Delhi District Court
State vs . Sher Singh Etc. Sc No. 16/14 Page 1 Of 43 ... on 15 May, 2014
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IN THE COURT OF SH. GIRISH KATHPALIA, ASJ05,
SOUTH EAST DISTRICT, SAKET, NEW DELHI
SC NO. 16/14
STATE
vs
1. Sher Singh @ Poly @ Vicky
S/o Sh. Pooran
R/o B129, Sanjay Camp,
Dakshinpuri, New Delhi
2. Kuldeep @ Kale,
S/o Sompal,
R/o J236, Dakshinpuri,
New Delhi
3. Nikhil @ Minti,
S/o Kanwar Pal,
R/o A418, Sanjay Camp,
Dakshinpuri, New Delhi &
4. Amit
S/o Sohanpal,
R/o F404, Dakshinpuri,
Sanjay Camp, New Delhi
FIR No. 35/12
PS Ambedkar Nagar
Offence under Section 307/34 IPC
Unique ID No. : 02406R0122732012
Date of Committal : 10.07.2012
First Date in this Court : 18.01.2014
Date of conclusion of arguments : 12.05.2014
Date of decision : 15.05.2014
State vs. Sher Singh etc. SC No. 16/14 Page 1 of 43 Pages
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JUDGMENT
1. As per prosecution case, on 13.02.2012 DD No. 34A was recorded at PS Ambedkar Nagar regarding a quarrel and the same was assigned to SI Ishwar Singh, the investigating officer (IO), who reached AIIMS Trauma Center with Ct. Nahar Singh and found the injured Naresh present in the hospital under treatment and fit for statement. The IO recorded statement of the injured Naresh, who stated that being a TB patient, he stays at home; that on 13.02.12 at about 05:0005:30pm when he went to fetch milk from mother dairy in front of HBlock, accused Poly who was residing in front of his house in Sanjay Camp accompanied with his friend Kale and others came abusing him and alleging that he had forcibly got vacated jhuggi of Poly, so they would not spare him and thereafter, Poly exhorted his companions to catch hold of him; that after companions of Poly caught hold of him, while Poly and Kale with intention to kill him assaulted him with knife blows on his thighs and above his ear; that when he shouted for help, the assailants fled the spot leaving him bleeding and injured; that in the injured condition he reached State vs. Sher Singh etc. SC No. 16/14 Page 2 of 43 Pages (3) back home where his brother Hemraj called telephone number 100 and PCR came and took him to hospital; that Poly and Kale with the assistance of their companions had injured him and he could identify them.
2. On the above said statement of the injured, the IO prepared a rukka and got the FIR registered through Ct. Nahar Singh and carried out further investigation. In the course of investigation, the IO seized two sealed parcels from the doctor alongwith sample seal and recorded statements of the witnesses. On 14.02.2012, on the basis of secret information, with the help of his staff, the IO apprehended two persons from the park near the bus stand of route no. 521, who disclosed their names as Sher Singh @ Vicky @ Poly and Kuldeep @ Kale. The IO arrested both the said persons and carried out their personal search in which from pant pocket of each of the accused persons, one blood stained knife was recovered. The IO prepared sketches of both the knives and thereafter, converted the same into separate cloth pulandas sealed with the seal of IS and seized the same. Thereafter, on the basis of disclosure State vs. Sher Singh etc. SC No. 16/14 Page 3 of 43 Pages (4) statements of accused Sher Singh @ Poly and Kuldeep @ Kale, from Virat Ground, Dakshinpuri, the IO arrested accused Nikhil @ Minti and Amit @ Sohan and recorded their disclosure statements. All the four accused persons were taken to the spot of occurrence and pointing out memo was prepared at their instance. Accused Nikhil got recovered from underneath bed in his house one blood stained shirt, which was seized by the IO. On 29.03.2012, the IO carried out TIP proceedings of the accused persons in which they refused to join, though the complainant Naresh identified Nikhil and Amit. On 12.04.2012, the IO sent the seized articles to FSL Rohini and awaiting the forensic result, filed the charge sheet against the accused persons for offence under Section 307/34 IPC and against accused Sher Singh @ Poly also for offence under Section 25 Arms Act. The learned magistrate, after completing the proceedings under Section 207 Cr.P.C. committed the case to the Court of Sessions on 10.07.2012, whereafter on 31.10.2012 FSL report was filed before my learned predecessor.
3. My learned predecessor after hearing both the sides framed State vs. Sher Singh etc. SC No. 16/14 Page 4 of 43 Pages (5) charge against all the accused persons for offence under Section 307/34 IPC to which all the accused pleaded not guilty and claimed trial. In support of its case prosecution examined 9 witnesses, whereafter the entire prosecution evidence was put to the accused persons in their statements under Section 313 Cr.P.C. The accused persons denied the correctness and truthfulness of the prosecution evidence but opted not to lead any evidence in their defence.
4. I have heard Sh. R.K. Gurjar, Additional Public Prosecutor for the State and Sh. R.K. Sheoran counsel and Shri P.K. Mittal, DLSA counsel for all the accused.
5. A brief conspectus of the evidence brought on record is as follows.
6.1 The injured Naresh appeared in the box as PW1 and deposed that he did not remember the date of the incident which happened about 8 months back (testimony recorded on 20.09.2012) at about 04:30 pm when he was going to fetch milk from mother dairy at Tigri road, HBlock; that when he reached the dairy, all the four accused State vs. Sher Singh etc. SC No. 16/14 Page 5 of 43 Pages (6) persons caught hold of him and accused Poly and Minti @ Nikhil stabbed him with knives which were in their possession, in order to snatch his purse; that accused Poly and Minti @ Nikhil were known to him even prior to the incident as they resided in the same jhuggi at Sanjay Camp where he was residing, while the other two accused were not known to him; that first of all, the accused persons approached him when he was standing at the dairy and started snatching his purse; that after stabbing him the accused persons snatched away his purse containing Rs.2000/ to Rs. 2,500/ and papers pertaining to his duties at BRT corridor and LIC papers; that during the incident he sustained two stab wounds on his head and on both his legs and the accused persons stabbed him several times on his legs below his waist; that he raised alarm but nobody came to save him; that in profusely bleeding condition he somehow managed to escape and ran away straight to his house from where he called at no. 100 and police came after about half an hour upon 45 calls and took him to trauma center, AIIMS where he remained admitted for two days; that he was interrogated by the police at trauma center as well as at his house State vs. Sher Singh etc. SC No. 16/14 Page 6 of 43 Pages (7) and his statement Ex. PW1/A was recorded; that he could only sign with great difficulty but his statement was not read over to him by the police; that his brother Hem Raj also has called PCR; that his treatment continued for about four months; that he was never taken to the spot by the police and his snatched purse also was not recovered by the police. After recording of the above statement, my learned predecessor deferred the further examination of PW1 for want of case property. On the next date, PW1 was shown knives Ex. P1 and Ex. P2 but he submitted that he could not identify the same; however, PW1 identified as Ex.P3, the pant which he was wearing at the time of the incident and which had been seized by the IO from the doctor.
6.2 In his cross examination, PW1 Naresh stated that he had not given any statement to the police and police took his signatures on blank papers; that at the time of the incident he was intoxicated under the influence of liquor; that there were number of public persons and he could not identify as to whether he was injured by the accused persons or someone else. PW1 voluntarily stated in the cross examination that he State vs. Sher Singh etc. SC No. 16/14 Page 7 of 43 Pages (8) was neither stabbed by the accused persons nor looted by them and rather the accused person had saved him. PW1 also stated in cross examination that he was making that statement without any pressure. 6.3 In view of the above situation, learned Additional Public Prosecutor sought to reexamine the witness, which was allowed by my learned predecessor. In reexamination, PW1 stated that his examination of chief was deposed by him under the influence of police. At that stage, learned Additional Public Prosecutor sought and was allowed to cross examine PW1. In his cross examination by learned Additional Public Prosecutor, PW1 admitted having made no complaint to any senior police officer or to the court that he had been pressured by the police to give false statement. Rest of the entire cross examination of PW1 by learned Additional Public Prosecutor was only to the extent of suggestions that he had been won over by the accused and concocted a false story of being intoxicated in order to save the accused persons and that his statement Ex. PW1/A had been read over to him before he signed the same; those suggestions were denied by PW1.
State vs. Sher Singh etc. SC No. 16/14 Page 8 of 43 Pages (9)
7. PW2 Sh. Hemraj, brother of Naresh deposed that on 13.02.2012 at about 05:30 pm when he was at home and his brother Naresh had gone to fetch milk, within a few minutes Naresh returned home bleeding profusely and told about having been stabbed by some boys, whereafter Naresh became unconscious after taking water; that he called telephone no. 100, whereafter police came and took Naresh to the trauma center. PW2 was declared hostile to prosecution and was cross examined before my learned predecessor by the learned Additional Public Prosecutor. In his cross examination, PW2 denied the suggestion that Naresh had told him names of the assailants as Poly, Kale and two more persons. PW2 also denied the suggestion that he had gone to the house of Poly and Kale with SI Ishwar Singh but they were not found at their home.
8. PW3 SI Liyaqat Ali proved a copy of FIR as Ex.PW3/A, his endorsement on the rukka as Ex.PW3/B and daily diary entries number 31A and 34A respectively as Ex.PW3/C and Ex.PW3/D.
9. PW4 Dr. Suman Karmakar, a senior resident of the trauma State vs. Sher Singh etc. SC No. 16/14 Page 9 of 43 Pages (10) center, AIIMS proved the MLC of injured Naresh as Ex.PW4/A which had been prepared by Dr. Mukesh Pathekar. In his cross examination, PW4 disclosed the personal address of Dr. Mukesh from hospital records and stated that the injured was not examined in his presence and even Dr. Mukesh was not shown the weapon of offence.
10.1 PW5 SI Sandeep Verma deposed that on 14.02.2012 he alongwith HC Inderjeet, Ct. Nahar Singh, Ct. Surender and IO reached J Block, Dakshinpuri in search of the accused persons; that at Dakshinpuri, they received secret information regarding presence of the accused persons at the bus stop of route no. 521, so they immediately reached there and apprehended two persons who revealed their names as Kuldeep @ Kale and Sher Singh @ Poly; that after interrogating those two persons, the IO arrested them vide arrest memos Ex. PW5/A and Ex. PW5/B and carried out their personal search vide memos Ex. PW5/C and Ex. PW5/D; that during personal search of each of the accused persons, one knife was recovered from their dhub (fold of the lower garment, which generally referred to the fold of dhoti) and IO prepared sketches Ex. PX State vs. Sher Singh etc. SC No. 16/14 Page 10 of 43 Pages (11) and Ex. PY of the same and seized the same vide memos Ex. PW5/E and Ex. PW5/F; that he did not remember if any stains were found on the said knives; that the IO also recorded disclosure statements Ex. PW5/G and Ex. PW5/H of the accused persons, whereafter they led the police party to Virat ground and got arrested accused Nikhil and Amit, who were arrested vide memos Ex.PW5/J and Ex.PW5/K and their personal search was carried out vide memos Ex.PW5/L and Ex.PW5/M and their disclosure statements Ex.PW5/N and Ex.PW5/O were recorded; that in pursuance to his disclosure statement, accused Nikhil led the police party to his jhuggi and got recovered one blood stained shirt from under a bed kept on the ground floor, which shirt was converted into a pulanda sealed with the seal of IS and seized vide memo Ex. PW5/P; that thereafter, all the four accused persons led the police party to the place of occurrence where pointing out memo Ex. PW5/Q was prepared. PW5 identified the knives allegedly recovered from accused Sher Singh and Kale as Ex. P1 and Ex.P2 respectively and also identified the shirt allegedly recovered at the instance of accused Nikhil as Ex. P4.
State vs. Sher Singh etc. SC No. 16/14 Page 11 of 43 Pages (12) 10.2 In his cross examination, PW5 stated that no finger prints were lifted from the knives in his presence; that the police party reached the house of accused Nikhil at 11:15 pm and IO requested some public persons to join but none of them agreed; that at the time of the alleged recovery of the shirt, none of the family members of accused Nikhil was present and at that time his jhuggi was not even locked; that the area of Dakshinpuri is spread over about 34 km and he did not know as to how many bus stands are there in Dakshinpuri where the bus route no. 521 stops; that when they reached the bus stand, 34 public persons also were present there and it was a running traffic; that when they reached the alleged spot of arrest, the police party was in uniform; that the secret informer had met them at Tpoint of JBlock from where they took about 1520 minutes to reach the alleged spot of arrest; that no site plan of the place of arrest was prepared; that the Virat ground is at a distance of about 510 minutes walk from the bus stand where two of the accused persons were arrested; that at Virat ground, the IO did not request any public person from the nearby dhaba to join the proceedings. State vs. Sher Singh etc. SC No. 16/14 Page 12 of 43 Pages (13)
11. PW6 Ct. Jagbir Singh deposed that on 13.02.2012 when he was posted at AIIMS trauma center, the doctor handed over to him two pulandas sealed with the seal of the hospital and a sample seal which he handed over to the IO and the IO seized the same vide seizure memo Ex. PW6/A. In his cross examination, PW6 stated that he did not give any acknowledgment of receipt of the pulandas to the doctor nor took any receipt from the IO, nor even made any entry in his register as regards the transmission of the said pulandas and that he did not even sign the seizure memo Ex.PW6/A.
12. PW7 Ct. Surender Singh narrated the circumstances of arrest of the accused persons and the alleged recoveries as described above and exhibited afresh the sketches of knives recovered from Sher Singh and Kuldeep as Ex.PW7/A and Ex.PW7/B before my learned predecessor. In his cross examination, PW7 stated that no neighbour woke up to join the recovery of blood stained shirt from the jhuggi of accused Nikhil; that some of the members of the police team were in uniform while some were in civil dress; that Dakshinpuri is spread across State vs. Sher Singh etc. SC No. 16/14 Page 13 of 43 Pages (14) an area of about 1.52 km in which there is only one stop of route no. 521 from where 1 or 2 more buses ply but he did not remember the route numbers.
13. PW8 SI Ishwar Singh, IO of the case proved his rukka as Ex. PW8/A and site plan as Ex. PW8/B and narrated the above described steps of investigation and arrest of the accused persons. In his cross examination, PW8 stated that he recorded the statement of the injured in the hospital at about 08:00 pm, recorded rukka at 09:00 pm and reached the spot at about 10:00 pm and sent the rukka for registration of FIR; that no public persons were present when the accused persons were arrested and disclosure statements of all the accused persons were recorded at Virat ground Dakshinpuri, where also no public person was present; that parents of accused Nikhil were present in the house at the time of the recovery of shirt at the instance of Nikhil; that no blood stains were found at the spot of occurrence; that for the first time, the information regarding the incident was received by him at about 05:30 pm in the police station, whereafter he went first to the spot of occurrence where he received State vs. Sher Singh etc. SC No. 16/14 Page 14 of 43 Pages (15) another DD entry that the injured had been shifted to hospital, so he went to the hospital; that during investigation, he did not try to trace out the subscriber of phone number 8527350846, from where the first information as regards the incident was received as per DD No. 31A Ex. PW3/C and in that regard he also did not collect any PCR record; that he did not even remember that vide DD No. 31A he had received information as regards some quarrel taking place in the house no. D443, Sanjay Camp, New Delhi, which place is at a distance of about 500 meters from the alleged spot of occurrence; that the first bus stop of route no. 521 is a running area with lot of public persons and despite his request none of the passersby agreed to join the proceedings but he did not issue any notice to them nor recorded their names and addresses; that he had informed the relatives of the accused persons immediately after the arrest over telephone but he did not remember their phone numbers, which had been recorded by him on rough papers and he did not remember if he mentioned those phone numbers on the arrest memos or not.
14. PW9 Dr. Dhruv Sharma from Biology Department of FSL State vs. Sher Singh etc. SC No. 16/14 Page 15 of 43 Pages (16) Rohini proved his reports as Ex. PW9/A and Ex. PW9/B and admitted in his cross examination that two persons can have same blood group and he did not check the Rh factor.
15. No other evidence was adduced. In their statements and supplementary statements under Section 313 Cr.P.C. all the accused persons denied the truthfulness of the prosecution evidence and stated that they had been illegally picked up and implicated in this false case; accused Nikhil specifically denied that the shirt Ex. P4 was recovered at his instance and pleaded that the same is not his shirt and accused Sher Singh and Kuldeep specifically denied that the knives were recovered from them; all the accused persons admitted having refused to join TIP proceedings but also specifically explained that they so refused because they had been shown to the witnesses prior to the date of the TIP.
16. During final arguments, learned Additional Public Prosecutor took me through the entire evidence on record and contended that as per settled legal position, the turning hostile of injured PW1 in cross examination cannot be read against prosecution. Learned State vs. Sher Singh etc. SC No. 16/14 Page 16 of 43 Pages (17) Additional Public Prosecutor argued that merely because in cross examination, which was carried out after a break, PW1 deposed hostile to the prosecution it does not mean that rest of the evidence adduced on behalf of prosecution be ignored. It was argued that during the intervening period between chief examination and cross examination, PW1 Naresh was won over by the accused persons, so he turned hostile. It was further argued that there is a scientific evidence to prove prosecution case, which is in the form of report of the forensic expert concluding presence of blood on the knives and blood stained shirt, recovered at the instance of the accused persons. As regards no blood grouping on the knife allegedly recovered at the instance of accused Sher Singh, it was argued that on the same day, three incidents took place in which two persons got injured, therefore, the blood grouping failed, though human blood was detected. It was argued by learned Additional Public Prosecutor that accused persons failed to explain as to how the blood came on the knives recovered at their instance. Finally, learned Additional Public Prosecutor argued that this is a fit case to initiate State vs. Sher Singh etc. SC No. 16/14 Page 17 of 43 Pages (18) perjury proceedings against PW1 Naresh for having turned turtle during cross examination on oath.
17. Per contra, learned defence counsel strongly argued that the injured himself having not supported the prosecution in his overall testimony, conviction cannot be safely arrived at. It was argued that a witness who flipflops in his testimony is a least reliable witness. It was further argued that since the circumstances pertaining to the alleged recovery of knives and shirt are extremely doubtful, presence of blood in any form on the same is inconsequential. Further it was argued by learned defence counsel that since no MLC of the accused persons subsequent to their arrest has been brought on record, there is nothing to rule out that the blood allegedly detected on the shirt and the knives could be of the accused persons also. It was also argued that even as per chief examination of PW1, the stabbing was done by Sher Singh and Nikhil and not by Kuldeep, at whose instance one of the knives was allegedly recovered. Finally it was argued that mere refusal of the accused persons to participate in TIP proceedings cannot be a ground to State vs. Sher Singh etc. SC No. 16/14 Page 18 of 43 Pages (19) convict them. In support of defence, learned counsel placed reliance on the judgments in the cases of Kuldip Singh vs State of Delhi, 2004 (1) JCC 63; Satish Kumar vs State, 1995 (4) Crimes 305; Gulab Singh vs State, 1995 JCC 470; Jitender @ Jeetu vs State, 2006 (3) JCC 1382; Sahdeo vs State of UP, 2004 (2) JCC 1022; and Montu @ Bahadur vs State, 2009 (4) JCC 3074.
18. At this stage, it would be apposite to traverse through the legal position, relevant to the present case.
19. In the case of Satish Kumar (supra) a Division Bench of the Hon'ble Delhi High Court took a view that where no efforts were made by the police to join independent witnesses before recording the disclosure statement and effecting the recoveries, the disclosure statements and recoveries become doubtful and cannot be safely relied upon to convict the accused. In the case of Gulab Singh (supra), a Division Bench of the Hon'ble Delhi High Court observed that where the deceased knew the names of the accused as the assailants but did not disclose the names to State vs. Sher Singh etc. SC No. 16/14 Page 19 of 43 Pages (20) the doctor who prepared MLC, the whole case of prosecution gets knocked down. In the case of Sahdeo (supra), the Hon'ble Supreme Court upheld the view taken by the learned Sessions Judge that where not proved by independent evidence, the legality of the recovery of incriminating articles on the basis of disclosure statement remains doubtful.
20. In the case of Sahib Singh vs State of Punjab, reported as 1997 (1) CC Cases 13 SC, the Hon'ble Supreme Court held that where IO made no attempt to join public witnesses before conducting the search, the consequent recovery loses its credence. In the case of Sadhu Singh vs State of Punjab, reported as 1997 (2) CC Cases 8, the Hon'ble High Court held that stereotyped statement of nonavailability of public witnesses is not enough when at the relevant time it was not difficult to arrange for independent public witnesses to join recovery or arrest.
21. In the case of Balbir Singh vs State of Punjab, reported as 1997 (1) CC Cases 136 SC, the Hon'ble Supreme Court held that where there were no specific marks on the recovered articles, the recovery becomes a weak piece of evidence.
State vs. Sher Singh etc. SC No. 16/14 Page 20 of 43 Pages (21)
22. In the case of State vs Maqsood Ahmed reported as 163(2009) DLT 39 DB, a Division Bench of the Hon'ble Delhi High Court held that although refusal to participate in TIP without sufficient reason goes adverse to the accused, but conviction cannot be done on the sole ground of refusal to join TIP.
23. In the case of Leela Ram vs State, 1990 (2) CC cases 402, the Hon'ble Delhi High Court held as under:
"27. Evidence of identification is to be regarded as inherently weak, least to be relied upon and in itself an unsafe basis for conviction. Even a mere possibility that the accused was or could have been shown would be sufficient justification for refusal to participate in identification proceedings and to reject identification evidence."
24. In the case of Parmod Kumar vs The State 1990 CrLJ 68 the Hon'ble Delhi High Court held:
"The witnesses who are examined by the prosecution should have been asked as far as possible to give broad description of the accused while recording their statement under Section 161 CrPC........In our view therefore, the appellant was State vs. Sher Singh etc. SC No. 16/14 Page 21 of 43 Pages (22) justified in refusing to join the test identification parade as he has clearly established the possibility of his being shown to the eye witnesses during the course of the alleged recovery of the alleged weapon of offence. "
25. In the case of Tain Singh vs State, 1987 CrLJ 53, the Hon'ble Delhi High Court held:
"4. It is settled law that the accused is not to prove conclusively that he was shown to the prosecution witnesses before he declined to participate in the identification parade. It is enough if he brings on record cogent circumstances to show that he was or could have been shown to prosecution witnesses while he was in police custody or when he was produced in court for remand."
26. In the case of Kanan & Ors. vs. State of Kerala, reported as 1979 Crl. LJ 919, the Hon'ble Supreme Court held that where a witness identifies an accused who is not known to him, in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. If no TIP is held, then it will be wholly unsafe to rely on the bare testimony of State vs. Sher Singh etc. SC No. 16/14 Page 22 of 43 Pages (23) the witness as regards the identification of the accused for the first time in court.
27. In the case of Budh Sen vs State of UP, reported as AIR 1970 SC 1321, the Hon'ble Supreme Court observed that it is considered safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses as to identity of the accused who are strangers to them, in the form of earlier identification proceedings and the person required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before identification; observing that possibility of the witnesses having seen the accused whom they were supposed to identify subsequently, the test identification parade could not be considered to provide safe and trustworthy evidence to convict the accused.
28. Besides, as held in the case of Jahid vs State, 2009(3) JCC 1760 and Kalloo Passi vs State, 2009 (2) JCC 1206 by Hon'ble Delhi High Court, without there being any other circumstance, recovery of weapons of offence and blood stained clothes at the instance of accused State vs. Sher Singh etc. SC No. 16/14 Page 23 of 43 Pages (24) does not lead to a conclusion that accused is the perpetrator of the crime. For, the solitary circumstance of recovery of blood stained clothes and weapon is not a circumstance inconsistent with the innocence of accused since it cannot be ruled out that someone else committed the murder and kept blood stained articles in the house of accused, as observed by Hon'ble Delhi High Court.
29. In the cases of Shankar Lal vs State of Maharashtra, AIR 1981 SC 765, Hon'ble Supreme Court and Ran Singh vs State, 1988 CC Cases 456, Rajkumar vs State, III (1997) CCR 134 DB and Raju vs State, 160 (2009) DLT 68 DB, Hon'ble Delhi High Court observed that presence of blood of the group on clothes worn by the accused at the time of offence, same as the blood group of the deceased certainly raises a strong suspicion against the accused but it cannot be made basis of conviction since prosecution failed to prove that blood group of the accused was not same as well; the probability of two human beings having same blood group cannot be ruled out and onus to disprove did not shift on accused only because of presence of blood stains on his clothes. State vs. Sher Singh etc. SC No. 16/14 Page 24 of 43 Pages (25)
30. In the case of State vs Motia, AIR 1955 Rajasthan 82, Hon'ble High Court observed in similar circumstances that it is not difficult to sprinkle a few human blood stains on articles recovered, if somebody wants to do so.
31. Falling back to the present case, there can be no quarrel with the legal proposition as advanced by the learned prosecutor that merely because a witness turned hostile to prosecution, that too in the cross examination after a break, the entire prosecution case cannot be thrown out. Even as regards the witness who opted not to support the prosecution, while analyzing the evidence on record, the court has to scrutinize the entire testimony in order to distinguish the portion of the testimony which can be relied upon from the portion which cannot be. Therefore, merely because the injured Naresh in his testimony as PW1 somersaulted, his testimony in its entirety cannot be discarded though the same has to be scrutinized minutely.
32. As mentioned above, the evidence relied upon by the prosecution to bring home conviction is the chief examination of injured State vs. Sher Singh etc. SC No. 16/14 Page 25 of 43 Pages (26) PW1 coupled with the recoveries of the knives allegedly used in the offence and the recovery of the blood stained shirt at the instance of accused Nikhil coupled with the detection of blood on the knives and the shirt coupled with the refusal of the accused persons to participate in TIP proceedings.
33. Refusal of accused persons to participate in the Test Identification Parade was pressed as an important incriminating circumstance by the prosecution. It certainly is so, provided there was no justification for such refusal. If the overall evidence on record read in its entirety, reflects that accused persons were justified in refusing to participate in TIP, then such refusal cannot be taken to be an incriminating circumstance.
34. So far as the identity of accused Sher Singh @ Poly and Kuldeep @ Kale is concerned, even as per prosecution case, both the said accused persons were known to the injured since prior to the incident and the injured Naresh specifically named both the said persons in his very first statement Ex.PW1/A. That being so, it remains unexplained as to State vs. Sher Singh etc. SC No. 16/14 Page 26 of 43 Pages (27) why the investigating officer opted to subject the said two persons to TIP proceedings Ex. C1 and Ex. C4. This unexplained effort on the part of investigator raises doubts as regards genuineness of the investigation on the aspect of identity of the accused persons.
35. As regards identification of the other two accused persons namely Nikhil and Amit, prior to the TIP proceedings, not a shred of physical description of the said two accused persons was elicited by the investigator from the injured Naresh or any other witness. Not only this, as reflected from TIP proceedings of Amit and Nikhil Ex.C2 and Ex.C3, both the said accused persons specifically gave a reason for their refusal to join TIP to the effect that they had been shown to the witness at the trauma center. Further, even as per prosecution case, as borne out from testimony of PW5 SI Sandeep Verma, PW7 Ct. Surender Singh and PW8 SI Ishwar Singh, all the accused persons were arrested on 14.02.2012 and on the same day they were taken for recovery of the incriminating articles. As per TIP proceedings Ex.C1 to Ex.C4, the IO applied for TIP proceedings as belatedly as on 29.02.2012. In other words, State vs. Sher Singh etc. SC No. 16/14 Page 27 of 43 Pages (28) the accused persons were taken out for recovery of the incriminating articles much prior to the TIP. As also was the situation in the case of Parmod Kumar (supra), possibility of the accused having been shown to the complainant cannot be ruled out and in such circumstances, the Hon'ble Delhi High Court held the refusal to join TIP as justified.
36. So far as the oral testimony of injured Naresh as PW1 is concerned, as mentioned above, in view of the somersault done by the witness, the testimony has to be closely scrutinized. Submission of the prosecution that PW1 turned hostile in cross examination as during the intervening period between the chief examination and the cross examination, the witness was apparently won over fails to stand the test. For, it is not in the cross examination that PW1 turned hostile; and even the break in the testimony was not between the chief examination and the cross examination but in the course of chief examination itself. Not just this, even the said break during the course of chief examination which was allowed by my learned predecessor was on the request of prosecution itself and not on the request of the defence; the break occurred since the State vs. Sher Singh etc. SC No. 16/14 Page 28 of 43 Pages (29) prosecution failed to produce the case property. In the chief examination carried further on 31.10.2012, PW1 was shown the case property which is knives Ex.P1 and Ex.P2 allegedly used in the offence and pant Ex.P3 which as per prosecution was worn by the injured witness at the time of the offence; PW1 identified only the pant and not the knives.
37. Going a step deeper, PW1 had turned hostile to prosecution on 20.09.2012 itself when he was chief examined for the first time. In the course of his first chief examination dated 20.09.12, PW1 could not give the exact date of the incident; even the time of the incident disclosed by PW1 was 04:30 pm contrary to the prosecution case that the incident took place at 05:30pm. Most importantly, even the role ascribed to the different accused persons by PW1 in his very first chief examination was contrary to prosecution case. PW1 in chief examination itself stated that it is accused Sher Singh @ Poly and Minti @ Nikhil who were carrying the knives and stabbed him. This statement of PW1 is contrary to the entire prosecution case based on asal tehrir Ex. PW1/A as per which the stabbing was done by Sher Singh @ Poly and Kuldeep @ Kale. As per Ex. State vs. Sher Singh etc. SC No. 16/14 Page 29 of 43 Pages (30) PW1/A, at the time of incident the injured Naresh did not even know the accused Minti @ Nikhil but in his chief examination as PW1, Naresh stated that Nikhil was known to him even prior to the incident while other two accused persons were unknown. Even as regards the motive behind the alleged assault, there was major contradiction in the sense that as per asal tehrir Ex. PW 1/A the motive was revenge for forcible eviction while as per chief examination dated 20.09.2012 of PW 1, the motive of the alleged assault was robbery. Despite such major contradictions in chief examination itself, prosecution did not seek permission to cross examine PW1 on 20.09.12 itself or even after conclusion of his chief examination on 31.10.12. Request of the prosecution to cross examine PW1 came before my learned predecessor only after PW1 was cross examined substantially by the learned defence counsel.
38. Further, in his first chief examination dated 20.09.12 itself, PW1 specifically stated that he was not read over his statement Ex. PW1/A which he signed, though he can only sign with difficulty. But State vs. Sher Singh etc. SC No. 16/14 Page 30 of 43 Pages (31) prosecution remained silent even on this aspect and opted not to seek opportunity to cross examine PW1 to show that statement Ex. PW1/A had been read over to Naresh before he signed the same.
39. As mentioned above, PW1 in cross examination went on to explain that he did not give statement to the police and his signatures were taken on blank papers. PW1 further stated that at the time of incident he was under the influence of liquor and could not recognize the assailants and further stated that accused persons had rather saved him. This statement of PW1 is described to be an improvement brought in by the witness to frustrate the prosecution, so as per prosecution, it cannot be relied upon. In order to analyze if the said part of statement made by PW1 in cross examination was on account of his having been won over, one has to also scrutinize the cross examination of the witness carried out on behalf of State.
40. As described above, PW1 on being reexamined by learned Additional Public Prosecutor stated that during his chief examination on 20.09.12 whatever he deposed, the same was under the influence of police State vs. Sher Singh etc. SC No. 16/14 Page 31 of 43 Pages (32) persons. In cross examination done by learned Additional Public Prosecutor, PW1 admitted having made no complaint to senior police officials or the court that he was pressurized by the police to make a false statement in his chief examination. No further effective cross examination of PW1 was done in order to establish that whatever he stated on 31.10.12 was under the influence of the accused persons or whatever he stated on 20.09.12 was without any undue influence of police.
41. As regards PW1 having not complained before any superior authority that he had been pressurized by the police to make a false statement on 20.09.2012, one cannot ignore the harsh reality that such complaints to be lodged by a person of such lower strata of society to which PW1 belonged, against a police official one needs extraordinary courage. At the same time, even from mighty prosecution side till date no formal application came seeking perjury proceedings or even inquiry against PW1 for his somersault.
42. Not only this, as mentioned above despite opportunity to the prosecution to cross examine PW1, nothing at all could be elicited by State vs. Sher Singh etc. SC No. 16/14 Page 32 of 43 Pages (33) prosecution as regards the said somersault; rather, except the sentence that PW1 did not lodge any complaint alleging that he had been pressurized by police, only suggestions were extended which were denied by PW1. Even as regards those suggestions, it would be important to note that regarding the identity of accused Nikhil @ Minti and accused Kuldeep @ Kale, not even a suggestion was extended by prosecution in cross examination.
43. It is under such circumstances that I cannot place reliance on any part of the statement of PW1 against any of the accused persons. But, as mentioned above, there are other circumstances also that need to be looked into.
44. Coming to the alleged recoveries of knives at the instance of the accused persons, as mentioned above, despite availability, the investigating officer did not join any independent witness at the time of the alleged recoveries. The alleged recoveries in this case are two knives allegedly recovered from accused Sher Singh and Kuldeep, one shirt allegedly got recovered by accused Nikhil and a pant allegedly worn by State vs. Sher Singh etc. SC No. 16/14 Page 33 of 43 Pages (34) Naresh at the time of incident. Even circumstances of the alleged recoveries are doubtful and the recoveries do not appear to be genuine.
45. As per prosecution case, from possession of each of the accused Sher Singh @ Poly and accused Kuldeep @ Kale, one knife was recovered. As submitted by learned defence counsel, in view of clear unchallenged statement of PW1 that no stabbing was done by Kuldeep @ Kale, the alleged recovery of knife from his possession becomes inconsequential so far as this case is concerned. As regards the other knife, which was recovered allegedly from accused Sher Singh, besides the nonjoining of public persons at the time of the alleged recovery, even due to the suspicious circumstances pertaining to his alleged arrest as described hereafter, the said recovery becomes extremely doubtful.
46. As regards the shirt allegedly got recovered by accused Nikhil, the circumstances of the said recovery also fail to inspire confidence. In his cross examination, the recovery witness SI Sandeep Verma stated that at the time of the alleged recovery, the house of accused Nikhil was found not locked and none of his family members was State vs. Sher Singh etc. SC No. 16/14 Page 34 of 43 Pages (35) found present in the house when the police party reached there. In other words, the said shirt was lying in an unattended house i.e at a place accessible to all and such a recovery is not a sound circumstance to bring home conviction. One also finds it unbelievable that an accused, knowing fully well that his blood stained shirt is a significant piece of evidence against him, would keep the blood stained shirt intact in his house instead of washing it away or destroying it. Even as regards the circumstances in which the blood stained shirt was allegedly got recovered by accused Nikhil, there are major contradictions for example PW5 SI Sandeep Verma stated that they reached the house of Nikhil for the recoveries at 11:15 pm while as per PW7 Ct. Surender Singh, they reached the house of accused Nikhil at about 01:00 am; and PW5 SI Sandeep Verma stated that when they reached the house of Nikhil, none of his family members were present, while as per PW8 SI Ishwar Singh, parents of Nikhil were present at that time. These contradictions also strike at the root of the alleged recovery.
47. As regards the pant allegedly worn by injured Naresh at the State vs. Sher Singh etc. SC No. 16/14 Page 35 of 43 Pages (36) time of incident, there is no evidence on record in the form of testimony of any doctor stating that he took the same from Naresh and handed it over to the constable on duty. The concerned constable being Ct. Jagbir Singh examined as PW6, who collected the sealed pulanda from hospital stated that neither he gave any acknowledgment of the pulanda to the doctor nor made any entry regarding the same in any register nor obtained any acknowledgment of receipt from the IO. Most importantly, PW6 specifically stated that the seizure memo Ex. PW6/A of the said pulanda did not even bear his signatures. The seizure memo Ex. PW6/A bears signatures of only Ct. Nahar Singh as a witness and does not bear any signatures or even name under the expression "produced by". Ct. Nahar Singh, whose signatures appear on Ex. PW6/A was not even brought in the box and was rather dropped by prosecution on 19.07.13 before my learned predecessor. These circumstances raise serious doubts on the claim of the prosecution as regards the alleged seizure of the said pant.
48. As regards non joining of public witnesses during the course of the alleged recoveries, the police witnesses came up with stereotyped State vs. Sher Singh etc. SC No. 16/14 Page 36 of 43 Pages (37) response that they had requested few passersby to join the proceedings but none agreed and their names and addresses were not noted down by the IO. Such a response is stereotyped in the sense that such witnesses never state that the person they requested to join the proceedings had some fixed place of residence or office around the concerned spot. In the present case also, the knives as well as the blood stained shirt were allegedly recovered in the areas where the investigating officer could have conveniently contacted independent public persons residing or working in the vicinity with the request to join the proceedings but he did not do so.
49. Coming to the forensic evidence collected by the investigator in this case, which is strongly relied upon by the prosecution, the said evidence also fails to connect any of the accused persons with the alleged incident.
50. As per FSL report Ex. PW 9/A, human blood was detected on the knife parcel Ex. P1, knife parcel Ex. P2, Naresh's pant parcel Ex. P3, Naresh's blood sample Ex. P4 and Nikhil's shirt parcel Ex. P5. As per FSL report Ex. PW 9/B, blood group A was found on knife parcel Ex.P2, State vs. Sher Singh etc. SC No. 16/14 Page 37 of 43 Pages (38) Nikhil's shirt parcel Ex. P5 and Naresh's pant parcel Ex. P3. But Naresh's blood sample parcel Ex. P4 did not give any reaction in order to find out the blood group. That being so, there is practically speaking no scientific evidence to connect any of the accused persons with the alleged offence. As mentioned above, there is no reliable evidence that parcel Ex. P3 contained the pant of the injured Naresh. In the absence of the blood grouping on the blood sample parcel Ex. P4 of injured Naresh, there is no scientific evidence to establish that blood detected on the the shirt allegedly got recovered by accused Nikhil and knife allegedly recovered from accused Kuldeep @ Kale was Naresh's blood or even was the similar blood as of Naresh.
51. There is also no evidence to establish that what was examined by the FSL, was the blood of Naresh only, since the seizure Ex. PW 6/A is extremely doubtful as described above. Even otherwise, as admitted by the doctor PW 9, it is not impossible for more than one persons to have a common blood group and therefore, merely on this evidence, the accused cannot be taken to conviction. State vs. Sher Singh etc. SC No. 16/14 Page 38 of 43 Pages (39)
52. Even as regards blood stained shirt allegedly recovered at the instance of accused Nikhil, prosecution was under a duty to get blood group of the accused persons also tested in order to rule out that the blood on the said shirt was possibly of accused Nikhil only; but the same was not done. Not just this, mere blood grouping is not conclusive, in so far as, a possibility of the accused and the injured having same blood group cannot be ruled out. Possibility of deliberate sprinkling of blood of the injured on the allegedly recovered shirt also needs to be ruled out in view of judicial pronouncements cited above.
53. It also remains unexplained as to why the knives allegedly recovered from the accused persons were not shown to the doctor to obtain his opinion as to if the injuries detected on injured Naresh were possible with the said knives.
54. Even as regards the place of incident and place of arrest, evidence of the prosecution lacks credence. As per all the prosecution witnesses, the incident of multiple stabbings of the injured Naresh occurred in front of Mother Dairy, H Block, Dakshin Puri, Ambedkar State vs. Sher Singh etc. SC No. 16/14 Page 39 of 43 Pages (40) Nagar, but despite it being a case of multiple stabbings in which as per prosecution two persons used knives, as per all the prosecution witnesses, no blood was found on the spot, which is difficult to believe. Not only this, as per the very first information received by police as regards the alleged occurrence, which was by way of DD No. 31A, Ex.PW 3/C, the incident occurred in jhuggi No. 443, Sanjay Camp. There is no explanation in the entire prosecution record as regards the exact place of occurrence. Further, in DD No. 31A itself even telephone number of the very first informant is mentioned but there is no explanation as to why the IO did not try to locate the person who gave the very first information regarding the incident in the jhuggi, on the basis of which DD No. 31A was recorded.
55. Similarly, even as regards the spot of arrests, evidence of prosecution is totally unreliable. The arrest memos Ex. PW 5/A of Kuldeep @ Kale and Ex.PW 5/B of Sher Singh @ Poly mention the place of arrest only as "521, bus stop near park". From such a sketchy description, the exact spot of arrest cannot be ascertained. Not only this, in his cross State vs. Sher Singh etc. SC No. 16/14 Page 40 of 43 Pages (41) examination, PW 5 SI Sandeep Verma, an alleged witness of the arrest, who proved the arrest memos stated that the area of Dakshinpuri is spread over 34 kilometers and he did not know as to how many bus stands of route No. 521 are there in Dakshinpuri and no site plan of the place of arrest was prepared.
56. Even as regards the occurrence of the alleged arrest, there are major contradictions in the testimony of police witnesses; for example as per PW 5 SI Sandeep Verma, all the members of the team were in uniform while as per PW 7 Ct. Surender Singh, SI Sandeep Verma and HC Inderjeet were in civil dress; even as regards the area over which Dakshinpuri is spread and the distance between the two spots of the alleged arrests, there are contradictions in the testimony of police witnesses. As regards information to be conveyed to the relatives of the accused persons at the time of arrest, PW 8 SI Ishwar Singh stated that he had conveyed the information of arrest to the relatives of the accused persons over telephone but he did not remember the telephone numbers as he had noted down the same on the rough papers; whereas the arrest State vs. Sher Singh etc. SC No. 16/14 Page 41 of 43 Pages (42) memos Ex. PW 5/A, Ex. PW 5/B, Ex. PW 5/J and Ex.PW 5/K bear not the phone numbers but the residential addresses of fathers of all the accused persons in column No. 7 as persons to whom the arrest information was conveyed. Thence, even the spot and manner of arrest becomes doubtful.
57. Prosecution has also failed to explain as to what happened to the purse which had allegedly been snatched away from the complainant at the time of the alleged robbery. Rather the investigating officer PW8 SI Ishwar Singh in his cross examination stated that in the asal tehrir, the injured did not take any reference to his purse or money, which is contrary to the testimony of injured PW1 to the effect that his purse was snatched by the robbers. There was no cross examination of PW1 on behalf of State as regards the testimony qua the said purse.
58. In view of the above described lapses in the prosecution evidence, it cannot be even prima facie recorded that PW1 injured Naresh committed any perjury, so as to call for any action against him.
59. To summarize, there is no oral testimony of any prosecution State vs. Sher Singh etc. SC No. 16/14 Page 42 of 43 Pages (43) witness or even the injured, connecting any of the accused persons with the alleged offence; as regards the alleged spot of occurrence, evidence of the prosecution is not clear; the evidence as regards the alleged arrest of the accused persons and the recoveries from and at their instance fails to inspire confidence; even the so called scientific evidence relied upon by prosecution is of no worth at all and refusal of accused persons to join TIP in the present case also was not without justification.
60. Therefore, it is held that prosecution has failed to prove its case beyond reasonable doubts. Consequently the accused persons are held not guilty and are acquitted of the charges framed against them. File be consigned to Records.
Announced in the open court (GIRISH KATHPALIA)
on 15.05.2014 ADDITIONAL SESSIONS JUDGE05,
SOUTH EAST, SAKET, NEW DELHI
State vs. Sher Singh etc. SC No. 16/14 Page 43 of 43 Pages