Delhi District Court
State vs . Mohd. Zahid, on 28 August, 2019
Sessions Case No.57515/2016
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
CNR No.DLWT010017122014
Sessions Case No. :57515/2016
FIR No. : 594/2014
Under Section : 302 IPC
Police Station : Nangloi
IN THE MATTER OF:
STATE Vs. Mohd. Zahid,
S/o Mohd. Abdul Hamid,
R/o H.No.A383, Camp No.2,
Nangloi, Delhi.
Date of receiving the case upon committal : 01.12.2014
Date on which judgment was reserved : 21.08.2019
Date of pronouncement of judgment : 28.08.2019
Decision : Acquitted
JUDGMENT
1. The accused Mohd. Zahid was sent for trial in case FIR No.594/2014, P.S. Nangloi for the commission of offence punishable under Section 302 IPC on the allegation that on 25.08.2014 at about 08:30 pm near Metro Pillar No.393, near Nangloi Metro Station, Delhi, he committed murder of Sunny by stabbing.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.1/49 Sessions Case No.57515/2016
2. On receipt of DD No.37A Ex.PW13/A regarding stabbing of a person at Nangloi Metro Station, PW19 SI Prem alongwith PW Ct. Vijay reached at the spot and came to know that injured had already been removed to hospital by PCR Van. No eye witness of the incident found at the spot, hence, both the police officials went to SGM Hospital and collected the MLC No.16137/14 of the injured Ex.PW16/A and doctor opined "patient brought dead". SI Prem inspected the dead body and taken photographs from his mobile phone to find out the identity of the deceased. No eye witness met in the hospital also. Crime team was called and dead body was preserved in the Mortuary of SGM Hospital through Ct. Vijay. Thereafter, SI Prem returned back to the spot. Ct. Pardeep and other senior officers also reached the spot alongwith crime team. Blood was lying at the spot at some distance from Nangloi Metro Station, Pillar No.393. Crime team inspected the spot; taken Photographs and seized the exhibits. People also gathered at the spot. Identity of the deceased could not be established despite showing the photographs in the mobile phone to the people gathered at the spot. On the basis of DD entry, MLC and other circumstances, SI Prem got recorded the FIR under Section 302 IPC and further investigation of this case was assigned to Insp. Dheeraj Kumar.
PW18 Insp. Dheeraj Kumar inspected the spot and prepared the site plan Ex.PW18/A. During the course of investigation, State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.2/49 Sessions Case No.57515/2016 one eye witness namely Mohd. Ayub, S/o late Mushtaq Ali, R/o H.No.9A, Balaji Wali Gali, Kavita Colony, Nangloi met and his statement Ex.PW2/A was recorded who disclosed the name of the accused Mohd. Zahid as assailant of this case. The deceased was identified by his relatives and after the postmortem, the dead body was handed over to the relatives of deceased. Accused Mohd. Zahid was interrogated and arrested in this case vide arrest memo Ex.PW17/A; his disclosure statement Ex.PW17B was also recorded; the knife Ex.P1 which was used in the commission of crime of this case and the clothes worn by him at the time of incident Ex.P2 (Colly) were recovered at the instance of accused. All the exhibits were sent to FSL for examination and after completion of investigation, charge sheet was filed against the accused for commission of offence under Section 302 IPC.
3. 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 20 witnesses in all. For sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.3/49 Sessions Case No.57515/2016 and the documents relied upon by them is mentioned hereinbelow: PW - Name Nature of evidence Documents proved PW1 Conducted the postmortem on the Ex.PW1/A Dr. Manoj body of deceased. (Postmortem report). Dhingra, Incharge Mortuary, SGM Hospital, Delhi.
PW2 Mohd. Eye witness. Ex.PW2/B (arrest Ayub memo of accused). PW3 H. Ct. MHC (M) proved the relevant Ex.PW3/A (entry of
Dharambir entry of Register No.19. Register No.19).
PW4 Sh. Jaspal Father of deceased. Ex.PW4/A
Singh (identification memo of
dead body).
PW5 Sh. Uncle of deceased. Ex.PW5/A
Jagmohan Singh (identification memo of
dead body).
PW6 Ct. Rekha Telephone operator at Police Ex.PW6/A (PCR
Kumari Control Room, PHQ, Delhi on Form).
25.08.2014.
PW7 H. Ct. Visited the spot with mobile crime Ex.PW7/A1 to
Ramesh team and taken photographs. Ex.PW7/A5
(photographs taken at
the spot).
State vs. Mohd. Zahid
FIR No.594/2014,
PS Nangloi, u/s 302 IPC Page No.4/49
Sessions Case No.57515/2016
PW8 SI Inchage, Mobile Crime Team. Ex.PW8/A (scene of
Devender Singh crime report).
PW9 Ct. Pradeep Visited the spot on 25.08.2014 on Ex.PW9/A (seizure
Kumar receipt of message from PS memo of blood
regarding stabbing of a person and samples, blood stained
joined the investigation with first earth control, sample
IO SI Prem Chand; deposed earth control and pair
regarding seizing of articles from of chappal). Witness
the spot by the IO, inspection of has also identified the
spot by crime team; also got pair of chappal as
recorded the FIR. Ex.PW9/1.
PW10 Ct. Vijay Visited the spot alongwith first IO
SI Prem Yadav and thereafter, to
SGM Hospital and preserved the
dead body in Mortuary, SGM
Hospital.
PW11 H.Ct. Being deputed on PCR Van Power
Inder Singh 63 as Incharge on 25.08.2014,
visited the spot; took and admitted
the injured in SGM Hospital.
PW12 Sh. Shiv Informed the police about lying
Bhawan Yadav the deceased at the spot from his
mobile on.9311113104.
PW13 H.Ct. Recorded DD No.37A, 38A and Ex.PW13/A (DD
Jagdish FIR through computer operator. No.37A), Ex.PW13/B
(DD No.38A).
PW14 Ct. Rajesh Delivered the copies of FIR to the Kumar area Magistrate, Addl. CP, Joint CP and other senior officers.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.5/49 Sessions Case No.57515/2016 PW15 Ct. Dinesh Deposited the parcels of case Ex.PW15/A (road Kumar properties in the office of FSL certificate).
Rohini on 27.10.2014.
PW16 Dr. Examined the deceased in the Ex.PW16/A (MLC Mahipal Singh, hospital on 25.08.2014. No.16137 of deceased). CMO, SGM Hospital.
PW17 H.Ct. Joined the investigation alongwith Ex.PW17/A & Rajesh IO Insp. Dheeraj Kumar on Ex.PW17/B (arrest and 27.08.2014 ; deposed regarding disclosure statement of the arrest of accused, recording of accused); Ex.PW17/C his disclosure statement,recovery (sketch of knife); of knife and clothes at the instance Ex.PW17/D (seizure of accused, seizing of the articles memo of knife); by the IO, preparation of site plan Ex.PW17/E (seizure of the place of recovery by IO and memo of clothes);
medical examination of accused in Ex.PW17/F &
the govt. hospital. Ex.PW17/G (site plans
of the place of
recovery); Ex.PW17/H
(pointing out memo of
the place of occurrence
by accused). Witness
has also identified the
knife as Ex.P1 and
clothes of accused
Ex.P2 (Colly).
State vs. Mohd. Zahid
FIR No.594/2014,
PS Nangloi, u/s 302 IPC Page No.6/49
Sessions Case No.57515/2016
PW18 Insp. 2nd Investigating Officer. Ex.PW18/A (site plan
Dheeraj Kumar of the spot);
Ex.PW18/B to
Ex.PW18/D (inquests
papers i.e. form
no.25.35, request for
postmortem and brief
facts respectively);
Ex.PW18/E (receipt by
which the dead body
was handed over to the
father of deceased);
Ex.PW18/F (seizure
memo of clothes of
deceased, blood on
gauze and sample seal
of hospital). Witness
has also identified the
knife as Ex.P1 and
clothes of accused as
Ex.P2.
PW19 SI Prem 1st Investigating Officer. Ex.PW19/A (seizure
Yadav memo of parcels
handed over by the
doctor); Ex.PW19/B
(rukka). Witness has
also identified the knife
as Ex.P1, clothes of
accused as Ex.P2 and
pair of chappal seized
from the spot as
Ex.PW9/1.
State vs. Mohd. Zahid
FIR No.594/2014,
PS Nangloi, u/s 302 IPC Page No.7/49
Sessions Case No.57515/2016
PW20 Dr. Ruchi Examined the case property in Ex.PW20/A Sharma, Jr. FSL on 27.10.2014. (serological report) and Forensic Ex.PW20/B (biological Chemical report).
Examiner (Biology), FSL, Rohini, Delhi.
5. On conclusion of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded on 03.10.2018 wherein all the incriminating evidence and documents on record against him was put to the accused to which he denied. He claimed that: "I am innocent and have been falsely implicated in the present case. In the night of 25.08.2014 at about 67 pm, I went to Loni alongwith my friend Faizan on the scooty. The scooty had slipped on the way. Due to the same, I had received injuries and my clothes got torn. The blood from my injuries stained my clothes. The police officials apprehended me from the office of Faizan in Loni and had brought me to the police station in the night. When I reached the police station, I found that my parents had already been called by the police and they were sitting in the police station. My parents had brought my clothes from the house at the instance of the police and after I changed my clothes, my blood stained clothes seized by the police. I was not taken to any place for the purpose of investigation by the police. The police had also brought my friend Faizan with me from Loni but he had been let off on the next day after making inquiries from his parents."
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.8/49 Sessions Case No.57515/2016
6. Accused Mohd. Zahid examined DW1 Mohd. Faizan in his defence who deposed that: "I know the accused Mohd. Zahid as he resides in the same colony in which I have my residence. He is not related to me. However, we are on friendly terms. I do not remember the exact date, month or year but about four to five years ago, I and the accused Mohd. Zahid had gone to my sister's house situated at Loni, Ghaziabad in the evening around 07:00/8:00 pm by bus. We had stayed at my sister's house in the night. On the next day in the morning at about 10:00 am, the police officials had come to my sister's house and had taken away the accused Mohd. Zahid with them. I did not accompany the accused and the police officials. I do not know as to what had happened with the accused thereafter".
7. It is argued on behalf of State that the prosecution has successfully proved its case against the accused and in view of the testimony of the witnesses examined, he be convicted.
Per contra Ld. counsel for the accused argued that there is no material/incriminating evidence against the accused on record and the prosecution has failed to prove the case beyond releasable doubt. It is further submitted that there is no recovery of weapon nor the accused have been identified or witnessed by any person committing the offence; the nature of evidence against the accused is merely hearsay; the recovery shown from the accused is planted. It is argued that the case of prosecution is not free from doubts and the benefit of State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.9/49 Sessions Case No.57515/2016 such doubt is required to be given to the accused.
8. I have considered the arguments addressed by the Ld. Addl. PP for the State and the counsel for the accused. Record has also been perused.
9. In the present case, the accused has been charged for the commission of offence punishable under Section 302 IPC. The said section is reproduced as under:
302. Punishment for murder - Whoever commits murder shall be punished with death, or [imprisonment for life] and shall also be liable to fine.
10. The relevant portion of Section 300 IPC which defines 'murder' reads as follows: 300 Murder. Except in the cases hereinafter excepted, culpable homicide homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly. If it is done with the intention of causing bodily injury to any State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.10/49 Sessions Case No.57515/2016 person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
11. Further, the relevant portion of Section 299 IPC, which defines 'culpable homicide' having reference in the definition of 'murder' reads as follows:
299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
12. In the first place, it requires to be determined as to whether the death of the deceased Rahul was homicide.
PW16 Dr. Mahipal Singh, CMO, SGM Hospital, Mangol Puri deposed that Dr. Amit Kumar, who was on duty in casualty on 25.08.2014 at about 09:20 pm, has examined the unknown patient 30 years male vide MLC No.16137 Ex.PW16/A and identified the State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.11/49 Sessions Case No.57515/2016 signature of Dr. Amit Kumar.
PW1 Dr. Manoj Dhingra, Incharge Mortuary, SGM Hospital has conducted the postmortem on the dead body of Sunny/deceased on 28.08.2014 vide PM report Ex.PW1/A. The following external injuries were noticed on the body of deceased by PW1 Dr. Manoj Dhingra:
Examination (injuries):
(i) Stab wound of size 2x0.7 cm x ? wedge shaped, obliquely placed on anterior axillary line 17 cm below left axilla & 12 cm from left nipple; with one angle acute and other rounded. On exploration, underlying skin, s/c tissues, muscles cleanly cut injury track running above downwards & anterior to posterior with extensive blood extravasation perforating left lung and heart. About 1.5 litre of fluid and cotted blood in chest cavity. Injury is chest cavity deep.
During examination, the witness deposed that there were two injuries on the body of deceased as detailed in PM report Ex. PW1/A and the cause of death was haemorrhagic shock due to injury to chest organs; all injuries were antemortem in nature; injury no.1 was sufficient to cause death in ordinary course of nature caused by sharp single edged weapon. As deposed, the time since death was approximately 2 ½ days as per inquest papers. The testimony of the witness was not challenged by the defence.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.12/49 Sessions Case No.57515/2016
13. From the testimony of PW18 and the postmortem report Ex.PW18/A, it has duly been established that the death of the deceased had taken place due to antemortem injuries caused to him in his abdominal region and scalp and as per the opinion of the doctor, all the said injuries were individually and collectively sufficient to cause death in ordinary course of nature. Therefore, it is duly proved that the death of the deceased was a homicidal death and not otherwise.
14. It is a settled proposition of criminal law that prosecution is 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.13/49 Sessions Case No.57515/2016 a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal.
15. 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 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. It was further observed that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case.
16. PW2 Mohd. Ayub has been examined as the only eye witness of the incident by the prosecution. There is no legal impediment in convicting a person on the sole testimony of a single State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.14/49 Sessions Case No.57515/2016 witness. It is 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 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.
17. 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 Bihar (Now Jharkhand) : 2013 (12) SCALE 504).
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.15/49 Sessions Case No.57515/2016 In view of the settled law, I shall now examine whether the evidence of PW2 Mohd. Ayub/sole eye witness of the incident 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.
18. The only eye witness examined by the prosecution PW2 Mohd. Ayub appears to have not supported the prosecution story during examination of the witness. PW2 was examined on 27.07.2015 and deposed as under:
Accused Zahid who is present in court today is my friend but I do not know him.
Again he was examined on 10.09.2015 and deposed as below:
Accused Zahid, who is present in court today is running a shop of chicken meat at Nangloi. I do not remember the date of incident. However on the day of incident while I was passing through metro station Nangloi, near metro pillar no.393, Nangloi, I saw there was crowd, I saw one person was lying there. There was no injury on the body of person, who was lying there. Thereafter, I informed the police official who were present near the Gypsy, the gypsy was at some distance from the place where that person was lying. Those police officials took me to the police station in State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.16/49 Sessions Case No.57515/2016 the same gypsy. They inquired from me my name and address. I gave my name and address and thereafter I was let off by the police. I do not know anything more. My statement was not recorded by the police.
As the witness has not supported the case of the prosecution, he was crossexamined by the Ld. Addl. PP for the State but nothing incriminating was deposed by him.
19. During crossexamination by the defence, the witness deposed that on 25.08.2014, accused Zahid has not put his rehri for selling the chicken; he purchased banana from a rehri at near Kirari Mor Metro Station and returned to his home ; Zahid did not meet him on 25.08.2014. The witness further deposed that on the intervening night of 25/26.08.2014, police officials visited his home after 02:00 pm and he was taken to the PS for 20 minutes and his signatures were obtained on blank papers and some printed papers. The witness deposed that on 27.08.2014, police officials did not meet him and accused Zahid was not apprehended in his presence; accused Zahid had no quarrel with any person on 25.08.2014 near Metro Station Nangloi. It is further noted that on 10.09.2015, the witness answered court questions as below: Court Question: In your examination in chief you stated that on 25.08.15 Zahid had confrontation with one person on the State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.17/49 Sessions Case No.57515/2016 point of bidi after which he stabbed with knife and during crossexamination you stated that on 25.08.2015 Zahid had no quarrel with any person. Which one of the two is correct?
Ans. My statement that Zahid had no quarrel with any person is correct.
Court Question: You have stated earlier that you used to exchange pleasantry with the accused daily while coming to your place of work and going home but lateron you told that his rehri was not on the way to place of your work, then how you take pleasantry to accused Zahid daily?
Ans. I used to exchange pleasantry with accused Zahid only if I used to take the route on which Zahid used to sell chicken.
From the testimony of PW2 Mohd. Ayub, it is apparent that his testimony is not sufficient to prove the allegations levelled against the accused at all as the witness has not supported the prosecution case.
20. 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 PW2 Mohd. Ayub is sufficient to prove the charges levelled against the accused. It is argued that evidence of a hostile witness is not effaced simply for the reason that the witness has State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.18/49 Sessions Case No.57515/2016 not supported the prosecution. Such evidence can be relied upon to the extent it is consistent to the case of the prosecution.
21. 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 examination inchief 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 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.19/49 Sessions Case No.57515/2016 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 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.20/49 Sessions Case No.57515/2016 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.21/49 Sessions Case No.57515/2016 witness which cannot otherwise by called to the matter under enquiry, trial or 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:
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.22/49 Sessions Case No.57515/2016
(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 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.23/49 Sessions Case No.57515/2016 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."
22. In light of the aforesaid pronouncements, the positive statements made by PW2 Mohd. Ayub in response to the leading questions put to him by the Addl. Public Prosecutor on material facts, cannot be heavily relied upon. Moreover, even during the crossexamination by the Ld. Addl. PP for the State, the witness has not supported the prosecution story. PW2 Mohd. Ayub denied that he was with the accused on the day and time of the incident and witnessed any such incident. The witness even denied his presence at the time of arrest of the accused or recovery of alleged knife/weapon of offence at his instance. 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 there was any quarrel/altercation between the accused and the deceased or the accused inflicted knife blows upon the person of deceased.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.24/49 Sessions Case No.57515/2016
23. An analysis of the evidence brought on record reveals that the testimony of the eye witness/PW Mohd. Ayub 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 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.25/49 Sessions Case No.57515/2016 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).
24. PW12 Shiv Bhawan Yadav on 25.08.2014 at about 08:30/09:00 pm called the police on 100 number from his mobile on 9311113104 regarding one person lying in injured condition and left the spot. The police machinery was set in motion when PW11 Ct. Inder Singh at about 09:00 pm on 25.08.2014 received wireless message from PCR regarding lying of a person under Nangloi Metro Station having injuries reached the spot and found one person was lying in injured condition having stab injury on his left side chest and blood was coming out. He took the injured to SGM Hospital and admitted there where the doctors after examination declared the patient brought dead. He deposed that the blood was lying at the spot.
As regards other prosecution witnesses PW3, PW4, PW5, PW6, PW7, PW8, PW13, PW14, PW15 are the formal witnesses. PW3 H.Ct. Dharambir Singh proved the relevant entry of Register No.19; PW4 father and PW5 uncle of the deceased identified the dead body; PW6 Ct. Rekha Kumari/telephone operator filled PCR Form; PW7 H.Ct. Ramesh/Photographer taken the photographs of the spot; PW8 SI Devender Singh, Incharge, Mobile Crime Team inspected the spot and prepared the scene of crime report; PW13 written DD State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.26/49 Sessions Case No.57515/2016 Nos.37A, 38A and registered the FIR of this case; PW14 Ct. Rajesh Kumar delivered the copies of FIR to the senior officers and PW15 Ct. Dinesh Kumar deposited the parcels in the office of FSL.
PW9 Ct. Pradeep, on receipt of message from PS regarding stabbing of a person reached the spot i.e. Metro Station Nangloi and met with PW19 SI Prem Chand and PW10 Ct. Vijay Kumar who were already present at the spot upon receipt of DD No.37A. The injured has been removed to hospital by PCR Van and PW19 and PW10 reached SGM Hospital where PW19 collected the MLC of the deceased and inspected the dead body; snapped photographs and got preserved the dead body for postmortem; seized the parcel handed over by the doctor. PW19 returned back to the spot; called the crime team; seized the exhibits i.e. blood in gauze, earth control and blood stained earth control; prepared rukka; got the FIR registered through Ct. Pradeep and after registration of FIR, case was transferred to PW18 Insp. Dheeraj Kumar for further investigation.
On 27.08.2014, IO Insp. Dheeraj Kumar alongwith PW17 H.Ct. Rajesh and PW19 SI Prem Yadav reached Kirari Railway Phatak; apprehended, interrogated and arrested the accused and IO recorded his disclosure statement; prepared the pointing out memo of the place of occurrence and seized the weapon of offence i.e. knife from rear side of Metro Station, Nangloi at the instance of accused and prepared the sketch of the knife. Accused also got recovered his State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.27/49 Sessions Case No.57515/2016 clothes worn by him at the time of commission of offence which was seized by the IO and IO also prepared the site plan of the place of recovery of knife and clothes. On 28.08.2014, PW18 Insp. Dheeraj Kumar visited SGM Hospital and prepared the inquest papers for the postmortem of the deceased; recorded the statements of father and uncle of deceased regarding identification of dead body; handed over the dead body of the deceased to his relatives; seized the clothes and blood on gauze of the deceased; got the spot inspected through draftsman and after completion of investigation filed the charge sheet. All of these aforesaid witnesses deposed regarding the process and the steps taken in the investigation and are not the witness of the incident.
25. The next circumstance put forth by the prosecution is the recovery of the knife/weapon of offence at the instance of the accused. PW17 H.Ct. Rajesh alongwith IO Insp. Dheeraj Kumar/PW18 on 27.08.2014 made inquiry regarding the identity of the deceased who was unknown and on the information of secret informer regarding the accused, PW17 alongwith SI Prem Yadav and Insp. Dheeraj Kumar reached near Railway Line, Kavita Colony. On seeing them, one boy started running near the Railway Line who was apprehended by SI Prem Yadav and PW17 H.Ct. Rajesh who revealed his name as Zahid and confessed his involvement in the case. Thereafter he was arrested vide arrest memo Ex.PW2/B and his personal search was conducted State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.28/49 Sessions Case No.57515/2016 vide memo Ex.17/A, his disclosure statement was also recorded vide memo Ex.PW17/B. Meanwhile, eye witness Mohd. Ayub also reached there and identified the accused as the assailant of this case. During crossexamination, the witness PW17 H.Ct. Rajesh deposed that he left the PS at about 07:00/07:30 pm and no public witness joined the investigation. He further deposed that accused was arrested on 09:30 pm; no photographs was taken by the IO at the time of recovery of knife nor any public person joined the investigation. It is admitted that there were residential houses near the place of recovery of clothes. It is noted that PW2 has denied his presence at the time of arrest of accused or recovery of the knife in contradiction to the testimony of PW17 and PW18/Insp. Dheeraj Kumar. PW18 during crossexamination denied the presence of any public person at the spot but the presence of public persons at the spot after the incident has been admitted by the other witnesses examined by the prosecution who reached the spot at the first instance. None of the public witnesses including the shopkeepers present at the spot were examined or inquired in investigation regarding the matter as admitted by PW18 Insp. Dheeraj Kumar as well. PW19 SI Prem Yadav admitted that no public person was joined in the investigation nor notice was issued to any such person. The testimony of PW2 Mohd. Ayub regarding his non presence at the spot at the time of arrest of the accused or recovery of the knife is further corroborated as none of the documents i.e. site plan Ex.PW18/A, site State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.29/49 Sessions Case No.57515/2016 plan of recovery of knife Ex.PW17/G; site plan of the recovery of clothes of accused Ex.PW17/F; seizure memo of the knife Ex.PW17/G; seizure memo of the clothes of the accused Ex.PW17/E; sketch of the knife Ex.PW17/C or the personal search memo Ex.PW17/A; disclosure statement Ex.PW17/F and pointing out memo Ex.PW17/F do not bear the signatures of material/sole eye witness of the prosecution i.e. PW2 Mohd. Ayub and the same cast shadow on the prosecution story. No witness has been examined by the prosecution further to prove that the injuries caused to the deceased have been caused by the alleged knife recovered at the instance of the accused i.e. Ex.P1. Infact, the alleged weapon of offence i.e. knife was not examined by the doctor to prove any correlation between the knife and the injuries inflicted upon the deceased. It is reiterated that there was no blood stains on the knife recovered at the instance of the accused which was recovered from a dry pit nor the blood stains of the deceased has been found on the clothes seized from the accused as in view of his disclosure statement, the blood on the knife was spread upon his pant. The recovery of knife at the instance of the accused is therefore, shrouded in mystery and does not inspire confidence. The FSL reports relied by the prosecution Ex.PW20/A and E.PW20/B do not help the prosecution. Moreover, this kind of seizure without associating any public witness must always been viewed with some degree of suspicion.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.30/49 Sessions Case No.57515/2016
26. There was also the recovery of blood stained clothes of the accused several days after the incident. In this context, it is relevant to note the observation of the Supreme Court in Prabhoo v. State of Uttar Pradesh, AIR 1963 SC 1113:
"10. ..... From the mere production of the blood stained articles by the appellant, one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the SubInspector of Police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence."
40. In Deepak Chadha v. State, 2012 (1) JCC 540, this Court observed as under:
"18. We do not propose to deal with the purity of the evidence relating to the two recoveries i.e. the recovery of the shirt and the knife at the instance of the appellant, for the reason, in the decisions reported as Kalloo Passi vs. State, 2009 (2) JCC 1206; Narsinbhai Haribhai Prajapati vs. Chhatrasinh & Ors., AIR 1977 SC 1753; Surjit Singh vs. State of Punjab, AIR 1994 SC 110; Deva Singh vs. State of Rajasthan, 1999 CriLJ 265, & Prabhoo vs. State of UP, AIR 1963 SC 1113 the Supreme Court held that in the absence of other incriminating evidence, the circumstances of seizure of blood stained clothes at the instance of the accused as also the recovery of a possible weapon of offence at the instance of the accused are wholly insufficient to sustain the charge of murder against the accused."
27. Therefore, the recovery of the knife and blood stained State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.31/49 Sessions Case No.57515/2016 clothes of the accused which do not have any trace of the blood of the deceased can not be considered strong enough circumstance to link the accused with the crime.
28. Admittedly, no public witness joined in the investigation and recovery of the knife from the accused. PW2 Mohd. Ayub examined by prosecution denied his presence while arrest and recovery was affected from accused. From careful perusal of the testimony of these recovery police witnesses i.e. PW17 to PW19, it reveals that several public persons were present at the spot at the time of recovery and arrest including the PW2 but they were not made witness in the present case nor any relevant document is signed by PW2 to show his presence at relevant time. It is a serious lapse on the part of the investigating agency. It is further noted that after the incident at the spot, the presence of the public persons have been admitted but no such persons have been examined to show that accused inflicted any injury upon the deceased. It is reiterated that PW2 has not supported the case of the prosecution. No independent public witness was joined despite availability and sufficient opportunity with investigating agency to join the public witness. Merely stating that they tried to join public witness but public persons refused to join is insufficient as they had not obtained even the names of such public persons and have also failed to explain as to why the State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.32/49 Sessions Case No.57515/2016 provisions of Section 174 IPC read with Section 42 of Cr. P. C. was not brought into action against such public persons.
29. In State of Rajasthan v. Teja Singh reported as 2001 (II) AD (SC) 125, Hon'ble Supreme Court held that the failure of the prosecution to examine independent public witnesses though available is fatal to their case.
In the case tiled, State of Punjab v. Gurudayal Singh, 1992 (1) RCR (DB) 646; Roop Chand v. State of Haryana, 1989 (2) RCR 504 and State of Punjab v. Sukhdev Singh, 1992 (3) RCR 311, it was held by the Hon'ble Court that:
"where the IO has failed to even note down the names and addresses of the persons, who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful".
This court also find it relevant to refer the judgment titled Ritesh Chakavarti v. State of Madhya Pradesh (SC) 2006 (4) RCR (Crl.) 480 wherein it was observed:
"It was a busy place, the officers would expectedly asked those to be witnesses to the seizure memo who were present at the time in the place of occurrence. But not only no such attempt was made, even no body else who had witnessed the occurrence was made a witness. Even their names and addressed had not been taken. Illustration (g) appended to Section 114 of Indian State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.33/49 Sessions Case No.57515/2016 Evidence Act reads thus "The court may presume:
(g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
An adverse inference, therefore, could be drawn for nonexamination of material witnesses." (Emphasis supplied).
30. In the case titled as Nanak Chand v. State of Delhi, 1992 (1) RCR (Crl.) 412, the Hon'ble High Court of Delhi observed as under:
"The recovery was from a street with houses on both sides and shops nearby and yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public specially when they are available, may, as in the present case creates doubt. They have again, churned out a stereo typed version".
31. Hon'ble High Court of Delhi in Anoop Joshi v. State 1992 (2) C.C. Cases 314 (HC), observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.34/49 Sessions Case No.57515/2016 have been persuaded to join the raiding party to witness the recovery being made from the appellant. Ion case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
32. In the case titled as Jagdish Raj Jaggi v. State (Delhi), 1987 (2) R. Cr. R (Criminal) 1, while deciding a case under Arms Act and acquitting the accused due to nonjoining of public witness, the Hon'ble Court observed as under:
"The question is not whether the testimony of police officers should or should not be approached with a suspicion. The question is of being conscious of an inherent danger that is involved in relying upon the evidence of police officers only unless it is supported by some corroborative evidence or unless circumstances of the case sufficiently lend assurance to the court that all that is being stated by the police officers is correct. Normally speaking when a raid of this kind is arranged one should expect the police officer to involve independent witnesses. In this case the court is told that an effort was made but nobody came forward. It has been my unfortunate experience that this explanation is now being tendered in almost all cases. Normal rule is the involvement of public witnesses and if that is not followed it must be sufficiently explained as to why it was not so".
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.35/49 Sessions Case No.57515/2016
33. Despite the presence of public witnesses, not a single public witness was asked to join investigation. Further, no efforts were made in this respect. In the absence of public witnesses to the recovery and also in view of absence of any explanation as to why a public witness was not joined in the investigation, the prosecution has failed to prove the recovery of the weapon i.e. knife from the accused beyond reasonable doubt. It would be necessary to ascertain that there was no foul play on the part of the Investigating Agency and the prosecution was able to prove its case beyond reasonable doubt.
34. PW20 Dr. Ruchi Sharma, Jr. Forensic Chemical Examiner (Biology), FSL Rohini, Delhi has examined the exhibits 1, 2, 3, 4, 6a, 6b, 7, 9, 10a and 10b on 27.10.2014 vide her report Ex.PW20/A. She deposed that after examination, blood group of 'O' Group was detected on exhibits 2, 6a, 6b and 7 and there was no reaction on other exhibits. There was no blood found either on the knife Ex.P1 stated to be recovered at the instance of the accused nor any blood of deceased was found on the clothes of the accused in view of the report Ex.PW20/A and Ex.PW20/B. The mere recovery of the blood stained clothes of the accused can not be said to be a clinching circumstance that points to the unmistakable guilt of the accused particularly in view of the fact that no trace of the blood of the deceased is found on his clothes.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.36/49 Sessions Case No.57515/2016
35. 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 Mohd. Zahid, he was already in police custody and it is only thereafter that his disclosure statement 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.
36. The reports of the FSL Ex.PW20/A and Ex.PW20/B are not supported with the oral testimony of the material/eye witness PW2 Mohd. Ayub 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.37/49 Sessions Case No.57515/2016 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 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 reports Ex.PW20/A and Ex.PW20/B and the testimony of PW2 Mohd. Ayub do not correlate the version of the prosecution.
37. 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.38/49 Sessions Case No.57515/2016 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 has been charged with.
38. 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 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. The testimony of PW2 Mohd. Ayub is not sufficient to prove the identity of the accused and commission of offence.
39. 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. Further non of the persons present at the spot when police firstly reached there has been enquired or examined due to the reasons best known to the prosecution. In a case where the other circumstances have not been convincingly proved its becomes imperative for the prosecution to prove the motive for the State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.39/49 Sessions Case No.57515/2016 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 may be considered to show that within all human probability the crime must have been committed by the accused".
40. The Ld. Addl. PP for the State submitted that the accused pointed out the scene of crime and pointing out memo Ex.PW17/H 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 their 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.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.40/49 Sessions Case No.57515/2016 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 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".
41. As noted, the criminal law process was put in motion by the call make to the PCR and subsequently recording of DD No.62A. It is reiterated that PW2 Mohd. Ayub is only eye witness/material witness examined by the prosecution did not support the case completely as he claimed that he has not seen the incident at all nor he was present with the accused on the day of State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.41/49 Sessions Case No.57515/2016 incident. It is noted that there is recovery of weapon of offence from the accused used in this offence has not been proved by cogent and reliable evidence. It is noted that there is no blood on the knife recovered at the instance of accused. Further, no blood of the deceased was found on the clothes of the accused in view of the FSL reports Ex.PW20/A and Ex.PW20/B. However, recovery of blood stained clothes of accused and knife have not been proved convincingly by the prosecution as Ex.PW17/E and Ex.PW17/B (recovery memos) are not signed by any public witness whereas the places of recovery are claimed to be public places. However, there is not a single witness/public witness on disclosure statement Ex.PW17/F and point out memo of the place of incident Ex.PW17/H. Even the arrest memos Ex.PW2/B of the accused is also not signed by any public person except PW2 who turned hostile. No attempt appears to have been made by the PW19 IO SI Prem Yadav to associate any member of the public to the arrest of the accused or recovery of knife and 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.
42. It is settled law if two views are possible, then the view which favours the accused should be adopted. The Apex Court in P. State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.42/49 Sessions Case No.57515/2016 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".
43. 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.43/49 Sessions Case No.57515/2016 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".
44. In the facts and circumstances discussed above, nothing incriminating has been proved by the prosecution against the accused to bring home their guilt beyond reasonable doubt. Mere suspicion is not enough to bring home the guilt of the accused. 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".
45. It is evident that PW2 Mohd. Ayub has 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.44/49 Sessions Case No.57515/2016 seizure. The weapon of offence recovered from the accused is not having any blood stains and the clothes of the deceased do not have any blood of the deceased as per FSL reports. There is no such evidence on record to connect the accused with the incident in question with the deceased. 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.
46. It is reiterated that there is no direct evidence against the accused and only eye witness of the case examined by the prosecution i.e. PW2 Mohd. Ayub has not supported the prosecution story. It has been repeatedly pointed out by the Supreme Court that in cases of circumstantial evidence the trial Court should not succumb to the temptation of pronouncing the guilt of the accused without every link in the chain of circumstances being proved beyond reasonable doubt. Reference in this regard may be made to the decision of the Supreme Court in Ramesh v. State of Rajasthan (2011) 3 SCC 685 wherein it was opined as under:
"........ it has to be borne in mind that this case depends upon circumstantial evidence and, as such, as per the settled law, every circumstance would have to be proved beyond reasonable doubt and further the chain of circumstances should State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.45/49 Sessions Case No.57515/2016 be so complete and perfect that the only inference of the guilt of the Accused should emanate therefrom. At the same time, there should be no possibility whatsoever of the defence version being true."
47. It is relevant to note that also while some of the circumstance might indicate a strong suspicion qua the accused, such suspicion by itself will not constitute proof. There is a distance to be travelled between "must be" and "should be". The following observations of the Supreme Court in Tanviben Pankaj Kumar Divetia v. State of Gujarat, (1997) 7SCC 156 are relevant in this context:
"The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.46/49 Sessions Case No.57515/2016 accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between normal certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and must be true" and the same divides conjectures from sure conclusions."
48. 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 persons beyond reasonable doubt. PW2/only material witness Mohd. Ayub examined by the prosecution not supported its case. The alleged recovery of knife/weapon used in the commission of offence is not proved nor it contained any blood stains; nor any opinion regarding the injury being caused by the alleged weapon of offence is obtained. The testimony of DW has no relevance as it is the primary duty of the prosecution to prove the case against the accused beyond reasonable doubt and the prosecution can not take the benefit for any lapse or weakness in defence. In view of the doubtful features and infirmities in the evidence, it is not safe to rely upon the testimony of police officials and formal witnesses whose evidence needs to be scrutinized with great care and caution. There are fatal infirmities in the entire prosecution case. The entire genesis and the manner of the incident is State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.47/49 Sessions Case No.57515/2016 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 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 stabbed 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. Zahid, he is hereby acquitted of the charge for the commission of offence punishable under Section 302 IPC.
49. Family members of deceased Sunny are hereby referred to District Legal Services Authority, West for consideration of suitable compensation amount.
50. In view of Section 365 Cr. P. C., a copy of the judgment be also sent to District Magistrate concerned for information.
51. 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 State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.48/49 Sessions Case No.57515/2016 any, of the accused are discharged. Their documents, if any, retained on record be released to them against acknowledgement.
52. Case properties are confiscated to State. If no appeal is preferred by the prosecution against the acquittal of the accused within the prescribed period of limitation, the case properties be disposed off as per rules.
53. File be consigned to Record Room after necessary compliance. Gorakh Digitally signed by Gorakh Nath Pandey Nath Date: 2019.09.03 Pandey 16:46:33 +0530 Announced in the open court (Gorakh Nath Pandey) on 28.08.2019 Addl. Sessions JudgeFTC, (West) Tis Hazari Courts, Delhi.
State vs. Mohd. Zahid FIR No.594/2014, PS Nangloi, u/s 302 IPC Page No.49/49