought dead. He collected MLC of deceased. Duty Constable handed over to him sealed parcels containing clothes of deceased alongwith sample seal of hospital, which he seized vide memo Ex. PW15/A. Duty Constable also handed over him Rs. 1504/- and one blood stained visiting card, which he seized vide memo Ex. PW15/B. Dead body was shifted to mortuary. He prepared a rukka and sent Ct. Rahul to police station for registration of FIR. Crime Team was called at the spot and got the spot photographed. SHO and Insp. Nipun Kumar came at the spot and he handed over seizure memo alongwith case property and MLC to him. IO prepared site plan. Bicycle and a pair of chappal were seized vide seizure memos Ex. PW15/D and Ex. PW15/E respectively. Blood sample, blood stained earth and earth control were also taken from the spot, sealed and seized vide memo Ex. PW15/F. (xvi) PW16 HC Niranjan Singh - part of investigation with IO/Insp. Nipun Kumar. He deposed that on 10.07.2015 IO/Insp. Nipun Kumar interrogated accused Subhash Sahoo and recorded his disclosure statement Ex. PW16/A. Accused also pointed out the tea shop from where he ate egg paranthas on the night of incident after committing offence vide pointing out memo Ex. PW16/B. Accused pointed out a fruit cart situated near Gate No. 5, Shipra Sun City, Indirapuram, Ghaziabad, where he slept after committing the offence and kept weapon of offence SC No. 1854/2016 Page 13 of 44 ASJ04(East)/KKD Courts/Delhi i.e. knife there vide pointing out memo Ex. PW16/C. (xvii) PW17 Ct. Omjeet - part of investigation. He deposed that on the intervening night of 03-04.07.2015 he was posted at LBS Hospital and at about 02.40 am one PCR brought one injured in the hospital and injured was declared brought dead by the doctor. Doctor handed over his sealed pullanda containing shirt and baniyan/vest of deceased as well as Rs. 1504/- and a visiting card of Farid Pahalwan, which he handed over to the IO/SI Arvind, who seized the same vide seizure memos Ex. PW15/A and PW15/B respectively.
(xviii) PW18 Insp. Mahesh Kumar- proved scaled site plan Ex. PW18/A. (xix) PW19 HC Satbir Singh, who deposed that on 21.08.2015 he took sealed exhibits vide RC No. 137/21/15 to FSL Rohini and deposited the same there and handed over acknowledgement in this regard to MHC(M).
(xx) PW20 ASI Kanwar Pal - part of investigation including recovery of the clothes i.e. pant and shirt of the accused Subhash Sahoo from the house of his brother Raju situated at Village Behlolpur, Sector-63, Noida, UP, vide seizure memo Ex.
PW7/A. (xxi) PW21 Insp. Nipun Kumar - IO of the case. SC No. 1854/2016 Page 14 of 44 ASJ04(East)/KKD Courts/Delhi (xxii) PW22 Dr. Vinay Kumar Singh, who proved the
postmortem report Ex. PW22/A. He also proved proforma of weapon examination and subsequent opinion in relation to postmortem no. 254/2015 dated 04.07.2015 of deceased Kamlesh Kumar Yadav and the sketch of weapon made by him as Ex. PW22/B (xxiii) PW23 ASI Brajender Singh - MHC(M). He proved entries in register no. 19 at Serial Nos. 4993 dated 04.07.2015, 5004 dated 09.07.2015 and 5065 dated 10.08.2015 as Ex. PW23/A, PW23/B and PW23/C respectively. He also proved Road Certificates no. 123/21/15 dated 29.07.2015 and 137/21/15 dated21.08.2015 as Ex. PW23/D and Ex. PW23/E respectively.
(xxiv) PW24 Dr. Garima Chaudhary, who proved the FSL report (Bio/DNA) Ex. PW24/A.
9) During trial, on 22.02.2022 Ld. LAC for accused did not dispute genuineness of FIR No. 1449/2015 of PS Shakarpur (Ex. C-1), Certificate u/s 65(B) of Indian Evidence Act issued by HC Narender Kumar (Ex. C-2), DD No. 10B dated 04.07.2015 (Ex. C-3), MLC No. 9848 dated 04.07.2015 (Ex. C-
4), TIP proceedings conducted by Ld. M.M. (Ex. C-5), DD No. 11B dated 04.07.2015 (Ex. C-6), DD No. 6A dated 04.07.2015 (Ex. C-7) and DD No. 7A dated 04.07.2015 (Ex. C-8).
SC No. 1854/2016 Page 15 of 44 ASJ04(East)/KKD Courts/Delhi Statement of accused :
10) After conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he is innocent and has been falsely implicated in this case by the IO only to solve the present case. He deposed that police never took him to rented house of his brother and case property has been planted upon him. He further deposed that during TIP PW3 Mamta identified him at the instance of IO and his photograph has already been shown to PW3 by the IO. He did not wish to lead any evidence in his defence.
11) It is contended by Ld. Counsel for the accused that the purported sole eye witness of the incident PW3 Mamta is a planted witness. It is stated that though in the statements of the witnesses Mamta is stated to be a resident of Ghaziabad, however, PW3 Mamta, who deposed before the court, was a resident of Mandawali, Delhi, and hence PW3 Mamta who was examined before the court was not the actual eye witness of the incident. It is further stated that the recoveries have been planted upon the accused. It is stated that it is unbelievable that the accused would be carrying a blood stained knife with him after five days of the incident at the time of his arrest on 09.07.2015.
It is urged that the knife has been planted upon the accused. It is also urged that the blood stained shirt and pants have been planted upon the accused in order to implicate the accused in a SC No. 1854/2016 Page 16 of 44 ASJ04(East)/KKD Courts/Delhi false case to solve a blind murder case. It is also urged that though the accused was arrested on 09.07.2015 his TIP was conducted on 29.07.2015 after showing the accused/his photographs to PW Mamta. It is stated that the accused has been falsely implicated in the present case by the police and therefore, the accused is liable to be acquitted of the charges framed against him.
12) On the other hand, it is contended on behalf of the prosecution that the testimony of PW3 Mamta, who was an eye witness to the incident, coupled with medical and forensic evidence on record proves that the accused is liable to be held guilty for the offence he is charged with. It is further argued that the weapon of offence i.e. knife and blood stained clothes of the accused were recovered pursuant to the disclosure statement of the accused. As per the FSL result Ex.PW24/A, the blood stains on the shirt recovered at the instance of the accused and the blood stains on the knife recovered at the instance of the accused matched with the DNA profile of the deceased and thereby connecting the accused with the offence in issue. It is urged that the cumulative impact of the evidence led by the prosecution clearly indicates culpability of the accused and the accused is therefore liable to be held guilty for the offence of murder which he has been charged with.
13) I have heard the arguments of the Ld. LAC for the accused and Ld Addl.PP for the State and perused the record as SC No. 1854/2016 Page 17 of 44 ASJ04(East)/KKD Courts/Delhi well.
Testimony of eye witness :
14) PW3 Mamta @ Muskan deposed that in the intervening night of 3/4.07.2015 at about 02.00 am she was present at Railway Bridge near Mother Dairy. She saw one old person coming on a cycle from Laxmi Nagar side. When that person reached on the Railway Bridge, another person, who was already standing there, stopped the cycle of that old person and kicked the cycle. An argument took place between both the persons. That person took out a knife from his pant and stabbed on the chest of the old man. Thereafter he took out something from the pocket of the shirt of that old man. Thereafter he showed a knife to PW3 and told her to leave the spot otherwise he would also stab her. Thereafter he ran towards the railway line. PW3 identified accused Subhash Sahoo, who was present in court, as the person, who stabbed that old man on the night of incident. PW3 deposed that some passersby also gathered there. Someone informed the police. She gave her address to the PCR police. On 29.07.2015 she identified the accused in TIP at Tihar Jail.
15) In her cross-examination she deposed that she was illiterate. She was married and was a housewife. On 03/04.07.2015 PW3 was residing at Rahul Vihar, Ghaziabad. She deposed that on 03/04.07.2015 at about 12.00 mid night she was coming alone from Bangla Sahib Gurudwara. She had not stated SC No. 1854/2016 Page 18 of 44 ASJ04(East)/KKD Courts/Delhi the said fact to the police in her statement. She denied that she was not present at the spot and therefore she had not mentioned about her visit to Bangla Sahib Gurudwara to the police. She further deposed that she had come from Bangla Sahib in an auto upto Laxmi Nagar and alighted there at around 01.45 am. She had left the auto near Metro Gate No. 2, Laxmi Nagar. She reached her house at around 02.30 am by auto. Her husband did not come to pick her up. She came to know after 5-6 days that police was searching for her. Police first met her at V3S Mall after 5-6 days in the afternoon but she did not remember the date and police recorded her statement. Her thumb impression was taken on her statement but she did not sign it. She denied the suggestion that she did not witnessed the alleged incident. She also denied that she was shown the face of the accused in the police station and also shown the photograph of the accused before TIP proceedings and denied that she had identified the accused in the TIP proceedings at the instance of the IO. She denied that she was a tutored and a planted witness.
16) It is contended by ld. Counsel for the accused persons that PW3 Mamta is a planted witness and she had not witnessed the incident. Her statement was recorded by the IO on 19.07.2015 whereas the incident took place on the intervening night of 3/4.07.2015 and hence more than 15 days after the incident. There was sufficient opportunity to plant her as a witness and hence her testimony cannot be relied upon to hold the accused guilty for the offence.
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17) It is relevant to note that a call was made at 100 number by PW4 Purshottam Kumar from his mobile no. 9958132737. PW4 was returning from his work from Connaught Place on his motor-cycle alongwith his friend Rohit in the intervening night of 3/4.07.2015 at about 1.30 - 2.00 am. Upon seeing a person lying in an injured condition on the footpath, he informed the police at 100 number. Pertinently he also deposed that a lady was present there and who was saying that the injured was stabbed by a person, who had run away towards Railway Line. PW4 also witnessed that PCR came at the spot and removed the injured to hospital.
18) It is also noteworthy that the statement of PW4 Purshottam Kumar was recorded by the IO u/s 161 Cr.P.C. on 16.07.2015 in which PW4 has also mentioned regarding the fact that one lady was standing at the spot, who told to the PCR staff that she had seen a man stabbing the injured and thereafter said boy man away towards Railway Line. As per the testimony of the IO, the statement of eye witness Mamta was recorded u/s 161 Cr.P.C. on 19.07.2015 and hence prior to recording of her statement, the statement of PW4 had already been recorded and he had already stated to the police regarding presence of a lady at the spot, who claimed herself to be an eye witness.
19) In this regard Incharge PCR van PW12 ASI Ram Mehar, who reached the spot upon receipt of information SC No. 1854/2016 Page 20 of 44 ASJ04(East)/KKD Courts/Delhi deposed that when he reached at the spot in the PCR van, he found an injured person lying on the footpath and six to seven public persons were present there. One lady, who disclosed her name as Mamta resident of Ghaziabad informed that a young boy stabbed the injured with a knife and went towards Railway Line after descending the flyover. PW12 took the injured to LBS Hospital in PCR van with help of his staff. The statement of PW12 Ram Mehar was recorded by the IO on 04.07.2015 wherein also he had mentioned regarding a lady Mamta resident of Ghaziabad, who had witnessed the incident.
20) It is manifest from the testimony of PW4 and PW12 that a lady namely Mamta had witnessed the incident of stabbing by a man. She informed about the same to the police i.e. PW12 ASI Ram Mehar, Incharge PCR Van. Hence, both PW4 and PW12 have deposed regarding presence of a lady namely Mamta at the spot and that she stated that she had witnessed the incident herself.
21) It is contended by ld. Counsel for the accused persons that the presence of PW3 Mamta at the spot is doubtful as the only information available with the IO as regards PW Mamta was that she was a resident of Ghaziabad, whereas PW3 Mamta is a resident of Mandawali. It is urged that it is not possible for the IO to have located PW Mamta only when her name and her place of residence as Ghaziabad was known to the IO. He cross-examined the IO in this regard and it is deposed by SC No. 1854/2016 Page 21 of 44 ASJ04(East)/KKD Courts/Delhi PW21 IO that he had recorded the statement of PW Mamta on 19.07.2015. He had called her at Laxmi Nagar Metro Station and from there she was brought to the police station. He did not know who provided her mobile number. He stated that he was not aware of Ghaziabad address of PW Mamta and was aware of her address at Nalanda Chowk, Mandawli, where she was residing on 19.07.2015. He deposed that he deputed a secret informer to apprise about Mamta resident of Ghaziabad and from him he came to know about PW3 Mamta resident of Mandawali. The secret informer could not locate the address of Mamta resident of Ghaziabad. He denied the suggestion that PW Mamta resident of Ghaziabad and PW Mamta resident of Mandawali were different persons.
22) In this regard it is relevant to note that PW3 Mamta in her cross-examination by the accused stated that on 03/04.07.2015 she was residing at Rahul Vihar, Ghaziabad. Nothing was revealed in the testimony of PW3, PW4 or PW12 to show that PW Mamta was not present at the spot at the time of incident and they have denied the suggestion to the contrary. Though PW3 Mamta had been cross-examined in detail regarding her presence at the spot at the time of incident, however, despite her detailed cross-examination, her presence at the spot could not be doubted. The fact that her statement was recorded u/s 161 Cr.P.C. on 19.07.2015 has been explained by the IO in his testimony by stating that he searched for eye witness Mamta and he found her on 19.07.2015 when he SC No. 1854/2016 Page 22 of 44 ASJ04(East)/KKD Courts/Delhi recorded her statement.
23) It is contended by ld. Counsel for the accused that though PW3 Mamta in her cross-examination stated that her statement was recorded by the IO 5-6 days after the incident at V3S Mall, however, IO/PW21 has deposed that the statement of PW3 Mamta was recorded on 19.07.2015 at police station. In this context it may be worthwhile to consider that PW3 Mamta has stated that her statement was recorded 5-6 days after the incident and she did not mention the date of recording of her statement and she had only given an estimate of the number of days and hence, too much emphasis cannot be laid on this fact to disregard her testimony given before the court. Additionally, the place of recording of the statement cannot be given undue weightage, it being a minor discrepancy.
24) As regards the testimony of an eye witness, the Hon'ble Supreme Court in Shahaja @ Shahajan Ismail v. The State of Maharashtra, passed on 14.07.2022 in Criminal Appeal No. 739 of 2017 held as under :
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out SC No. 1854/2016 Page 23 of 44 ASJ04(East)/KKD Courts/Delhi whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a SC No. 1854/2016 Page 24 of 44 ASJ04(East)/KKD Courts/Delhi human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
28. To put it simply, in assessing the value of the evidence of the eye- witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the SC No. 1854/2016 Page 25 of 44 ASJ04(East)/KKD Courts/Delhi evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.
29. There is nothing palpable or glaring in the evidence of the two eye-witnesses on the basis of which we can take the view that they are not true or reliable eye-witnesses. Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-
witnesses."
25) The testimony of PW3, who is the sole eye witness examined on behalf of the prosecution as to be examined in light of law as discussed by the Hon'ble Supreme Court hereinabove.
26) It is noteworthy that PW3 has given a consistent account of the incident that transpired on the intervening night of 3/4.07.2015. The presence of PW3 at the place of incident is corroborated by the testimony of PW4 Purshottam Kumar and PW12 ASI Ram Mehar, Incharge PCR van. The testimony of PW3 is cogent and there is no major contradiction in her testimony. The discrepancies pointed out by ld. Counsel for the accused do not detract from the core of the prosecution version and are minor discrepancies. As held in Sahaja v. Sahajan (Supra) the discrepancy regarding number of days after which the statement of PW3 was recorded by the police cannot be considered to be material as usually people make a guess work of time and they cannot be expected to make reliable estimates in such matters and it depends upon the time sense of the individual SC No. 1854/2016 Page 26 of 44 ASJ04(East)/KKD Courts/Delhi which varies from person to person. Nothing was revealed in the cross-examination of PW3 to render her presence at the spot improbable. There is nothing in the evidence of PW3 to indicate that she is not a reliable eye witness. The testimony of PW3 hence appears to be reliable, cogent and trustworthy and a few minor contradictions would not be sufficient to discard the evidence of PW3.
Medical Evidence:
27) The injured was taken to LBS hospital in PCR van where he was declared brought dead vide MLC No. 9848 dated 04.07.2015 Ex. C-4. The doctor handed over to Const. Omjeet one sealed pullanda containing baniyan (undershirt) and shirt of the deceased and same was seized by the IO vide seizure memo Ex. PW15/A. Doctor also handed over to Const. Omjeet blood stained currency notes of Rs. 1504/- (three currency notes of Rs.
500/- each and two coins of Rs. 2/- each) and one visiting card of Farid Pahlwan, which were handed over by Const. Omjeet to IO/SI Arvind, who converted them in sealed pullanda and seized vide seizure memo Ex. PW15/B. The body of the deceased was sent for postmortem. A postmortem was conducted by PW22 Dr. Vinay Kumar Singh. As per the postmortem report Ex. PW22/A, there were following external injuries on the body of the deceased :
"1. One incised stab wound of size 4.5 cm x 1.4 cm x chest cavity deep. The wound obliquely placed over frontal aspect of middle part of left SC No. 1854/2016 Page 27 of 44 ASJ04(East)/KKD Courts/Delhi side of chest, placed 5 cm from midline and 132 cm above heel. The upper angle of the wound is acute and lower angle of wound is blunt. The margins are regular, sharp and slightly everted. On further exploration of the wound the track of it directed medially and downwards. The wound enter the chest cavity through 3rd inter-costal space by cutting the 3rd rib in upward and toward right side to cut the lower part of upper lobe of left lung and arch of arota are incised. Total depth of the wound is about 9.0 cm."
28) As per the postmortem report the cause of death is due to haemorrhagic shock caused by tearing of large blood vessels of the chest and lung consequent upon stab injury upon it by sharp edged pointed weapon like knife etc. All the injuries were antemortem in nature and of same duration. External injury no. 1 was sufficient to cause death in ordinary course of nature. Manner of death was homicide.
29) After postmortem PW22 handed over to IO sealed pullanda containing clothes i.e. one pant, one underwear and a red colour thread as well as three sealed envelops containing (1) blood on gauze piece, (2) finger nails clippings of left hand and (2) finger nails clippings of right hand, which were seized by the IO vide seizure memo Ex. PW13/A. SC No. 1854/2016 Page 28 of 44 ASJ04(East)/KKD Courts/Delhi Arrest and Recoveries effected at the instance of the accused :
30) In order to prove the arrest of the accused and recoveries affected from accused, prosecution has examined PW14 HC Manmohan and PW21 IO/Insp. Nipun Kumar. They deposed that on 09.07.2015 they reached at Railway Line, near Ganesh Nagar, Mandawali. PW14 deposed that they noticed one boy coming from Mandawali side and upon seeing them, he returned and he was apprehended on suspicion while running.
Upon his search, he was found to be in possession of one knife. Upon his interrogation by the IO, he confessed to his involvement in the present case. He was arrested by the IO vide arrest memo Ex. PW14/B. IO prepared the sketch of the knife (Ex. P-3) vide Ex. PW21/D. The disclosure statement of accused Subhash Sahoo was recorded vide Ex. PW14/E. Pointing out memo of the place of incident was prepared at the instance of the accused vide Ex. PW14/D.
31) It is deposed by PW21 IO/Insp. Nipun Kumar that he alongwith accused Subhash Sahoo, Const. Manmohan PW14, Ct. Kanwar Pal (PW20) and HC Sunil went to Ghaziabad where accused Subhash Sahoo showed the place where he used to sell watermelons opposite gate no. 5, Shipra Sun City, Ghaziabad, UP. IO prepared pointing out memo vide Ex. PW16/C. Thereafter accused Subhash Sahoo alongwith Const. Manmohan PW14, Ct. Kanwar Pal (PW20), HC Sunil went to rented accommodation of elder brother of accused, i.e. house of Phool Singh, Village Behlolpur, Sector-63, Noida, UP. It was a two SC No. 1854/2016 Page 29 of 44 ASJ04(East)/KKD Courts/Delhi storey building having ten rooms on each side on the ground floor. Accused Subhash Sahoo pointed out towards fourth room on the left side situated at the ground floor, which was found locked. Maternal aunt of accused was present there and gave the keys of the said room. Accused Subhash Sahoo opened the lock of the room and from that room he took out one pant and one shirt worn by him on the day of incident. IO seized the same vide seizure memo Ex. PW7/A and sealed the same with the seal of 'SP-02 PS SHAKARPUR DISTT. EAST'. Maternal aunt of accused Subhash Sahoo refused to sign on seizure memo Ex. PW7/A, however, one relative of the landlord namely Umesh signed the seizure memo Ex. PW7/A as a witness. IO recorded the statement of PW Umesh u/s 161 Cr.P.C.
32) In this regard PW7 Umesh deposed that on 09.07.2015, at about 06.00 pm, four police officials alongwith accused came to his house and enquired about accused Subhash Sahoo and he informed the police that elder brother of accused namely Raju was residing as a tenant in house of his uncle Phool Singh. Thereafter he alongwith police officials and accused went to the rented room of Raju located in Behlolpur. The said room was found locked. They took key of room from maternal aunt of accused, who resided in a room by the side of the room of Raju. The lock of the room was opened. Accused Subhash Sahoo and police officials went inside the room. Accused took out a pant of gray colour and a shirt of brinjal colour having strips, which were lying among several other clothes in the room. The pant and SC No. 1854/2016 Page 30 of 44 ASJ04(East)/KKD Courts/Delhi shirt had blood spots. Police seized the same vide memo Ex. PW7/A. He had signed the seizure memo and identified his signatures on the same. He stated that the aunt of the accused refused to sign on the seizure memo. The seizure memo Ex. PW7/A also indicates that one witness Suman resident of Phool Singh Ka Makan, Village Behlolpur, Sector-63, Noida, had refused to sign the same. PW7 identified the shirt and the pant as Ex. P-1 and Ex. P-2 as those which were taken into possession in his presence from the room at the instance of the accused.
33) In his cross-examination he deposed that Phool Singh was not present at the room nor was he called by the police. They remained at the house for about one and half hours. About 10-15 tenants of Phool Singh were present during their stay, whose names he could not tell. He denied that Phool Singh was not his uncle or that Raju was not the brother of the accused or that he was not under the tenancy of Phool Singh at any point of time. He also denied the suggestions regarding the presence of aunt of accused or handing over of keys by her or his own presence or that he had not accompanied the police officials to the house of Phool Singh. He also denied the suggestions that the seizure memo was prepared at the police station at the instance of IO.
34) Regarding recovery of clothes of the accused, PW14 deposed that the accused got recovered the clothes, which he was wearing at the time of incident from the tenanted house of his SC No. 1854/2016 Page 31 of 44 ASJ04(East)/KKD Courts/Delhi brother, which were seized after converting into a cloth parcel and sealed with the seal of 'SP-02 PS SHAKARPUR'. He identified his signature on the seizure memo Ex. PW7/A.
35) In his cross-examination PW14 deposed that the clothes were recovered from Noida and it took about 1 or 1½ hours to reach the place of recovery from the police station. Several persons were present at the time of recovery of clothes but he did not remember their names. Ladies were also present in the said house. No lady Constable had accompanied at the time of recovery. Ten rooms were situated on each side, where the brother of the accused was residing. Several tenants were residing there. IO had recorded statements of witnesses but he did not remember their names. He deposed that clothes were recovered from the fourth room on the left side. The recovered clothes were kept on a cot alongwith other clothes in a scattered manner and the pant and shirt were got recovered by the accused. The clothes were sealed at the spot.
36) As regards recovery of the clothes, PW20 ASI Kanwar Pal has also deposed on the same lines that the recovery was effected from village Behlolpur, Sector-63, Noida, UP, where they were taken to a room in a building owned by Phool Singh. Nephew of Phool Singh namely Umesh was present there. There were ten rooms on each side of the building. Accused led them to the fourth room on the left side, which was taken on rent by his brother Raju, who was not present there at that time. One lady SC No. 1854/2016 Page 32 of 44 ASJ04(East)/KKD Courts/Delhi namely Suman, Mami of the accused, who was also residing in the same row came there. The door of the room was closed and it was opened by accused. Some clothes were lying on the bed. From the said clothes, the accused got recovered one pant and one shirt while saying that same were worn by him at the time of incident. The clothes were seized by the IO vide seizure memo Ex. PW7/A.
37) The gray colour pants Ex. P-2 and one shirt with blue and purple strips Ex. P-1 were identified by PW7, PW14, PW20 and PW21 as the clothes, which were seized at the instance of the accused. From the testimonies of PW7, PW14, PW20 and PW21 it is revealed that their testimonies are consistent regarding the recovery of the pant Ex. P-2 and shirt Ex. P-1 at the instance of accused from the house of his brother. The shirt and the pant were recovered from amongst other clothes, which were lying in the room. PW7 Umesh deposed that the said clothes i.e. pant and shirt were having blood spots. PW7 is a public witness of recovery of the said clothes and his version is consistent with the version of the other police officials. Nothing is revealed in his cross-examination or cross- examination of the witnesses of recovery to disbelieve their testimonies. In these circumstances, the recovery of the blood stained shirt and pant from the house of brother of accused at the instance of the accused is proved on record.
38) Accused Subhash Sahoo further disclosed in his SC No. 1854/2016 Page 33 of 44 ASJ04(East)/KKD Courts/Delhi disclosure statement Ex. PW14/E that after the incident he felt hungry and he went to a kiosk of egg-paranta near Mother Dairy, Ravidas Jhuggi-Jhopri Camp. Vide pointing out memo Ex. PW16/B, accused Subhash Sahoo pointed out the said kiosk at which he had eaten egg-parantha.
39) In this regard, PW6 Sanjay deposed that he was running a tea shop at 119/38, Ravidas Camp, Mandawali, near Mother Dairy and used to sell tea, parantha, bread etc. at his shop. One day police came to his shop alongwith accused, whom he identified before the court and deposed that the accused had pointed out his shop from where he had taken chai parantha few days ago. PW6 deposed that accused had come to his shop and had eaten chai parantha few days ago during night hours but he could not recollect the exact time and date. In this cross- examination he denied the suggestion to the contrary.
40) On 29.07.2015 TIP of the accused was conducted in which eye witness Mamta correctly identified the accused Subhash Sahoo. The TIP proceedings are Ex. PW3/A. Eye witness Mamta also identified accused Subhash Sahoo before the court as the person who had stabbed the deceased on the night of incident.
41) During investigation the IO also seized the blood sample of accused Subhash Sahoo vide seizure memo Ex. PW13/B dated 10.08.2015. The same was deposited in the SC No. 1854/2016 Page 34 of 44 ASJ04(East)/KKD Courts/Delhi malkhana vide Ex. PW23/C.
42) On 29.07.2015 nine sealed pullandas and three sample seals were deposited by IO in FSL Rohini vide RC No. 123/21/15 dated 29.07.2015 Ex. PW23/D. On 21.08.2015 another sealed parcel and sample seal were sent to FSL Rohini vide RC No. 137/21/15 dated 21.08.2015 Ex. PW23/E, through HC Satbir Singh.
43) As per the FSL report Ex. PW24/A, upon biological examination blood was detected on exhibits '1a' (undershirt), '1b' (Shirt), '2' (gauze cloth piece), '3' (concrete pieces), '5' (blood gauze), '6' (nail cuttings), '7' (nail cuttings), '8' (knife), '9b' (shirt) and '10' (blood gauze of accused).
Result of examination is as follows :
"RESULTS OF EXAMINATION DNA profile of male origin has been generated from the source of exhibits '1a' (undershirt), '1b' (Shirt), '2' (gauze cloth piece), '3' (concrete pieces), '5' (blood gauze), '6' (nail cuttings), '7' (nail cuttings), '8' (knife) and '10' (blood gauze of accused). Mix profile has been generated from the source of exhibit '9b' (shirt). Alleles from the source of exhibit '5' (blood gauze) are accounted in the alleles from the source of exhibits '1a' (undershirt), '1b' (Shirt), '2' (gauze cloth piece), '3' (concrete pieces), '5' (blood gauze), '6' (nail cuttings), '7' (nail cuttings) and '8' (knife).
However, alleles from the source of exhibit '5' (blood gauze) and '10' (blood gauze of accused) are accounted in the alleles from the source of exhibit '9a' (shirt)."
SC No. 1854/2016 Page 35 of 44 ASJ04(East)/KKD Courts/Delhi The following conclusion was arrived at :
"CONCLUSION DNA profiling (STR analysis) performed on the exhibits '1a' (undershirt), '1b' (Shirt), '2' (gauze cloth piece), '3' (concrete pieces), '5' (blood gauze), '6' (nail cuttings), '7' (nail cuttings), '8' (knife). '9b' (shirt) and '10' (blood gauze of accused) are sufficient to conclude that ;-
1. Male DNA profile generated from the exhibits '1a' (undershirt), '1b' (Shirt), '2' (gauze cloth piece), '3' (concrete pieces), '5' (blood gauze), '6' (nail cuttings), '7' (nail cuttings) and '8' (knife) are similar to the male DNA profile generated from the source of exhibits '5' (blood gauze).
2. Mix DNA profile generated from the source of exhibits '9b' (shirt) is matching with the male DNA profile generated from the source of exhibits '5' (blood gauze) & '10' (blood gauze of accused). "
44) Accordingly, it is manifest from the FSL result Ex. PW24/A that blood was detected on the clothes of the deceased i.e. his undershirt exhibit '1a', his shirt exhibit '1b'. Blood in gauze lifted from the place of occurrence exhibit '2', blood stained concrete pieces lifted from the spot exhibit '3', blood in gauze of the deceased which was seized by the IO after postmortem exhibit '5', nail cuttings of the deceased exhibit '6' and '7'.
45) Blood was also detected on the knife recovered from the accused Subhash Sahoo exhibit '8'. The said knife (exhibited SC No. 1854/2016 Page 36 of 44 ASJ04(East)/KKD Courts/Delhi as Ex. P-3 herein) was described as a knife with wooden handle and rusted metallic blade having few brown stains. Blood was also detected on the white/blue/pink colour full sleeves shirt (exhibited as Ex. P-1 herein) having few brown stains, which was seized at the instance of accused Subhash Sahoo Exhibit'9b'. Exhibit'10' was the blood gauze of accused.
46) As per the result of DNA examination, alleles from the source of exhibit '5' (blood gauze of the deceased) were accounted in the alleles from the source of exhibits i.e. undershirt Exhibit '1a', Shirt Exhibit '1b' and other blood stained exhibits i.e. concrete pieces lifted from the spot and blood stains lifted from the spot. Pertinently, the alleles from the source of blood of the deceased were also accounted in the alleles from the source of the knife Exhibit '8', which was recovered at the instance of the accused.
47) Further as per the result of the DNA examination mixed DNA profile was generated from the source of exhibit '9b' i.e. shirt which was recovered at the instance of the accused. It is further noted that the alleles from the source of blood gauze of the deceased as well as from the blood gauze of the accused were accounted in the alleles from the source of the shirt, which was recovered at the instance of the accused.
48) It was thus concluded that the mixed DNA profile generated from the source of the shirt exhibit '9b' matched with SC No. 1854/2016 Page 37 of 44 ASJ04(East)/KKD Courts/Delhi the male DNA profile generated from the blood of the accused and the blood of the deceased. Accordingly, the shirt Ex. P-1 recovered from the room of the brother of the accused at the instance of the accused and seized by the IO vide seizure memo Ex. PW7/A had a mixed DNA profile having the alleles of both the accused as well as the deceased.
49) Additionally, blood was also detected on the knife Ex. P-3 recovered from the accused and seized vide Ex. PW14/A. The alleles from the source of the blood of the deceased were accounted in the alleles from the source of that knife. Hence, as per the FSL result, the blood found on the knife recovered from the accused was stained with the the blood of the deceased.
50) As per the postmortem report Ex. PW22/A, the cause of death is due to haemorrhagic shock caused by tearing of large blood vessels of the chest and lung consequent upon stab injury upon it by sharp edged pointed weapon like knife etc. All the injuries were antemortem in nature and of same duration. External injury no. 1 was sufficient to cause death in ordinary course of nature.
51) The IO also obtained subsequent opinion regarding whether the fatal injury caused to the deceased was possible with the recovered knife Ex. P-3. It was opined by PW22 Dr. Vinay Kumar Singh that injury no. 1 on the body of the deceased could be caused by the said weapon examined or similar weapon. He SC No. 1854/2016 Page 38 of 44 ASJ04(East)/KKD Courts/Delhi also drew a sketch of the weapon examined by him vide Ex. PW22/B. He also identified the knife Ex. P-3 before the court.
52) Hence, as per the postmortem report Ex. PW22/A and the subsequent opinion given by Dr. Vinay Kumar Singh vide Ex. PW22/B, the fatal injury caused to the deceased could be caused by the knife recovered from the accused Ex. P-3.
53) It is contended by ld. Counsel for the accused that the the alleged weapon of offence i.e. knife Ex. P-3 and the abovesaid shirt & pant were planted upon the accused. In his statement recorded under section 313 Cr.P.C. accused stated that the knife was not recovered from his possession and it was planted upon him. As regards the shirt and pant recovered from the house of his brother Raju, the accused stated that no clothes were recovered at his instance and the police never took him to the rented house of his brother Raju. The alleged shirt and pant did not belong to him and the police planted the said clothes upon him.
54) As regards the shirt Ex. P-1 and the pant Ex. P-2, which were recovered at the instance of the accused, it is noted that the testimonies of witnesses of recovery i.e. PW7, PW14, PW20 and PW21 are consistent with each other regarding recovery of the pant Ex. P-2 and shirt Ex. P-1 at the instance of accused from the house of his brother. The shirt and the pant were recovered from amongst other clothes, which were lying in SC No. 1854/2016 Page 39 of 44 ASJ04(East)/KKD Courts/Delhi the room. PW7 Umesh deposed that the said clothes i.e. pant and shirt were having blood spots. PW7 is a public witness of recovery of the said clothes and his version is consistent with the version of the other police officials and as discussed hereinabove the recovery of the blood stained shirt and pant from the house of brother of accused at the instance of the accused is proved on record.
55) It would also be relevant to consider Section 106 of the Indian Evidence Act in facts of the present case. Section 106 of the Indian Evidence Act 1872 provides as follows :
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
56) It is proved on record that the blood stained shirt Ex. P-1 was recovered from the house of the brother of the accused. It is also proved on record that the said shirt had the blood stains of the deceased in terms of the FSL result Ex. PW24/A. In these circumstances, it was for the accused to explain how the shirt Ex. P-1 having blood stains of the deceased was found at the house of his brother, that fact being especially within the knowledge of the accused. No further explanation was given SC No. 1854/2016 Page 40 of 44 ASJ04(East)/KKD Courts/Delhi regarding recovery of the shirt from the house of his brother. Once the aforesaid shirt of the accused have bloodstains of the deceased was recovered at the instance of the accused from the house of his brother, section 106 of the Evidence Act enjoined that the burden of proving that the said shirt did not belong to the accused or the reason as to why the said blood stained shirt was found there, was upon the accused himself, that fact being especially in the knowledge of the accused. Merely by stating that the said shirt alongwith pants did not belong to him and were planted upon him by the police is not sufficient explanation to discard the prosecution case.
57) As regards the knife, which was recovered from the accused at the time of his arrest, it is noted that the same was recovered upon the search of the accused from his possession at the time of his arrest. It is noteworthy that the incident took place in the intervening night of 3/4.07.2015 and accused was arrested on 09.07.2015 by IO/Insp. Nipun Kumar (PW21) and HC Manmohan (PW14). The knife Ex. P-3 as per its sketch Ex. PW21/D is about 25.5 cm in length. It is unfathomable as to why the accused would be carrying the weapon of offence with him even five days after the incident. Moreover, as per the FSL report, the knife Ex. P-3 was found to be stained with the blood of the deceased. It is intriguing as to why the accused would be carrying the weapon with the blood stains of the deceased with him without washing it, after five days of the incident. Additionally no public witness was joined at the time of SC No. 1854/2016 Page 41 of 44 ASJ04(East)/KKD Courts/Delhi recovery of the knife Ex. P-3 from his possession. In these circumstances, the recovery of the knife Ex. P-3 from the possession of the accused at the time of his arrest appears to be doubtful and hence, no reliance can be placed by the prosecution to prove its case against the accused to prove his guilt. Be that as it may, there is otherwise sufficient evidence on record to prove the guilt of the accused.
58) As discussed hereinabove, it is proved on record that PW3 Mamta was present at the spot at the time of incident. She has detailed the manner in which the accused caused a stab injury to the deceased in the intervening night of 03/04.07.2015 at about 02.00 am. The PCR call was received at 02.04 am, thereby corroborating the version of PW3 Mamta that the incident took place at about 02.00 am. PW3 also deposed that accused, who was already standing on the railway bridge, stopped the deceased, who was coming from Laxmi Nagar side and stopped his cycle and kicked the cycle. An argument took place between both the persons and accused took out a knife from his pants and stabbed on the chest of the deceased. Thereafter accused took out something from the pocket of the shirt of the deceased. The accused also showed her a knife and told her to leave otherwise he would stab her. Thereafter he ran towards the railway line.
59) The testimony of PW3 is a natural version of the events that transpired at the time of incident. Her testimony is also corroborated by the testimony of PW4 Purshottam Kumar SC No. 1854/2016 Page 42 of 44 ASJ04(East)/KKD Courts/Delhi and PW12 ASI Ram Mehar, who confirmed that Mamta told that she had witnessed the incident of stabbing of the deceased. It is noted that in his disclosure statement Ex. Pw14/E, the accused stated that he found Rs. 100/- in the pocket of the shirt of the deceased with which he ate egg-parantha from a tea shop near Mother Dairy. The said tea shop was also pointed out by the accused vide Ex. PW 16/A. The said fact is also corroborated by the testimony of PW6 Sanjay, who used to run the said tea shop. The testimony of eye witness PW3 Mamta is also corroborated by medical and forensic evidence. The testimony of PW3 Mamta is trustworthy and inspires the confidence of the court to be relied upon. There is no reason to disbelieve the testimony of PW3 Mamta. No cogent reason for false implication of the accused by PW3 Mamta has been established on record. PW3 Mamta identified the accused in the TIP proceedings Ex. PW3/A as well as before the court as the person who had stabbed the deceased on the night of incident. The testimony of eye witness PW3 Mamta proves the involvement of the accused Subhash Sahoo in the offence in issue. Additionally, the FSL result Ex. PW24/A as per which the blood of the deceased was found on the shirt of the accused Ex. P-1 recovered at the instance of accused from the house of his brother. Accordingly, the FSL result also corroborates the version of PW3. Moreover, as per the opinion given by PW22 the cause of death was due to haemorrhagic shock caused by tearing of large blood vessels of the chest and lung consequent upon stab injury upon it by sharp edged pointed weapon like knife etc. Even though it is not proved on record that SC No. 1854/2016 Page 43 of 44 ASJ04(East)/KKD Courts/Delhi the weapon of offence i.e. knife Ex. P-3 was recovered at the instance of the accused, however, the fact that the accused stabbed with the knife on the chest of deceased is manifest in the testimony of PW3 Mamta and the postmortem report as per which death of the accused was caused due to stab injury with the sharp edged weapon like knife. Accordingly, the medical and scientific evidence corroborates the testimony of the eye witness PW3 Mamta, who deposed that the assailant had given a stab injury on the chest of deceased with a knife. It is thus proven on record that a fatal stab injury was given to the deceased by accused Subhash Sahoo which resulted in his death.
60) Accordingly, the prosecution has been able to establish beyond doubt that on the intervening night of 03- 04.07.2015 at about 02.00 am, at Railway Flyover, Laxmi Nagar towards Mother Dairy, Delhi, accused Subhash Sahoo had caused stab injury on the chest of the deceased to which he succumbed on the intervening night of 03-04.07.2015 itself.
61) In view of the aforesaid discussion, the prosecution has been able to bring home the guilt of the accused Subhash Sahoo beyond reasonable doubt. Accordingly, accused Subhash Sahoo is held guilty and convicted for the offence u/s 302 IPC.
Announced in the open Court DEEPALI Digitally order signed by DEEPALI SHARMA On this 25th Day of August, 2023 SHARMA 17:05:49 +0530 Date: 2023.08.25 (Deepali Sharma) Additional Sessions Judge-04 East District/KKD Courts/Delhi.
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