Delhi District Court
State vs Krishan Gopal@Chhanga on 27 October, 2023
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDL. SESSIONS JUDGE (FTC - 02) :
SOUTH EAST DISTRICT
SAKET COURTS : NEW DELHI
CNR No: DLSE-01-001073-2018
SC 71/2018
FIR No: 553/17
PS: Jaitpur
U/s: 302/506/34 IPC r/w Section 25 and 27 Arms Act.
1. The State
Versus
1. Kirshan Gopal @ Chhanga
S/o Sh. Nand Lal
Address - H.No. 1110, J J Colony Raj Nagar, Madanpur Khadar,
Phase III, New Delhi.
2. Sunny
S/o Sh. Shiv Kumar @ Ghodu
H.No. 395, J J Colony, Raj Nagar, Madanpur Khadar Phase III,
New Delhi.
....ACCUSED PERSONS
Date of Institution : 03.02.2018
Judgment reserved on : 09.10.2023
Date of Decision : 27.10.2023
JUDGMENT
1. The accused persons have been sent to face trial for an offence of murdering the deceased Asif Khan S/o Jalaluddin, FIR No: 553/2017 Page 1 of 58 aged 21 years, punishable U/s 302/506/34 IPC r/w Section 25 and 27 Arms Act.
Briefly stated the facts that had given rise to filing of the present charge sheet are succinctly given as under :-
On 06.11.2017, after receipt of DD no. 55-A, SI Rajiv Kumar along with Ct. Supreet reached the spot at H.No.354 J.J. Colony, Phase-III, Madanpur Khadar, where they came to know that injured had already been taken to hospital by his family members. In the mean time, other police staff from PS had also reached there and after leaving the said staff for local enquiries, SI Rajeev along with Ct. Supreet reached AIIMS Trauma Center where one Asif Khan S/o Jalaluddin aged 21 years was found admitted vide MLC no. 500060048/17. As per the contents of the MLC, the alleged history was given by the father of accused of assault by known assailants with knife, after which patient was brought to JPNATC AIIMS by his father in a state of cardiac arrest with pupils fixed and dilated and negative dolis eye odeflex, patient was declared brought dead on arrival. No eye witness was found at the hospital. Thereafter, SI Rajeev along with Ct. Supreet reached back at the spot where he met the eye witness one Jabaaz S/o Yusuf Khan R/o 1001, Raj Nagar, JJ Colony, Part-III, New Delhi, aged 17. The IO recorded his statement wherein he had stated that he was residing at the given address with his family and use to work as decorator in the birthday parties. On the date of incident i.e. 06.11.2017, at about FIR No: 553/2017 Page 2 of 58 08:30 PM, he along with his friend had gone to eat eggs at a rehdi near mother dairy JJ Colony, Part-III at the corner of street of Sai Mandir. When they were eating eggs, then another friend of his namely Asif also reached there and started talking to them. In the meantime, Shanti S/o Shiv Kumar along with his friend Changa S/o Nandlal came from the Sai Mandir Street at a very fast speed, Sunny was holding a lengthy knife in his hand and soon after his arrival, he had hit Asif with the knife on his head. Immediately after sustaining the knife injury, Asif ran towards a narrow street to save himself but he was followed by both Sunny and Changa. Complainant along with his friend also chased them to save Asif from the clutches of accused persons. However, after reaching in the street they saw that Asif was held from his collar by Changa and was given beatings with kicks and fits and Sunny had given a stab injury in his stomach on left side. When complainant and his friend rushed towards them, then accused Sunny started waiving the knife in the air and threatened to kill anybody who would come in front of him and thereafter, both of them had fled away from the spot. Though, Asif had tried to walk but he had fallen down. Thereafter, complainant and his friend had taken Asif to his house from where, his father had taken him to the hospital. Both the accused persons were stated to be residents of same colony and later on, he came to know that Asif had expired. Hence, appropriate legal action was warranted in this case.FIR No: 553/2017 Page 3 of 58
On this statement, IO made his endorsement and prepared rukka and handed over the same to Ct. Supreet for registration of the case. After registration of the case, the further investigation was assigned to Insp. Sanjay Sinha who was the then SHO of PS Jaitpur. Thereafter, IO along with Ct. Supreet reached the spot where he met SI Rajeev Kumar. IO inspected the spot and also met one Shibbu @ Imtiyaz Khan, S/o Mohd. Ishtiak Khan, who was another eye witness of the incident. He also met complainant and at his instance, prepared the unscaled site plan of the spot. On his instruction, Inspector Anwar Khan got the postmortem of the dead body conducted at the AIIMS Trauma Center and dead body after postmortem was handed over to the family members of the deceased for performing his last rites.
On 07.11.2017, the police team obtained mobile number of accused Krishan Gopal @ Changa from a secret informer and its CDR location reflected his presence at New Delhi railway station. Thereafter, with the aid of secret informer and upon his identification, both the accused persons were apprehended and arrested from New Delhi railway station towards Paharganj side. Both the accused persons had confessed to their crime and were later on arrested in this case and their personal search was also conducted, during which, one steel type metal piece was recovered from the right side pocket of the pant of accused Sunny, who upon enquiry, disclosed it to be a part of the said buttondar knife with which he had murdered Asif and the FIR No: 553/2017 Page 4 of 58 said portion was stated to be the broken piece of the handle of that knife. The sketch of said knife piece was prepared by the IO and same was sealed and taken into possession. Disclosure statements of the accused persons were also recorded along with statements of other witnesses and after completion of investigation, the charge sheet was prepared and filed before the Court on 03.02.2018 before the Ld. MM. The cognizance of offence was also taken by the Ld. MM against the accused persons on the very day when matter was also remanded to sessions for 07.02.2018.
2. Vide order dated 06.03.2018, charge for an offence u/s 302/34 was framed against accused Krishan Gopal and for an offence U/s 302 /34 IPC r/w Section 25/27 Arms Act was framed against accused Sunny. Both of the accused persons had pleaded not guilty and claimed trial.
3. In order to prove the guilt of accused persons beyond any reasonable doubt, the prosecution had examined 26 witnesses in all for the purpose of better appreciation of their testimonies.
However, for the sake of convenience, it shall be prudent to divide the witnesses into two categories i.e. the formal as well as material witnesses.
(A) At the outset, I would like to discuss the testimonies of the formal witnesses at the first instance:
FIR No: 553/2017 Page 5 of 58PW-3 Ct. Dharam Singh, No. 1725/SE, PS Okhla, was stated to be posted as Constable in PS Jaitpur on 14.12.2017, when upon directions and instruction of IO/Inspector Sanjay Sinha, he had obtained nine sealed pullandas alongwith FSL forwarding letter and other documents from MHC(M) vide RC No.206/21/17 & 207/21/17. The photocopy of which were placed on record as Ex.PW3/A & B (OSR) respectively, bearing his signatures at point-A and had deposited the same at FSL, Rohini and had also obtained receipts from there which was deposited by him with MHC(M) on his return to PS. Photocopies of receipts were Ex.PW3/C & D (OSR) respectively. The case property was stated to have remained intact as long as it remained in his possession and was not tampered with in any manner.
During his cross examination conducted by Ld. Defence Counsel for both the accused persons, he could not recollect the DD number of his departure from PS and denied the suggestion that he was an interested witness being a police official. He had no knowledge about DD number of his arrival entry at PS after deposition of the case property.
PW -4 Sh. Babu Khan, S/o Mohd. Jalaluddin, aged about 29 years, R/o House No. 354, J. J. Colony, Phase-III, Madanpur Khadar, who was a witness to the identification of dead body of his deceased brother Asif and his statement to this effect was also recorded by the IO. He was stated to be present at FIR No: 553/2017 Page 6 of 58 his rehdi at Nehru Place on 06.11.2017 at about 09:00 PM, when he had received a phone call from one Sibu who was the friend of his late brother and who had informed him that accused Sunny and Changa @ Krishan Gopal had stabbed the deceased. After which, he was stated to have visited AIIMS Trauma Center where his brother was declared brought dead. However, this portion of his testimony is inadmissible in evidence being based on hear- say.
During his cross examination conducted by Ld. Defence Counsel, he had stated that though IO had recorded his statement but same was not read over to him. Even his father Mohd. Jalaluddin had also given the statement which was recorded by the IO but same was also not read over to his father. He could not tell the mobile number of Shibu from which he had received the information. Suggestion put to him to the contrary that no such information was ever given to him by Shibu and hence he was not able to recall his mobile number, was denied by him as wrong. He was stated to have not disclosed to the IO that he was informed by Shibu about accused Sunny and Changa having stabbed his brother and murdered him. Formal suggestions were also denied by him as wrong and incorrect. However, it was admitted by him that first of all, his father had reached the hospital followed by him after receipt of information. Even his father had not disclosed to him as to how his brother was murdered.FIR No: 553/2017 Page 7 of 58
PW-5 Dr. Krishna Kumar Singh, Senior Resident, Department of Forensic Medicine, AIIMS, was stated to be working in AIIMS Trauma Center on 07.11.2017 and had conducted the autopsy of dead body of Asif Khan which was concluded by him at 03:45 PM. Several wounds were found on the body of deceased which were documented by him from injury no. 1 to 4 and in his opinion, the cause of death was hemorrhagic shock thoraco-abdominal injuries caused by pointed sharp weapon. All injuries were stated to be ante-mortem in nature and injury no. 2 as mentioned in his report was sufficient to cause death in the ordinary course of nature. Viscera, blood in gauze, nail clipping and clothes of deceased were preserved and handed over to IO with sample seal. He had also placed on record, his postmortem report Ex.PW5/A, bearing his signatures at point-A. During his cross examination conducted by Ld. Defence Counsel, he was stated to have received total 11 papers for conducting the postmortem at 02:30 PM on 07.11.2017 which were handed over back by him along with postmortem report. The death summary report submitted with him by the the IO was Ex.PW5/DI and the MLC was Ex.PW5/D2. He had admitted about the factum of an endorsement about patient having brought dead on arrival from point A to B in Ex.PW5/D2. The MLC was not stated to have been prepared by this witness on his observation, hence he could comment upon the injuries FIR No: 553/2017 Page 8 of 58 mentioned therein. The request letter defining short summary of case was placed by him on record as Ex.PW5/D3.
He had denied the suggestion that he had mentioned the injuries as stabbed wound as found by him on the body of deceased in his report Ex.PW5/A, after relying upon the documents furnished to him by the police. Though it was admitted by him that he had not commented upon margins of wound while examining the injuries on the dead body, nor he had examined the healing process of any of those injuries as it could not have been observed by necked eyes. It was further admitted by him that healing process was an important factor for determining the age of injuries. It was also admitted by him that he had observed rigormotis present upon all over the body and postmortem stains on the dependent part of the body which were essential ingredients to determine the time since death but same was not mentioned by him in his report Ex.PW5/A. Formal suggestions were denied by him as wrong and incorrect.
PW-6 Sh. Ajay Kumar, Nodal Officer from Bharti Airtel Ltd., 224, Okhla Phase-III, New Delhi had placed on record the KYC and CDR of phone number 9121429224, which was issued in the name of Vijada Nagamani. The computerized application of the said connection was placed on record as EX.PW-6/A and CDR of the said number from 05.11.2017 till 07.11.2017 is Ex.PW-6/B and certificate of under Section 65-B of Evidence Act regarding the print out of said exhibits was FIR No: 553/2017 Page 9 of 58 placed on record as Ex.PW-6/C, all bearing his signature and seal at point A. During his cross examination conducted by Ld. Defence Counsel, he was stated to be posted as Nodal Officer from 5.11.2017 till 07/11/17 as well and had also admitted that Ex.PW-6/B did not contain the column of server but denied the suggestion of the said document being a manipulated document to suit the convenience of the IO didn't contain that column. It was admitted by him that the document Ex.PW-6/A was not supported by any verification report of the consumer as it was based on the Aadhar card of consumer but denied the suggestion regarding said document being a fictitious document. Formal suggestions were also denied by him as wrong and incorrect.
PW -7 Dr. Bhargava Ram Konuri, Assistant Divisional Medical Officer, Talcher Health Unit, Khurda Road Division, East Coast Railways, was stated to be posted as Junior Resident / Doctor in the department of emergency AIIMS on 23.12.2017, when he had examined one Sunny, S/o Shiv Kumar, brought by SI Rajiv Kumar vide MLC no.12074/17 and also collected his blood sample which was later on sealed with the seal of AIIMS and handed over to IO. The MLC was placed on record as Ex.PW-7/A bearing his signature at point A and B. Similarly, he had also examined Krishan Gopal on the said day itself vide MLC no.12073/17 and his blood sample was also FIR No: 553/2017 Page 10 of 58 collected and handed over to IO and the MLC was placed on record as Ex.PW-7/B, bearing his signature at point A and B. During his cross examination conducted by Ld. Defence Counsel, he had stated that both the MLCs did not contain the consent obtained from the concerned persons whose blood samples were collected by him. Similarly, it was also not mentioned by him whether those persons whose blood was taken by him were in police custody or were free. No permission from court was available for taking the blood samples. Formal suggestions were denied by him as wrong and incorrect.
PW-8 is Sh. Amit Kumar, Teacher from Govt. Boys Senior Secondary School, J.J. Colony, Madanpur Khadar, who was stated to have been authorized by his principal to produce original records of Sunny S/o Shiv Kumar Ram and Kalawati Devi, R/0-395. Phase III, J.J. Colony, Madanpur Khadar, and as per school records brought by him, Sunny had taken admission in the school on 01.04.2009 in class 6th vide admission no. 1996 and his name was struck off due to continuous absence on 22.08.2012 when he was in class 9". The copy of admission and withdrawal register has been placed on record as Ex.PW-8/A (OSR). The copy of admission Form has been placed on record as Ex.PW- 8/B (OSR), and transfer certificate issued to Sunny of 5 th class school and deposited in his school has been placed on record as Ex.PW-8/C (OSR).
FIR No: 553/2017 Page 11 of 58During his cross examination conducted by Ld. Defence counsel, it was admitted by him that the documents produced by him before the court were not pertaining to first attended school of Sunny. However, he was not having any other document pertaining to first attended the school of Sunny or carrying his actual age and date of birth. Similarly, he could not tell as to who had filled the date of birth in the transfer certificate of Sunny which was issued to him after passing class 5th .
PW -9 HC Sanjay Kumar, No. 7910/DAP, 3rd Bn, Vikaspuri, was stated to be posted at PS Jaitpur as HC and was working as duty officer from 4 pm to 12 midnight, on 06.11.2017, when at around 8.40pm, he had received a call through Wireless Operator in the DO room regarding stabbing incident of a boy in a scuffle which was entered by him vide DD No. 55A, the copy of which was placed on record as Ex. PW9/A (OSR) and the DD was stated to have been handed over by him to SI Rajiv for further proceedings.
Despite availing an opportunity, this witness was not cross examined by Ld. Defence Counsel.
PW-10 Insp. Mukesh Kumar Jain, D-253, Draftsman, Southern Range, Hauz Khas, had deposed that on 22.12.2017 , on the request of IO/SHO Inspector Sanjay Sinha, he had visited the spot and taken its measurements and prepared rough notes and on the basis of which, he had prepared the scaled site plan while remaining in his office on 26.12.2017 and had FIR No: 553/2017 Page 12 of 58 handed over the same to the IO. The scaled site plan was Ex.PW10/A, bearing his signature at point-A. During his cross examination conducted by Ld. Defence Counsel, it was admitted by him that Ex. PW10/A was not based upon the initial site plan prepared by the IO, as he had not seen the same. The points A to D as shown in site plan Ex. PW10/A were pointed out to him by the IO of the case. 1 cm in the site plan was stated to be representing 100 cm, however, the said site plan did not reflect the time of its preparation. The rough notes prepared by him were not annexed with the said plan. He had denied the suggestion that no rough note was prepared by him during inspection of the spot and the the site plan Ex. PW10/A was prepared by him on the instruction of the IO without actually visiting the spot in connivance with the IO. Distance between point A to D was stated to be around 40 meters. He could not tell if the house of deceased was also shown in the said site plan or not. It was though admitted by him that IO had not pointed out to him the house of deceased during his inspection of the spot nor IO had disclosed the names of residents' on both sides of the lane at point B and C. Formal suggestions were denied by him as wrong and incorrect.
PW-11 is Dr. Vikas Gondaliya, Jr. Resident, AIIMS Trauma Centre, who had examined one injured Mamta and Asif on 05.11.2017 while working as Jr. at AIIMS and placed on record their MLCs as Ex. PW11/A and PW11/B respectively, FIR No: 553/2017 Page 13 of 58 both bearing his signatures at point A and nature of injuries on both the MLCs were opined to be simple.
During his cross examination conducted by Ld. Defence Counsel, he had admitted that he had not mentioned the length of laceration on Ex. PW11/A nor the weapon of offence was mentioned by him on the said document including the duration of injury. Though injured Asif was brought before him at about 09:00 PM for preparation of MLC Ex. PW11/A, however, it was not mentioned as to by whom he was brought there. The patient in MLC Ex. PW11/B was examined by him at about 9.13 pm but he had not mentioned as who had brought the said patient for medical examination. He had further admitted that though it was necessary to have mentioned the mark of identification of the patient but no such mark was mentioned by him in Ex.PW11/B. Similarly, the weapon of assault and age of injuries were also not mentioned by him in Ex.PW 11/B nor he had mentioned the length of laceration. The said injury could also been a self inflected injury in his opinion. Formal suggestions were denied by him as wrong and incorrect.
PW- 13 is HC Manoj Kumar, No. 735, South East, (as on the date of deposition no. 1624 PCR). This witness was stated to be working as DO at PS Jaitpur on 05.11.2017, and had placed on record the copies of DD no. 52A, 53A, 55A & 72A as Ex. PW13/A to Ex.PW13/D. FIR No: 553/2017 Page 14 of 58 During his cross examination conducted by Ld. Defence Counsel, DD no. 72A was stated to have been sent from Hospital by Duty Const. Pawan on telephone. IO had not recorded his statement in compliance of the endorsement of DD no. 72A. Suggestion regarding contents of DDs was admitted by him as correct. He had denied the suggestion that entire case was manipulated against the accused persons who were falsely implicated in this case.
PW-14 ASI Maharaj Singh, No. 2773, PS Nizaummudin, was stated to be working as DO at PS Jaitpur on 07.11.2017 from 12 Midnight till 08:00 AM, when Ct. Supreet came to the PS at about 12:25 AM alongwith Rukka sent by SI Rajeev Kumar for registration of FIR. On the basis of said Rukka, he had registered said FIR Ex. PW14/ A bearing his signatures at point-A and had also made an endorsement Ex. PW14/ B on rukka, bearing his signatures at point-A. He had also issued certificate under Section 65-B of Indian Evidence Act vide Ex. PW14/C bearing his signatures at point-A and also recorded DD No. 6A, Ex. PW14/D bearing his signatures at point-A. He had also placed on record DD no. 8A Ex. PW14/E (OSR) bearing his signatures at point-A and copy of FIR was stated to have been sent to Ld. MM, Joint CP, ACP through special messenger Ct. Sunil Kumar on the same day itself.
During his cross examination conducted by ld. Defence Counsel, he was stated to have not brought the Chitha FIR No: 553/2017 Page 15 of 58 register on the date of his deposition before the court, however, he had denied the suggestion that FIR in the case was registered at a highly belated stage after consultations, deliberations and concoction on the basis of doubts against the accused persons or that he had acted in connivance with the IO to manipulate the registration of FIR. He had no knowledge about handwriting appearing on rukka Ex. PW12/A. The other formal suggestions were denied by him as wrong and incorrect.
PW-15 Ct. Mukhtar Ahmad, No. 1699/SE, PS, Okhla, was stated to be posted as constable at PS Jaitpur on 07.11.2017 and he had joined investigation in the present case along with IO, SI Rajiv, HC Rajinder and Ct. Purshottam and had left the PS at 2pm in search of both accused persons. They alongwith secret informer had reached Paharganj side of New Delhi Railway Station where mobile location of accused Chhanga was detected. Search for accused persons was made and in the meantime, on the pointing out of secret informer, both the accused persons who were present near the parking area of Paharganj side New Delhi Railway Station were cordoned and apprehended. After inquiries, IO had arrested both of them and their personal searches were also conducted vide memos Ex. PW15/A to Ex.PW15/D and during cursory search, one broken piece of knife was recovered from right side pocket of wearing pant of accused Sunny and Sunny had disclosed it to be a part of said knife, which was used by him in commission of offence. Thereafter, both the accused persons were brought to the police FIR No: 553/2017 Page 16 of 58 station with case property, where their wearing clothes were changed and were separately sealed in pullandas vide memo Ex.PW15/E and F, and during personal search of accused Chhanga, two mobile phones, one of make Samsung and other of Micromax were recovered, besides two blankets in his hand. The sketch of the broken piece of the knife Ex. PW15/G, was also prepared by the IO and same was seized vide memo Ex.PW15/H, thereafter, accused were got medically examined from the hospital. Their disclosure statements Ex. PW15/I and PW15/J were also recorded by the IO who had also prepared pointing out memo of the place of occurrence Ex. PW15/K, all the memos were stated to be bearing his signatures at point A. On 9.11.2017, he had again joined investigation of this case again along with IO/Insp. Sanjay Sinha, SI Rajiv Kumar, Ct. Purshottam and Sh. Jalaluddin, father of deceased and both the accused persons had led the police team to Peepal Tree at a distance of about 100 meters towards Yamuna River from Police Chowki, Pusta Road, JJ Colony, Madanpur Khadar and got recovered one button actuated knife from the ground beneath the said peepal tree which was stated to have been the weapon of offence. IO had measured the said knife and prepared its sketch already Ex. PW1/C and seized the same vide memo Ex. PW1/D, both bearing his signature at point B. Even the site plan of the place of recovery was also prepared by the IO Ex. PWI/E. Seal after its use was handed over to SI Rajiv by the IO. Thereafter, all of them had returned to PS. Both the accused were stated to FIR No: 553/2017 Page 17 of 58 have been identified by this witness if shown to him but their identity was not disputed by Ld. Defence Counsel. He had also identified the knife as Ex.P1 one piece of metal part of knife is already Ex. P2, lower and t-shirt of Krishan Gopal Ex. P3 (colly) and full sleeves shirt and jeans pant of Sunny as Ex. P4.
During his cross examination conducted by Ld. Defence Counsel, he had admitted that IO had neither taken the roaster register/chitha from him nor he had handed over the same to the IO. He could not remember DD number, vide which he had joined the investigation and it was further admitted that his departure entry was not mentioned in his statement u/s 161 Cr.P.C. nor it was mentioned as to by which vehicle, they had gone to New Delhi Railway Station.
Though IO was stated to have requested public persons such as parking attendant, Collie and public at large to join the investigation but none had agreed but no one was served any legal notice by the IO in this regard. He had no knowledge if the parking area at New Delhi Railway Station had fallen within the jurisdiction of Railway Police or not. However, it was admitted by him that the whole parking area was surrounded by CCTV cameras. It was also admitted by him that no notice was served by the IO upon any RPF personnel to join the investigation. However, he could not admit or deny, if IO had tried to seize the CCTV footage of the area or not.
FIR No: 553/2017 Page 18 of 58It was also admitted by him that after preparation of arrest memo, personal search of the accused Sunny was conducted by the IO but the piece of knife was not recovered and hence, it was not so mentioned in his personal search memo. However in the same breath it was stated again that piece of knife was already recovered from the pocket of accused Sunny during his cursory search. Suggestion put to him to the contrary was denied by him as wrong.
It was also admitted by him that Pusta Road going towards Khadda Colony was a conjusted and busy road. Though, IO was stated to have requested public persons to join the investigation at Pusta Road at the time of recovery of weapon of offence but they had refused join and IO had not served any legal notice upon those public persons. No videography of alleged recovery was done by the IO nor crime team was called by the IO to lift any chance prints from the recovered knife.
He had denied the suggestion that no knife was recovered at the instance of accused Sunny from the place as cited by him or that he had also never joined investigation of this case and had signed all the documents at PS at the instance of IO and he was not even present at the time of apprehension of accused persons from parking area of New Delhi Railway Station. The other formal suggestions were also denied by him as wrong and incorrect.
FIR No: 553/2017 Page 19 of 58PW-16 SI Harish Chander Pathak, No. D-1933, CPCR, PHQ, IP Estate, was posted as Nodal Officer, CPCR, PHQ on 06.01.2018, and on the request of IO, he had handed over him certified copy of 4 PCR forms Ex. PW16/A to Ex.PW16/D along with certificate u/s 65B Indian Evidence Act Ex. PW16/E bearing his signature at point A. During his cross examination conducted by Ld. Defence Counsel, he was stated to be directly working under control of Inspector (Tech) however, signature of aforesaid Insp. (Tech) were not obtained on the PCR forms in question. He had denied the suggestion that certificate Ex.PW16/E was manipulated and prepared at the direction of the IO to create false evidence in this case.
PW-17 Ct. Mahipal, 1545/SE, PS Lajpat Nagar, was stated to be posted as constable at PS Jaitpur. On 03.01.2018, when on the instructions of IO, he had obtained two sealed pullandas alongwith sample seal and FSL form pertaining to present case from Malkahana vide RC no. 5/21/18 and had deposited the same at FSL Rohini and also obtained acknowledgment receipt which after his return to PS was handed over to MHC(M). No tempering was stated to have been done in the case property as long as it had remained in his possession.
During his cross examination conducted by ld. Defence Counsel, he had stated that IO had not given him any written authority to collect case property from Malkhana and FIR No: 553/2017 Page 20 of 58 deposit the same in FSL. He was stated to have made DD entry while leaving the PS for deposing the case property in FSL but no such fact found its mention in his statement recorded U/s 161 Cr.P.C. The other formal suggestions were denied by him as wrong and incorrect.
PW-18 Ct. Sunil, No.5121-DAP, 7th Blt. Malviya Nagar, was stated to be posted as constable at PS Jaitpur on 07.11.2017, when Duty Officer ASI Maharaj Singh had handed over him four copies of present FIR in separate envelops and on his direction, he had taken the same by Govt. Motorcycle and had delivered the same at the residence of Ilaqa Magistrate at her house at Saket Residential Complex, as well as to Joint CP at his residence in Vikas Puri, to Sh. Romiyal Bania, DCP/SED at his residence at Civil Lines and to ACP Dhal Singh at his residence at Jasola, Sarita Vihar and thereafter, he had returned to PS. During his cross examination conducted by Ld. Defence Counsel, he had admitted that no time of delivery of four envelops was recorded in his statement Mark-X and denied the suggestion that he had not delivered the said envelops to the concerned officers at their respective residences. He could not place on record any document pertaining to sending of special report through him by the duty officer. The other formal suggestions were denied by him as wrong and incorrect.
PW-19 Ct. Supreet, No.4346- Security, Posted at E- Block Security, was stated to be posted as constable at PS Jaitpur FIR No: 553/2017 Page 21 of 58 on 06.11.2017 and was on night emergency duty associated with SI Rajeev Kumar. After receiving DD No.55-A regarding stabbing of one person at H.No.354 J.J. Colony, Phase-III, Madan Pur Khadar, they had reached the spot, where they came to know that injured had already been shifted to hospital by his family members. Thereafter, he alongwith SI Rajeev had reached AIIMS Trauma Center where injured Asif Khan was found admitted vide MLC No.500060048/17 and was declared as brought dead. However, no eye witness met them in the hospital. Thereafter, they returned to the spot, where eye witness Janbanj met the IO SI Rajeev Kumar whose statement already Ex.PW12/A was recorded by him and thereafter he also prepared rukka and handed over the same to this witness for registration of FIR. He had taken the rukka to PS, got the FIR registered and thereafter, handed over the copy of FIR and rukka to Insp. Sanjay Sinha and returned to the spot alongwith Insp. Sanjay Sinha where spot was inspected by the IO. ATO Insp. Anwar Khan had also reached at the spot who was directed by the IO to get the postmortem of deceased conducted. Whereas this witness was directed to have accompanied said Inspector Anwar Khan and accordingly he had accompanied him to AIIMS Trauma Center where dead body was got shifted to Mortuary and its postmortem was got conducted and dead body, after postmortem was handed over to the relatives. The doctor concerned had also handed over him 4 sealed exhibits having seals of FORENSIC MEDICINE JPNATC AIIMS NEW DELHI' along with sample seal which were brought to the PS and handed over to the IO who had FIR No: 553/2017 Page 22 of 58 seized the same vide seizure memo Ex.P.W19/A bearing his signatures at point-A. On 11.11.2017, he had again joined investigation of this case and on the direction of IO, had gone to AIIMS Trauma Center Mortuary where concerned doctor had handed over him one sealed cloth pullanda having seal of FORENSIC MEDICINE JPNATC AIIMS NEW DELHI containing cloths of deceased which was brought by him to PS and handed over to IO, who had seized the same vide memo Ex.PW19/B bearing his signatures at point-A. No tampering of the case property was stated to have been done as long as it had remained in his possession.
During his cross examination conducted by Ld. Defence Counsel, the DD no.55-A was stated to be pertaining to the incident of stabbing. However, no information about name of assailants and injured were mentioned in the same. It was also admitted by him that when an information was received through PCR, then the said information was also automatically got recorded in the PCR Book. IO had not noted down the name of informant who had inform him about shifting of injured to hospital. MLC was stated to have been immediately collected by the IO after reaching AIIMS Trauma Center. However, he could not tell, if name of the assailants was mentioned in the MLC of deceased or not as he had not seen it.
He had further stated that he had not seen as to by whom deceased was brought to the hospital and had denied the FIR No: 553/2017 Page 23 of 58 suggestion that Jalaluddin, father of deceased Asif was present at the hospital and purposefully he was concealing this fact before the Court or that during his interrogation at the hospital, Jalauddin had told them that he had no knowledge about the persons who had stabbed his son.
They had returned from hospital to spot where spot was pointed out by eye witness Janbaz and denied the suggestion that Janbaz had not pointed out the place of occurrence. Since he had neither heard or read the statement of Janbaz, hence, he could not say if he had stated that he and Shibu had found the injured in the lane in stabbed condition near his house and out of humanity, they had taken him to his house. However, it was admitted by him that signatures of Janbaz were obtained by IO in his presence. Though, there was a temple situated near the spot but no priest or any person offering prayers was called by the IO or was inquired by the IO in his presence. Formal suggestions were denied by him as wrong and incorrect. The site plan Ex.PW19/DA was also placed on record by him during his cross examination.
PW-20 SI Rajiv, D-1547, PS Pul Prahlad Pur, is the first IO of this case who had deposed that on 06.11.2017, he was posted as SI at PS Jaitpur and he had received DD no.55-A regarding stabbing of a boy at H.No.354, Punarwas Colony, Madanpur Khadar, Jaitpur, Delhi. Thereafter, he alongwith Ct. Supreet had reached at the spot at about 9.00 p.m. where he came FIR No: 553/2017 Page 24 of 58 to know that injured had already been shifted to AIIMS Trauma Center. No eye witness met them at the spot. In the meantime, some staff from the PS had also reached the spot who was left for preservation of the spot and he alongwith Ct. Supreet had proceeded for AIIMS Trauma Center where deceased Asif was found admitted while declared brought dead. He collected his MLC. No eye witness met him in the hospital. Thereafter, they returned to the spot where he met eye witness Janbaz. He recorded his statement already exhibited as Ex.PW12/A bearing his signatures at point-B and thereafter, he prepared rukka Ex.PW20/A bearing his signatures at point A and got the FIR registered through Ct. Supreet.
After some time Ct. Supreet along with IO Insp. Sanjay Sinha (then SHO) and other staff had reached at the spot which was inspected by the IO. Thereafter, they had tried to search accused persons and IO had received one mobile number from a secret informer after which, he also received CDR detail and location chart of said mobile number which reflected the location of number at New Delhi Railway Station. Thereafter, a raiding party comprising of this witness, IO himself and HC Rajender, Ct. Mukhtyar, Ct. Purshottam along with secret informer was formed and all of them reached the spot at New Delhi Railway Station on 07.11.2017 at about 2.00 PM, where at the instance of secret informer, those accused persons were apprehended whose identities were later on established as Sunny and Krishan Gopal @ Chhanga, when both of them were coming FIR No: 553/2017 Page 25 of 58 near railway parking Pahar Ganj side of New Delhi Railway Station. Both of them were interrogated and arrested vide memos Ex.PW15/A to Ex.PW15/D bearing his signatures at point-B and disclosure statements of accused Sunny and Chhanga were recorded vide Ex.PW15/1 and Ex.PW19/J bearing his signatures at point-B respectively and during the search of Sunny, a piece of metal forming the piece of knife was recovered from the right side pocket of pant which was measured and its sketch was prepared by the IO Ex.PWI/G and seized vide memo Ex.PW15/H. Thereafter, accused persons had also led them to the place of occurrence, where IO had prepared pointing out memo Ex.PW15/K and both of them were brought to PS with case property where their wearing cloths were got changed by providing them other cloths and were seized separately by the IO with the seal of 'SS' and seized vide memos Ex.PW15/E and Ex.PW15/F, all bearing his signatures at point-B. On 09.11.2017, he had joined the investigation again with other police officials and IO when accused persons had led to the recovery of weapon of offence from the place already mentioned by PW-19 during his deposition. Other averments of PW-19 were also reiterated by this witness as well.
On 23.12.2017, again he had joined investigation and after obtaining permission of the Court and on the directions of IO, he got the blood samples of both the accused persons collected at AIIMS Hospital and brought the same and handed FIR No: 553/2017 Page 26 of 58 over to IO who had seized the same vide memo Ex.PW20/B bearing his signatures at point-A. He had correctly identified the accused persons and case property from Ex. P1 to P4.
During his cross examination conducted by ld. Defence Counsel, he was stated to have not brought the duty roster register to show that he was on duty at the relevant point of time on 06.11.2017 nor the DD entry of his arrival at PS was placed on record. It was also admitted by him that Ex.20/A was not his arrival entry in the PS. He could not remember as to who had brought the deceased to the hospital, however, admitted that in the column of relative in the MLC, "father" was written. He had denied the suggestions that he was concealing the true facts from the court. He had not mentioned in his tehrir about the person who had brought the deceased to hospital and denied the suggestion that father of deceased had met him in the hospital and had given him detailed version of the incident or that father of deceased had told him that it was a blind murder case and and none had seen the incident and had also disclosed to him that two boys had brought the deceased in an injured condition at his home from the lane in front of his house but he had deliberately not recorded his statement at PS. He had though admitted that when he came back from the Hospital at the spot, Jalaluddin had not met him. However, Zabaz was stated to be present there whose statement was recorded by him.
FIR No: 553/2017 Page 27 of 58He had denied the suggestion that signatures of Zabaz were obtained by him on blank papers which were later on converted into documents by him and had cooked up a false story on the said blank papers in connivance with father of deceased i.e. Jalaluddin.
On 06.11.2017, he could not remember, if he had made any enquries about father of the deceased or not. It was also denied by him that Jabaz had told him that he along with Shibu had found the injured/deceased in an injured condition lying in the lane and had brought him to his house and handed over to his father who had brought him to the hospital.
It was though admitted by him that IO had not recorded the statement of any of the family members of the deceased in his presence including his father. At the time of his visit to the spot, he had not met any rehriwala selling eggs and had no opportunity to make inquiry from said rehriwala. IO had not found any blood at the spot in his presence nor even blood was seen in the lane of incident.
Though he(IO) had made enquiries from local persons about the incident in his presence but he could not tell the number of persons who were so enquired by him and whether IO had noted down their names and addresses or not. He could not tell the exact time as to when the mobile phones of accused persons were traced. He could not remember, if IO had ever visited the house of accused persons or not but had admitted that FIR No: 553/2017 Page 28 of 58 till arrest of the accused persons and even till alleged recoveries from the accused, he had remained associated with the IO but denied the suggestion that both accused persons were falsely implicated in the present case and because of this reason, IO had not made any visit to their respective houses for their arrest.
It was admitted by him that accused were arrested from the parking area towards Paharganj and seizure memo was also prepared by the IO in his presence and no independent witness had signed the same in respect of recovery of metal piece of knife. However, it was denied by him that since the said memo was a manipulated document, hence, no public witness had signed the same. No chance prints were stated to have been lifted from the knife allegedly recovered at the instance of accused persons nor any sample finger prints of the accused were obtained by the IO in his presence. The other formal suggestions were denied by him as wrong and incorrect.
PW-21 is Ct. Purshottam, No. 2960/SED, PS Okhla, who was stated to be posted as Constable at PS Jaitpur on 07.11.2017, when he had joined the investigation of this case along with SI Rajiv Kumar, Ct. Mukhtyar, HC Rajender and IO/Insp. Sanjay Sinha and left PS in search of accused persons. As per CDR location of accused, he was shown to be active in New Delhi Railway Station area. They reached at New Delhi Railway Station at 2.00 p.m. and at the instance of secret informer, they apprehended both the accused persons who were FIR No: 553/2017 Page 29 of 58 seen coming near railway parking from Pahar Ganj side of New Delhi Railway Station. After interrogation, they were arrested and their personal searches were conducted vide memos Ex.PW15/A to Ex.PW15/D and disclosure statements Ex.PW15/1 and Ex.PW19/J were also recorded by the IO. During search of accused Sunny, one piece of metal which was stated to be the piece of knife used as weapon of offence in this case was recovered from his right side pocket of the pant. It was measured and sketch was prepared by the IO vide Ex.PW15/G and later on, it was seized vide seizure memo Ex.PW15/H, thereafter pointing out memo Ex.PW15/K was also prepared by the IO at the instance of accused persons. Later on they were brought back to PS with case property. In the PS, their cloths were changed and original clothes were taken into possession vide memos Ex.PW15/E and Ex.PW15/F, all bearing his signatures at point-C. Case property was later on deposited in the malkhana.
On 09.11.2017, he had again joined the investigation when the recovery of weapon of offence was stated to have been made by the IO at the instance of the accused Sunny. He had also identified the case property as Ex.P1 to P4 collectively.
During his cross examination conducted by Ld. Defence Counsel, it was stated by him that he had no document to show that he was on duty at PS Jaitpur on 07.11.2017 and denied the suggestions that his statement and evidence was FIR No: 553/2017 Page 30 of 58 manipulated by his superior officer to falsely implicate the accused persons. It was also denied by him that all the documents were signed by him at a later stage and not on 07.11.2017. It was admitted by him that his statement was recorded by the IO on 07.11.2017 and further that no departure entry was mentioned in the aforesaid statement of this witness. It was also admitted by him that during entire proceedings, no evidence was collected by the IO regarding the ownership of phone number 9121429224. Accused were stated to have been spotted at around 04:00 PM. He alongwith Mukhtyar was in plain cloths, however he could not remember about other members of the raiding party as to whether they were in uniform or in plain cloths. He had no knowledge about the person who was managing the new Delhi Railway Station taxi parking but denied the suggestion that accused persons were not apprehended from the parking and they were brought from their respective houses and arrested in the PS. No public person was stated to have been called from the vicinity to join the arrest proceedings of the accused persons.
In his further cross examination conducted on 08.05.2023, IO was stated to have not recorded the statement of any parking attendant of Railway Parking in his presence. Though it was admitted by him that CCTV cameras were installed in the vicinity of the place of apprehension of accused persons, however, IO had not made any attempt to seize the CCTV footage in his presence. He had again denied the suggestion that accused persons were not arrested from spot as FIR No: 553/2017 Page 31 of 58 stated by him and that is why, no inquiry from the parking attendant was made by the IO. Other formal suggestions were also denied by him as wrong and incorrect. However, it was admitted by him that Pushta Road towards Khadda Colony was a very congested road but the IO had not requested any public person to join the investigation at Pushta Road in his presence nor the proceedings of recovery were got videographed nor crime team was called to trace out any chance print from the recovered knife.
PW-22 is Insp. Anwar Khan, DI- 170, P S Jaitpur, New Delhi who was stated to be posted as ATO on 07.11.2017 at PS Jaitpur, when on the instruction of IO/Insp. Sanjay Sinha, he had joined the investigation of this case and got the postmortem of the deceased conducted from AIIMS Trauma Center whose body was identified by identification memo Ex. PW22/A and the dead body after postmortem was handed over to relative of deceased. He had also filled form no. 25.35 B Ex.PW22/B both bearing his signatures at point-A. During his cross examination conduced by ld.
Defence counsel, IO was stated to have not handed over any death summary and only MLC was handed over to him as per which, deceased was declared brought dead and was shifted to Mortuary of AIIMS. However, there was no document available with him which could have shown that dead body of deceased was not tempered after its shifting to mortuary. It was also FIR No: 553/2017 Page 32 of 58 deposed by him that father and brother of deceased had not disclosed to him about deceased having murdered by the present accused persons.
Though he had tried to cover this aspect by making a statement voluntarily that he had not even asked them about the said fact. However, it was further admitted by him that even those witnesses, had also not disclosed to him voluntarily about the assailants of the deceased. It was also deposed by him that death summery of deceased was not available on judicial file. Other formal suggestions were denied by him as wrong and incorrect.
PW-23 is Inspector Sanjay Sinha No. D1/1040 Presently posted at PHQ, Delhi, IO of this case who had deposed that on 06.11.2017, he was posted as SHO at Jaitpur when DD entry 55A Ex. PW13/C regarding stabbing of a boy at House no. 354, JJ colony Part-III in Madanpur Khadar was received by SI Rajiv who had also visited the spot and got the case registered on 07.11.2017. Investigation of this case after its registration was conducted by this witness, who along with SI Rajiv, Ct. Purshotam, Ct. Mukhtiyar, Ct. Supreet and other police officials reached at the spot where he met Janbaz and Sibu . He inspected the spot and prepared the site plan at the instance of Janbaz which was already Ex. PW19/DA, bearing his signature at Point 'X'. Thereafter, he reached at the house of accused Sunny as well as Krishan Gopal @ Chhanga but both the accused persons were FIR No: 553/2017 Page 33 of 58 not found present at their houses. He had also deputed Inspector Anwar Khan to get the postmortem of deceased conducted from AIIMS and multiple teams were constituted for tracing out the accused persons and even secret informers were also activated.
On the next day morning i.e. 07.11.2017, he had received a secret information regarding the accused persons being present at New Delhi Railway Station. Thereafter, he along with secret informer and other police officials reached at New Delhi Railway Station and at the instance of the secret informer, both the accused persons were apprehended when they were standing towards gate no. 1, Paharganj side parking. They were arrested and their personal searches were conducted and disclosure statements were recorded, pointing out memos were prepared, two mobile phones were recovered from the possession of accused Krishan Gopal @ Changa and one broken piece of knife was recovered from right side pocket of pant from accused Sunny and some cash was also recovered from Krishan Gopal @ Changa who was also carrying two blankets. Accused persons were brought back to the Police Station where their blood stained clothes were also seized by him vide memos as already mentioned by other PWs, all bearing his signature at point X. Ct. Supreet was stated to have handed over 4 sealed pullandas after his return to PS which was seized by him vide memo Ex.PW19/A bearing his signature at point X. Medical examination of both the accused persons was also got conducted after which they were FIR No: 553/2017 Page 34 of 58 sent to the lock-up of PS Sarita Vihar. He had correctly identified the accused persons in the court.
On 08.11.2017, they were produced before the concerned court and two days PC remand of accused persons was obtained.
On 09.11.2017, accused persons were stated to have lead the police party to Pusta Road, in front of old Police Chowki, Jaitpur, towards Yamuna and one blood stained buttondar knife was got recovered at the instance of accused Sunny from the bushes at the above mentioned spot. He had prepared the sketch of that knife and seized the same vide seizure memo already Ex. PW1/C and Ex. PW1/D respectively. Thereafter both the accused persons were produced before the court and were sent to JC and case property was deposited in Malkhana.
On 11.11.2017, Ct. Supreet was stated to have handed over him one pullanda in a sealed condition containing cloth of deceased, which were taken into possession vide seizure memo Ex. PW19/B bearing his signature at Point 'X'. During investigation, the blood samples of the accused persons were obtained and seized vide memo Ex. PW20/B bearing his signature at Point 'X'. he had also prepared recovery memo of the knife and prepared the site plan of place of recovery Ex. PW1/E. During investigation, age verification of accused Sunny was also got conduced who was found to be a major. Exhibits were later FIR No: 553/2017 Page 35 of 58 on sent to FSL for their examination and after obtaining FSL result supplementary charge-sheet was also filed by him. He had identified the case property from Ex. P1 to P4.
During his cross examination conducted by Ld. Defence Counsel on 10.01.2023, he could not remember if he had recorded the statement of the person, who had informed the police at number 100. He had deposed further that though he might have tried to locate the caller but he could not remember the said fact exactly as on the date of his deposition. However, he had denied the suggestion that no investigation was conducted by him qua tracing out the caller. During investigation, he also came to know that a quarrel had taken place between deceased and accused persons on 05.11.2017 as well when a PCR call was also made and MLCs were also prepared in respect of the said incident which were also filed by him along with the present charge sheet. However, no complaint was received at PS qua said incident and hence, no FIR was registered. It was denied by him that no incident or quarrel had taken place on 05.11.2017 and that is why no investigation was conducted by him on that aspect. It was also denied by him that he was deliberately trying to connect the incident of 05.11.2017 with that of 06.11.2017. Though, it was admitted by him that site plan did not bear the signature of Jabaz, however, it was stated to have been prepared by him at his instance only. He could not admit or deny regarding lodging of his departure entry to the spot or not. Though he was stated to have tried to find out some public witnesses from the FIR No: 553/2017 Page 36 of 58 vicinity of the spot of occurrence but he could not succeed in his endeavors as it was night time and nobody was present. The FIR was stated to have been registered on the statement of Janbaz who had also disclosed to him, the names of accused persons and it was further denied by him that Janbaz had not given any statement disclosing the names of accused persons. It was though admitted by him that movements of every police officer were governed by rojnamcha but denied the suggestion that he had not conducted any investigation on 07.11.2017 and that is why his arrival entry was not available on record.
He could not tell if the parking of New Delhi Railway Station came under the jurisdiction of Railway Protection Force or not and further denied the suggestion that he was very much aware about the fact that the parking of New Delhi Railway Station came under the jurisdiction of Railway Protection Force and he was deliberately concealing the said fact. Further he had no knowledge, if the parking area adjacent to gate No. 1 of New Delhi Railway Station towards Paharganj was fully covered with CCTV cameras or not. Since no parking attendant or official from Railway Protection Force was present at the time of carrying out the arrest proceedings of accused persons, hence, no one could have been joined by him. He could not admit or deny if the parking was fully operational for 24 hours or not. However, it was denied by him that since arrest of accused persons was not caused from the Railway stations parking hence, FIR No: 553/2017 Page 37 of 58 no parking attendant or officials of RPF were joined by him during the said proceedings.
Accused Sunny was stated to have been arrested at 04:00 PM whereas accused Krishan Gopal was arrested at 04:10 PM and nothing was recovered during personal search of Sunny. It was further volunteered by him that piece of knife recovered from Sunny was separately seized by him vide seizure memo Ex. PW15/H and a suggestion put to him to the contrary was denied by him as incorrect. He could not remember if he had conducted any investigation from one Bizada Naga Mani R/o Vishakhapatnam, in whose name the CAF Form was issued pertaining to the number 9121429224, on the the basis of whose location, they were stated to have reached the New Delhi Railway Station. Further he could not verify the other numbers from whom the accused was talking from the said mobile number.
It was however denied by him that no mobile phone was recovered from accused Krishan Gopal or that he was not using the said number in the alleged mobile or that mobile was planted by him upon the said accused. He had not got any TIP of the clothes of accused persons by the eye witnesses namely Janbaz and Shibu to prove that accused were wearing the same clothes at the time of commission of offfence but denied the suggestion that the clothes were planted upon them by the police. However, It was again admitted by him that no signature of any FIR No: 553/2017 Page 38 of 58 pubic person were taken by him on the seizure memo of the clothes of the accused persons.
It was denied by him that he had not recorded any departure entry on 09.11.2017, when the alleged recovery of weapon of offence was made. It was though admitted by him that Pusta Road Jaitpur was a congested area on account of commutation of public persons and though he had requested 1 or 2 persons to join the investigation but they had refused. However, no written notice was served upon anyone by him to join the investigation nor any photography and vediography was got conducted by him while carrying out the recovery proceedings. It was also not mentioned on the sketch of the knife as to on which of its portion, the blood stains were found present or from which portion, it was found broken. It was denied by him that no knife was recovered at the instance of accused Sunny nor it was having any blood stains or it was broken or it was planted upon accused by him to somehow connect him with the present offence. No recovery could be effected on 08.11.2017 as the entire day was consumed in other formalities including medical examination of accused persons and due to darkness in foggy condition, accused could not be taken for recovery of weapon. He had not made any attempt to lift any chance prints from the knife after its recovery. Other formal suggestions were denied by him as wrong and incorrect including the suggestion of calling the accused persons from their respective houses and getting them implicated in the present case.
FIR No: 553/2017 Page 39 of 58PW-24 is Naval Kishor Joshi, SSO Chemistry, FSL, Rohini, Delhi, who had examined the exhibits of this case and had given his report Ex.PW24/A bearing his signature at point A. During his cross examination conducted by Ld. Defence Counsel, he had stated that the work sheets prepared by him during chemical examination conducted from 02.01.2018 till 26.02.2018 were not annexed along with his report as same was not required. It was admitted by him that chemical agents used by him for examination were not mentioned in his report. Formal suggestions were denied by him as wrong and incorrect.
PW-25 is Dr. Kaushal Kumar (retired) JSO, FSL Rohini, who had placed on record his detailed report as Ex. PW25/A (running into 3 pages) bearing his signature at Point 'A'.
During his cross examination conducted by Ld. Defence Counsel, he had deposed that while conducting DNA profiling, first of all DNA was required to be extracted from the sample and thereafter profiling of the same had to be conducted which was also known as real time PCR. It was also admitted by him that reagent was used by him to extract DNA quantity from the sample however, name of reagent was not mentioned in his report. It was also admitted by him that different reagents were being used to extract DNA samples from different sources and while extracting DNA quantity from the sources by using reagent, many times inhibitors also appeared which obstructed the procedure of obtaining DNA quantity from the said sample. It FIR No: 553/2017 Page 40 of 58 was though admitted by him that no inhibitors were found present while taking out the DNA quantity from the samples and same was also not mentioned in his report as if inhibitors could have come into play, then the required DNA quantity could not have been extracted from the sample. It was further admitted by him that concentration of the DNA quantity which was picked by him from the sample was also not mentioned in his report but again admitted that had the concentration of DNA quantity being more than 15ng/ul or lesser than .5ng/ul, then the ideal RTPCR could not have been done. The other formal suggestions were denied by him as wrong and incorrect except admitting the portions of his report which were put to him during his cross examination.
PW-26 is Dr. Monika Saihi, Sr. Scientific Officer, Physics, FSL Rohini, who had placed on record her report Ex. PW26/A, bearing her signatures at point A & B. During her cross examination conducted by Ld. Defence counsel, she could not tell if knife was having any blood stains on it or not as it was not within her domain. She could not remember exactly if any specification was available on the knife or not. Similarly, she could not tell if the metallic piece was part of some other knife which also fitted on one side of the handle of knife exactly when she had compared the same, nor she had mentioned the the size of the handle and knife in her work sheet FIR No: 553/2017 Page 41 of 58 which was also not annexed along with her report. Formal suggestions were denied by her as wrong and incorrect.
(B) Now, I would like to discuss the testimonies of the material witnesses:
PW -1 is Sh. Jallaluddin, S/o Sh. Munshi Khan, R/o House No. 354, Phase-III, Madanpur Khadar, who is none other than the father of deceased and he had deposed that he was a driver by profession and his family comprised of three daughters and two sons. Deceased was his younger son who was a Salesman. On 05.11.2017, marriage of the son of his maternal uncle was to be solemnized when his son returned back to home at around 08:00 PM after which witness had told him to change his clothes for going to marriage. His son came out in the street after changing the clothes while he alongwith other family members were busy in changing their clothes, then someone came to his house and told him that one boy named Sunny was beating his son then he immediately rushed out of his house and reached the spot and saw Sunny giving beatings to his son Asif Khan. He tried to pacify both of them when Sunny had picked up one stone and had hit the same on the head of his son. After which he had also called at 100 number and taken his son to AIIMS Hospital in a TSR where eight stitches were administered on the head of his deceased son by the doctor who was later on discharged. After which they came back to their house. After 10 minutes of his arrival at his house, Sunny was stated to have FIR No: 553/2017 Page 42 of 58 came again in the corner of the street and shouted loudly that his son would not be able to see the sun of the following morning (Asif tu kal ka sooraj nahi dekhega ) and left the spot.
On 06.11.2017, his son had gone to his workplace and came back in the evening and told that he would be back within two minutes. After which he went towards eastern side of the street when Shibbu and Janbaj came towards his house with his son on their shoulders and told him that Sunny and Chhanga @ Gopal had stabbed him. He had again taken his son to AIIMS Trauma Centre where he was declared dead by the doctor. Even his son had told him at the time when he was brought by Shibbu and Janbaj that he was stabbed by Sunny and Chhanga @ Gopal.
On the next day of incident, he had gone to the mortuary of the hospital and had identified the dead body of his son vide identification memo Ex. PW-1/A bearing his signature at point A and had also received dead body after postmortem vide identification memo Ex. PW-1/B bearing his signatures at point A. Since the witness had not fully supported the case of prosecution, hence he was cross examined by Ld. Addl. PP for the State after declaring him hostile and during his cross examination it was admitted by him that police had recorded his statement and he along with his son had also shown the place of occurrence to the police on 07.11.2017 as well as the house of accused persons. However, he could not remember, if police FIR No: 553/2017 Page 43 of 58 officials had also visited his house with accused persons in their custody on 09.11.2017 or not. It was also admitted by him that accused persons had got recovered a buttondar knife from the bushes at Khaddar Colony 100 meters ahead from police chowki and the said knife was having blood stains which was also measured by the police officials and was later on sealed after preparing he sketch. IO was also stated to have prepared the site plan of the recovery of the spot Ex. PW-1/E bearing his signatures at point A and lastly he had admitted that due to lapse of time, he could not recollect all those facts and could have also identified the knife, if shown to him.
In his further examination-in-chief recorded on 11.12.2018, he had identified the knife as Ex.P1.
During his cross examination conducted by Ld. Defence Counsel, he was stated to be waiting for his son on 05.11.2017 for taking him to marriage of the son of his maternal uncle. Accused Sunny was stated to be standing at the corner of the gali who had dragged his son Asif in the street and had given him beatings. After receiving the information about accused Sunny giving beatings to his son, he had immediately came out but by that time Sunny had already taken his son near temple along with two other boys and was giving beatings to his son Asif. This witness had also tried to make them understand but during the scuffle clothes of his son got torn. Accused Sunny had also picked up one stone and hit his son Asif on his head due to FIR No: 553/2017 Page 44 of 58 which blood oozed out and his son was removed to a private hospital in a TSR where 8 stitches were administered to him. It was denied by him that Sunny had never hit his son with stone on his head nor any stitches were administered to him and he was deposing falsely to this effect.
He had not told the name of other persons who were present with accused Sunny and had given beatings to his son to the police and a suggestion put to him to the contrary was denied by him as wrong and incorrect. It was admitted by him that on 06.11.2017, Janbaj and Shibu had come to his house alongwith his injured son and had told him about how his son had sustained injuries. Thereafter, he had informed the police and disclosed the names of accused persons to them. It was also admitted by him that Doctors had declared his son brought dead. Even Janbaj and Shibu as well as public persons were also stated to be present when his deceased son had disclosed him about the names of his assailants being the present accused persons. However, he had not disclosed the names of other public persons to the police during recording of his statement U/s 161 Cr.PC. Though it was stated by him that he had told the police that his son had also disclosed the names of his assailants but this fact was not found mentioned in his statement recorded U/s 161 Cr.P.C.
It was denied by him that he was deposing falsely being a tutored witness having deposed at the instance of his counsel that his son had told him about accused Sunny and FIR No: 553/2017 Page 45 of 58 Changa having given beatings to him. He had not informed the doctor at the time of medical examination about the accused persons having given beatings to his son nor he had lodged any FIR against them. It was also denied by him that he had not disclosed the names of accused persons at the time of making call at 100 number. The police had not traced any rehdi who used to sell eggs in the area in the presence of this witness and he could not also recollect, if police had carried out any proceedings in his presence on 07.11.2017 or not.
It was however denied by him that he was deliberately concealing the true facts. Though he had identified the dead body of his son on 07.11.2017 before his postmortem but he could not recollect if his statement regarding said identification was recorded by the police or not.
Police officials though had met him on 07.11.2017 but again he could not recollect, if any queries were made by them from him in the hospital or not. He had not told the police on 07.11.2017 about his deceased son having disclosed to him, the names of accused persons as his assailants or that Jabaz and Shibu had brought his son to his house in an injured condition and had informed him about his being given beatings at the rehdi of eggs seller followed by stabbing in the lane by the accused persons. It was though again denied by him that Janbaj and Shibu had not disclosed him anything about his deceased son having sustained injuries due to beatings given to him by the accused FIR No: 553/2017 Page 46 of 58 and thereafter stabbing him or that they had only told him that his son was lying in the street in an injured condition and they had simply brought him to his house.
He was stated to have not met police in connection with this case after 07.11.2017, however, denied the suggestion that police had manipulated his statement on the point of recovery of knife at the instance of accused and police had not taken any finger prints from the knife in his presence. Though it was further denied by him that knife was planted upon the accused persons by the police officials.
PW-2 is one of the alleged eye witnesses namely Sh. Shibbu @ Imtiyaz Khan, S/o Sh. Mohd. Ishtiak Khan, aged about 20 years, R/o House No. 600, Madanpur Khadar Extension, Phase-III, New Delhi, who was stated to be working as a party decorator. He could not remember the exact date, month and year but it was in the year 2017, when he had returned at his home at around 07:00-08:00 PM and after putting his bag inside his house, came out and saw one boy Asif lying on the road in an injured condition. Thereafter, he had taken him to his house and came back to his own house and knew nothing about this case.
Since this witness had not supported the case of prosecution hence, he was cross examined by Ld. Addl. PP for the State after declaring him hostile.
FIR No: 553/2017 Page 47 of 58During his cross examination, he had stated that he didn't know if the incident had taken place on 06.11.2017 or not. However, it was admitted by him that police had recorded his statement. He had denied the suggestion that when on 06.11.2017, at about 08:30 PM, he was present at the corner of the street of Sai Mandir then deceased had come there and started talking to him and in the meantime, accused persons also came at the spot and stabbed Asif on his head. It was further denied by him that after getting injury, deceased had tried to run towards the street and was also followed by the accused persons or that he along with Janbaz had also run behind deceased to save him but they had seen accused Chhanga had caught hold of deceased and accused Sunny had stabbed in is stomach by the knife or that accused had thereafter waived the knife in the air and threatened to kill anyone who would intervene in the matter and ran away from the spot. Other formals suggestions were also denied by him as wrong and incorrect and he had no knowledge as to how deceased had sustained injuries.
During his cross examination conducted by ld. Defence Counsel, he had stated that he was neither threatened nor offered any money by the accused or his family members.
PW- 12 is another star witness of the prosecution namely Zabez S/o Yusuf Khan, aged about 21 years, R/o House No. 101 JJ, Part-III, Colony, Delhi, at whose instance the present case was registered. He was also stated to doing the work of FIR No: 553/2017 Page 48 of 58 decoration in parties and could not remember the exact date, month and year of the incident. However, about two years prior to the date of his deposition at about 09:00 PM, when he was returning from his work and reached near Grocery Shop, Phase- III, he had seen one boy lying down in the street in an injured condition. The said boy was known to him as Asif and he had taken him to his house and thereafter went to his own house and did not know anything else about this case.
This witness was also cross examined by Ld. Addl. PP for State after declaring him hostile, during which he had admitted that deceased was his school friend and accused persons were also known to him. However, he was no more in contact with the accused persons. He had no knowledge, if Sai Mandir was also situated at the spot and had denied the suggestion that Police Officials had recorded his statement. However, it was admitted by him that his signatures were obtained by police on some papers. He had identified his signatures on Ex. PW12/A at Point A but denied the suggestion that he had made the aforesaid statement to the police. He could not identify the clothes of accused as it was dark and had no knowledge about the place of the residences of the accused persons. Last time, he had met accused persons about 2 years back as they used to visit the park in his locality. He had no knowledge if deceased and Sunny were also school friends or that accused persons had also studied in the same school in which deceased had studied. Similarly, he had no knowledge about any quarrel having taken place between FIR No: 553/2017 Page 49 of 58 accused Sunny and deceased prior to the date of incident. Formal suggestions were denied by him as wrong and incorrect.
During his cross examination conducted by Ld. Defence Counsel, he had admitted that he along with Shibu had brought the deceased to his house when he was found in an injured condition in the street. However, he could not tell whether deceased was able to speak or not or as to whether he was already dead at that time. It was admitted by him that father of deceased was present when he was called by the police and his signatures were obtained on several papers. However, those papers were stated to be blank and police had obtained his signatures on those papers on the pretext that since he had brought the injured from street to his house hence, was required to sign those papers. It was also admitted by him that it was for the first time in the court that he came to know that papers bearing his signatures were wrongfully utilized by the police. It was also admitted by him that on the date of his deposition before the court, he was told that the papers containing his signatures mentioned that a quarrel had taken place at a rehdy and the deceased was assaulted by the accused persons who had thereafter, ran away after stabbing him. He was stated to have never witnessed any incident as mentioned in those papers which were stated to have been prepared by the police in connivance with the father of deceased and he along with Shibu was involved only in taking the deceased to his home and he had no knowledge FIR No: 553/2017 Page 50 of 58 as to how deceased had sustained injuries and by whom those were caused.
After closure of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., wherein, entire incriminating circumstances and evidence as appearing against them on record were put to them and except the facts which were either specifically admitted to be correct by them or were purely and essentially a matter of record, the accused had expressed their lack of awareness about some facts and denied the rest as wrong and incorrect.
Accused persons pleaded their innocence and false implication in this case. However, they had preferred not to lead any evidence in defence.
4. I have heard Dr. Prayag Dutt Pandey, ld. Addl. PP representing the State as well as Sh. Momin Faizal, Ld. Counsel appearing for accused persons.
It has also been pointed out by Ld. Addl. PP for State that it is the quality and not the quantity of evidence which has to be weighed and considered by the court.
In this regard, ld. Addl. PP for State has placed reliance on the following citations :-
FIR No: 553/2017 Page 51 of 58(i) Vinod Kumar v/s State of Punjab, Crl. Appeal No. 554 of 2012, Hon'ble Supreme Court of India, decided on 21.01.2015, wherein, in para no. 29, the Hon'ble Apex Court had held as under :
"29. ......
In Bhagwan Singh V. State of Haryana[24], it has been laid down that even if a witness is characterised has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. ......
the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof."
(ii) Ravasaheb @ Ravasaheb Gouda etc v/s State of Karnataka, Hon'ble Supreme Court, Crl. Appeal No. 1109-1110 of 2010, decided on 16.03.2023, wherein, Hon'ble Apex Court had held in para no. 17.1 as under :
"17.1 Evidence of hostile witness:
a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness's statements cannot be termed totally unreliable;
b) The evidence of a hostile witness can form the basis of conviction.
c) The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses.FIR No: 553/2017 Page 52 of 58
[Mrinal Das Vs. State of Tripura (2011) 9 SCC 479]"
In the light of aforesaid law as laid down by Hon'ble Apex Court, it has been argued and submitted by ld. Addl. PP for State, that merely because the witness has not supported the case of prosecution during his cross examination, his testimony cannot be discarded or thrown away in the dustbin at the threshold and that portion which supports the prosecution story can very well be taken into account and conviction can be based up on the same.
Per contra, it has been argued by Ld. Defence Counsel that accused persons were falsely implicated in this case to solve a blind murder case at any cost whatsoever and this fact further gets fortified due to non joinder of any independent public witnesses at any stage of investigation and proceedings by the police and even the so called public witnesses had also turned hostile and had not supported the case of prosecution. It has also been stated and argued by Ld. Defence Counsel that recovery of weapon per se is suspicious as it was alleged to have made from a place which was accessible to the public and despite the same, no independent public person was joined nor any videography and photography of the spot of recovery was done and hence, it could not be stated that the said place was within the exclusive knowledge of accused persons and even their arrest was also suspicious because prosecution despite having claimed to have arrested them from the Paharganj side parking of New Delhi FIR No: 553/2017 Page 53 of 58 Railway Station, neither any parking attendant nor any official from Railway Protection Force was joined as a witness in this case.
In support of his arguments and contentions Ld. Defence counsel had also relied upon the following citations:-
Kamal Kishore & Anr. Vs. State of Delhi, Hon'ble High Court of Delhi, CRL.A. 77/2000, decided on 18.07.2014, wherein the Hon'ble High Court, while acquitting the appellants, was pleased to hold that it was highly improbable that accused persons would have continued to wear blood stained clothes since the time of commission of alleged offence till the time of their arrest.
Similarly reliance has been placed on Mani Vs. State of Tamil Nadu, Hon'ble Supreme Court, Appeal (Crl.) 443/2006, decided on 08.01.2008, wherein it was held that the prosecution had never made any attempt to prove that the clothes allegedly seized from the accused persons had actually belonged to them and in the light of the aforesaid citation, it has also been submitted by Ld. Defence Counsel that accused persons had denied the belongingness of the clothes which were planted upon them in the present case as well.
Similarly, reliance has been placed on Mustkeem @ Sirajudeen Vs. State of Rajasthan, Hon'ble Supreme Court, Crl. A. No. 1327/2008, decided on 13.07.2011, wherein, it was FIR No: 553/2017 Page 54 of 58 held that merely because the blood of a particular group was found on the clothes of deceased, this fact alone would not ifso facto establish the guilt of accused unless same was connected with the murder of deceased by the accused. It was also held further that if the recovery memos were prepared at the police station itself, then the same would lose its sanctity.
And in the case tilted as Khalil Khan Vs. State of Madhya Pradesh, Hon'ble Supreme Court, Appeal (Crl.) 693/2003, decided on 08.10.2003, it was held by Hon'ble Supreme Court that in order to accept a statement of deceased as dying declaration, it is necessary for the prosecution to have proved that he was in a fit state of mind to have made any such statement.
After hearing both the parties, I find some force in the contentions of the Ld. Defence Counsel as the alleged eye witnesses had completely turned hostile and had not supported the case of prosecution at all. Furthermore, even from the FSL result Ex.PW21/A, it is reflected that deceased was under the influence of alcohol which was found present to the extent of 101.3mg/100ml in his blood. Though, the DNA profiling as reflected from FSL report Ex.PW25/A reflected the presence of blood on the clothes of accused persons of the group which belong to the deceased. However, since prosecution had failed to establish that those clothes actually belonged to the accused persons and were not planted upon them, also creates a suspicion FIR No: 553/2017 Page 55 of 58 in the prudent mind and it is highly improbable that accused persons would have continued to wear the same clothes even after committing the offence carrying blood on their clothes and were roaming freely in the city like Delhi.
Even the MLC or the postmortem report of deceased didn't mention about any stitches on his head, which falsified the story of PW-1 regarding the incident of 05.11.2017.
So far as the alleged recovery of knife is concerned, it is reflected from the FSL report Ex.PW26/A that no blood was detected on the said knife nor any finger prints were found present on the same. Hence, it could not be connected with the commission of offence in the present case and it was only opined in the said report that handle part of the Ex.P-8 (metallic piece) could have been a part of Ex.P-7(knife), meaning thereby that no conclusive opinion about the alleged recovered metalic piece and its link with the alleged weapon of offence had been given by the FSL expert as well.
Further when PW-1 had not joined investigation after 07.11.2017, then how his signature had appeared on recovery memo dated 09.11.2017 also remained an unsolved mystery.
Furthermore, it is interesting to note that though accused persons were stated to have been arrested from the FIR No: 553/2017 Page 56 of 58 parking of New Delhi Railway Station itself, when they were roaming there alone. However, it is surprising to see as to how the thumb impression of mother of accused Sunny (RTI) namely Kalawati had appeared on his arrest memo when she was not even present there. This further goes to show that accused were not arrested from the place as mentioned by PWs rather their arrest etc. were caused at the police station itself after calling them there.
Had it been a scene of their arrest at a place as deposed by PWs, than nothing could have prevented the IO to have collected the CCTV footage of the New Delhi Railway Station's Parking to show and confirm their presence at the given point of time. Furthermore, no investigation qua phone number allegedly provided to police by the secret informer which admittedly did not belong to either of the accused persons was conducted to link the accused persons with the use of said mobile phone nor its actual owner was ever interrogated to ascertain as to how the number belonging to a person in Vishakhapatanam had fallen in the hands of the accused persons.
5. All these loopholes and lacunaes appearing in the prosecution story causes a serious dent of suspicion regarding its authenticity, genuineness and truthfulness and hence, I am of the considered opinion that accused persons are entitled to avail all the benefits of such doubts arising in the prosecution case.
FIR No: 553/2017 Page 57 of 586. As a result of my aforesaid discussion, both accused persons are acquitted after conferring benefit of doubt upon them. The bail bonds furnished by accused are cancelled and their sureties are discharged. The bonds furnished by them under Section 437A Cr.P.C. shall remain in force for a period of six months from the date of their acquittal.
7. Case file be consigned to record room, after completion of other necessary legal formalities in this regard.
Digitally
ANNOUNCED IN THE OPEN COURT signed by
DATED: 27.10.2023 LOKESH
LOKESH KUMAR
KUMAR SHARMA
SHARMA Date:
2023.10.27
15:32:09
+0530
(LOKESH KUMAR SHARMA)
ADDL. SESSIONS JUDGE (FTC - 02)
SOUTH EAST DISTRICT
SAKET COURTS : NEW DELHI
FIR No: 553/2017 Page 58 of 58